Lawfare Daily: The Trials of the Trump Administration, March 6

Summary

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The Lawfare Podcast: "The Trials of the Trump Administration"

Episode Date: March 9, 2026
Host: Benjamin Wittes
Panelists: Alan Rosenstein, Molly Roberts, Roger Parloff, Troy Edwards
Main Theme:
A comprehensive, in-depth roundtable covering current legal controversies and litigation arising from the Trump Administration’s actions across tech regulation, national security, criminal and bar proceedings, immigration policy, and judicial reactions—all with expert commentary, explanation of mechanics, and some darkly comedic asides.

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Episode Overview

This Lawfare Live panel—hosted by Lawfare editor-in-chief Benjamin Wittes and three senior editors, with public service fellow Troy Edwards—delved into a packed agenda of headline legal cases and developments under the Trump administration. The group discussed ongoing lawsuits involving TikTok’s divestiture, Department of Defense actions against AI company Anthropic, controversial prosecutions (including the Don Lemon investigation), baffling DOJ moves in major appellate cases, bar complaints against federal attorneys, evolving press restrictions, a flurry of immigration-related court orders, and rising judicial frustration encapsulated in their inaugural “Cri de Cœur” roundup.

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Key Discussions & Insights

1. TikTok Litigation Returns

[05:45–13:09]

• Background: Despite previous assumptions of resolution, TikTok’s divestiture from its Chinese parent ByteDance has landed back in court.
• New Lawsuit: Tony Tan, a Google shareholder backed by the Public Integrity Project, argues the new ownership structure doesn’t meet statutory requirements under the "Protecting Americans from Foreign Adversary Controlled Applications Act" (HAFACA).
• Legal Issue: The operational licensing of TikTok’s algorithm to the “new” American company raises questions of substantial foreign control.
• Key hurdles:
  • Standing: Can a Google shareholder claim specific harm? Alan Rosenstein:

    “The government will likely argue that is not sufficient standing…there are many investors in Google…this is not the sort of particularized injury….” [11:09]

  • Redressability: Is the plaintiff’s alleged injury actually fixable by a win in court?
• Outlook: Uncertain. If it survives dismissal, discovery could be “real fun." [13:09]

2. Anthropic vs. Department of Defense

[13:09–22:08]

• Current Status: DoD slapped an AI company (Anthropic) with a “supply chain risk” designation, initially threatening to bar all defense contractors from any dealings—even basic cloud services.

• Designation Scope Shift:

  • Original threat: An existential business threat.
  • Now: Burdensome, but “no longer an existential threat.”
  • Alan Rosenstein:

    “It's still a large threat…because it reflects the animus that the administration has to Anthropic. …But…the designation is likely to struggle in court.” [22:02]

• Room for Climbdown:

  • “Ideally they could come to some agreement where Anthropic gets to claim…its red lines are being respected, DoD gets to claim it’s fundamentally in control and everyone kisses and makes up.” [19:12]

• AI Speaks: Ben asks Claude (the AI assistant) for its take, which is surprisingly measured and references Lawfare’s own analysis. [20:02–22:08]

  “The question of whether an AI company should be able to set limits on how its models are used in warfare is genuinely important and not easy…”

3. Prosecution News: Don Lemon Case & Odd DOJ Moves

[23:10–32:06]

• Don Lemon’s Case:
  • 30 more defendants added, including overseas arrests under unusual circumstances and debate about government overreaching in executing arrest warrants.
  • Troy Edwards:

    “It could potentially rub the judges the wrong way…they’ve now put a defendant through that process...” [26:49]

• DOJ’s Appellate Head-Fake:
  • Government moved to dismiss its own appeal in law firm security clearance cases, then abruptly reversed course following leaks and pressure:
  • Roger Parloff: “I’ve not seen that, Ben.” [27:56]
  • “Some say it was Trump, some say it was Stephen Miller…” [29:33]
  • D.C. Circuit will now take up both the law firm and the Zaid security clearance cases together.

4. Fulton County: Enter the Mediator

[32:24–35:39]

• Special master/mediator Harold Melton (ex-Chief Justice, Supreme Court of Georgia) appointed to broker a resolution re: handling of seized materials.
• Government is eager to begin reviewing documents but judge tempers expectations—“everything is supposedly up in the air.” [35:39]

5. National Security/DOJ Investigations

[40:14–47:34]

• FBI Agent Firings:
  • DOJ purged agents working Iran counterespionage just days before U.S./Israeli strikes—a decision believed to have increased the real national security risk.
  • Troy Edwards points out institutional memory, relationships, and response speed are key in national security work.
• Auto-Pen “Scandal” Ends:
  • DOJ closes its investigation into whether President Biden’s use of an auto-pen to sign official documents was a crime.
  • “Investigators were never quite clear what crime, if any, had been committed…”
  • Even were there a crime, Presidential immunity would apply.
  • Parloff: “They were also supposed to go after aides…maybe the theory was you could find somebody that conspired to aid…”

6. Bar Discipline, DOJ Rulemaking, Halligan Investigation

[48:19–54:17]

• DOJ proposes a regulation to intervene in state bar disciplinary proceedings before state investigation.
• Investigations launched (or not) against DOJ attorney Lindsey Halligan for alleged professional misconduct in high-profile prosecutions—though the Florida bar now says there’s no pending investigation.
• Traditional DOJ stance: state bars should defer to internal Office of Professional Responsibility (OPR) reviews.

7. Press Access & New Pentagon Rules

[54:17–61:53]

• New DoD policy requires media to sign a 21-page agreement severely restricting news gathering—even off-record conversations—else lose press badges.
• Judge Friedman seems skeptical:

  “I’m not persuaded. All you have to do is say, 'I can’t answer the question,' but reporters have to be able to ask… That’s what the First Amendment is all about.” [60:04]

8. Immigration Litigation Firehose

[61:53–87:44]

• Refugee Suspension Upheld: 9th Circuit allows Trump’s blanket refugee admissions halt to stand for those not in the U.S. [62:57]
• Oversight Facility Access: Judge Jia Cobb again finds DHS cannot block members of Congress from entering ICE facilities with less than 7 days notice—DHS’s attempt to shuffle appropriations funds fails. [66:22]
• Minnesota Refugee Roundup Halted: Judge Tunheim enjoins new DHS practice of arresting all refugees on one-year anniversaries and “shipping them off to Texas.” [72:50]
• Contempt Hearings Proliferate: Minnesota judges summon ICE/DOJ over repeated failures to release property, follow release orders, or even keep people in-state.
  • Parloff:

    “Taking a man’s nail gun is low…that’s the tools of his trade.” [80:37]

• West Virginia Judges Furious: Systematic denial of due process in detention/bond hearings, despite repeated orders, triggers a “final notice" and threats of liability/contempt. [81:22]
• Three-Letter Case Updates:
  • JGG class: status reports dodged via appeal.
  • DVD class: summary judgment for petitioners, immediate appeal (and likely Supreme Court escalation).

Notable Quotes:

“You have to find the right plaintiff and the right legal organization…” – Alan Rosenstein on TikTok litigation [09:20]

“When Director Patel fires folks like this two to three days before US Israeli strikes on Iran…you can almost quantify the national security threat.” – Troy Edwards [40:55]

“Investigators were never quite clear what crime, if any, had been committed.” — NYT article, quoted by Parloff on the Biden-auto pen probe [44:24]

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9. The Cri de Cœur ("Judicial Outcry") Roundup

[87:44–93:06] Lawfare launches its "Cri de Cœur Watch," highlighting pointed judicial denunciations of government misconduct.

• Judge Farbiars, Newark:
  17 ICE “no transfer” orders violated in a short time; moves to demand personal sign-off by ICE brass and warns of criminal contempt for “willful blindness.”
  • Parloff:

    “He will find them in criminal contempt on a willful blindness theory.” [90:45]

• Judge Gary Brown, E.D.N.Y.:
  SIJ (“special immigrant juvenile”) held, wrongly, then ICE tries to revoke work authorization and fine the victim.
  "This isn't how things are supposed to work in America. Unquestionably, the laws of human decency condemn such villainy.” [93:03]

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Audience Q&A Highlights

• Court Orders & CBP Non-Compliance: No panelist had full details; to be revisited.
• Why call federal parties ‘the government’? – Custom/convention, even if imprecise.
• Efficacy of litigating immigration abuses:
  • “Courts get more conservative as you go up the ranks…” – Parloff [96:18]
  • Enormous cumulative effect at district court level, even if higher courts are more restrictive (Wittes).
  • Risks from jurisdiction-stripping provisions—Congress partly to blame.
• DFC & Trump’s tanker insurance: None of the panelists had the answer; suggestion to ask Lindsey Halligan, “insurance lawyer.”

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Memorable Moments / Tone

• Informality: Frequent dry humor, e.g., code names (the Spider, the Jackal, etc.), panelists’ faux exasperation, and tongue-in-cheek commentary.
• Transparency & Frustration: Panelists call out DOJ “gamesmanship,” government indifference, and the toll taken on practitioners, judges, and the rule of law.
• Dark Comedy at Bureaucratic Absurdity: Buttressing serious analysis.

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Notable Quotes with Timestamps

• “The government will likely argue that is not sufficient standing...it’s not the sort of particularized injury that is fairly traceable to him.” – Rosenstein [11:09]
• “If it somehow survives the kind of initial motions to dismiss, then we get into discovery territory and that gets real fun.” – Rosenstein [13:09]
• “I have seen the government drop appeals before... But I've never seen the government drop an appeal and then drop the dropping of the appeal.” – Wittes [26:49]
• “Taking a man's nail gun is low. …that’s the tools of his trade.” – Wittes [80:37]
• “This isn't how things are supposed to work in America. Unquestionably, the laws of human decency condemn such villainy.” – Judge Brown (quoted by Parloff) [92:22]

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Segment Timestamps

| Topic | Start - End | |--------------------------------------------------|-----------------| | TikTok Litigation | 05:45–13:09 | | Anthropic v. DoD | 13:09–22:08 | | Don Lemon Case & DOJ Appellate Flip-Flop | 23:10–32:06 | | Fulton County / Mediator Appointment | 32:24–35:39 | | DOJ/FBI National Security / Agent Firings | 40:14–47:34 | | Bar Complaints / Halligan Investigation | 48:19–54:17 | | Press Access / DoD Press Rules | 54:17–61:53 | | Immigration Litigation Wave | 61:53–87:44 | | Cri de Cœur Watch (Judicial Outcries) | 87:44–93:06 | | Audience Q&A | 93:12–106:12 |

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Summary Takeaways

• The Trump administration’s approach to law and policy is generating a barrage of complex, often unprecedented litigation.
• Courts—especially at the district level—are struggling, sometimes furiously, to keep basic constitutional guardrails on executive abuses, but structural and appellate barriers loom large.
• DOJ’s bureaucratic decisions, bar discipline games, and a wave of restrictive immigration policies reveal both legal vulnerabilities and windows for eventual judicial reckoning.
• Judicial patience, particularly in immigration and national security litigation, is wearing thin—often flickering into open judicial condemnation.
• The panel’s mix of expertise, candor, and gallows humor provides a rare, accessible education in the nuts-and-bolts of democracy’s legal emergency brake.

Transcript

[Alan Rosenstein]

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[Benjamin Wittes]

Foreign hey folks, Ben Whittis here. This episode is brought to you by the folks at Ground News. I want to talk to you about media and trust people. Listen to this podcast and read lawfare's content because Lawfare brings people information and analysis of a particularly high quality and that generates trust in an era when trust in news and media sources is low. Ground News is another organization that is working to create trust in media and media worthy of trust. It's an app that doesn't just bring you news on subjects you're interested in, it curates that news so that you can see information that people of your own political persuasion are likely to miss. It's not publishing its own stuff, but it's also doing a lot more than aggregating. It's identifying stories that are filling a blind spot that is pervasive for the left or for the right, for example. The app also shows you bias ratings and factuality ratings for each news organization covering a story so that you can see whether the story you're interested in is mostly being covered by news organizations of the left, right, or center. Let me give you a specific example. I just returned from Ukraine, so I was particularly interested to see how Ground News would handle stories about the war there. It flagged that an important story about deadly Russian strikes in Ukraine is being largely ignored by right wing press. On the other hand, it also flagged that left outlets are ignoring a story about Ukrainian nationals in Germany charged with trying to send parcel bombs to Ukraine at the direction of Russian intelligence. These blind spot notices are really useful as a way of seeing what information you are probably not seeing on stories of interest to you. Or consider the recent story about President Trump proposing voting reforms that demand voter ID and proof of citizenship of would be voters. The Ground News app shows 29 media organizations reporting on this story and it shows radically different headlines associated with it depending on the ideological valence of the outlet from the free press. Washington power struggle. Jeffries moves to block Trump's plan for federal election oversight. By contrast, the Daily coast headline Republicans bail on states rights so Trump can rig elections again. You can see information about each news organization's bias tendencies and its factuality ratings. You can even see information about its ownership. I find Ground News an impressive tool for checking my own biases and the biases of the media I consume and for seeing the news that people like me generally don't see. I encourage you to check it out. You can get Ground News's vantage subscription for 40% off, which allows unlimited access to the Ground News app by visiting groundnews.comlaw that's groundnews.comlaw one more time. Ground news.comlaw check it out. I really think you'll be glad you did. It is Friday, March 6, 2026. It is 4:00pm in Washington, D.C. and you, and I mean you are watching Lawfare Live. I'm Benjamin Wittes, editor in chief of Lawfare, and I am here with three Lawfare senior editors, Alan Rosenstein, Molly Roberts, and Roger Parloff joining from the Sconce studio, and one lawfare public service fellow, the estimable Troy Edwards. Guys, we got a lot of ground to cover today. We're going to start with the.

[Roger Parloff]

The.

[Benjamin Wittes]

The subject that keeps on not going away. It's TikTok. And Alan, it is finally in litigation. The, the TikTok suit has finally been f. Filed. Bring us up to speed. What, how did the TikTok thing that everybody thought was gone forever, you know, end up in court? And what's the, what's the situation?

[Alan Rosenstein]

So the question is, do you want to talk about the case or you want to talk about my rapidly deteriorating mental state now that I have to deal with? I really thought TikTok was behind me and yet it comes back.

[Benjamin Wittes]

Well, we're Going to get to your rapidly deteriorating mental health in a minute. Let's start with the facts that are driving your rapidly deteriorating mental health and then we'll get to the issue of emotional well being.

[Alan Rosenstein]

Yes, so the facts are that now that there is a buyer for TikTok, it's a consortium of American and some foreign investors that are purchasing TikTok from its Chinese owner, ByteDance, and turning it into an American company. And now that President Trump has labeled that a quote, qualified divestiture under hafaca, the Protecting American from Foreign Adversary Controlled Applications act, one of the truly worst acronyms of all time. A Google shareholder, Tony Tan, who actually was part of the FOIA litigation that last year uncovered the very interesting and quite legally deficient memos from Pam Bondi to the companies telling them that they could in fact do business with TikTok notwithstanding the law. Tony Tan has filed suit supported by a new nonprofit legal organization here in D.C. the Public Integrity Project, challenging the current deal. So this lawsuit is not challenging the non enforcement of the law for a year. That's probably not challengeable anymore since that's all kind of mooted. But he's challenging whether the deal currently actually satisfies the law itself. And he is alleging that in fact it's not a qualified divestiture because there is still quite a bit of operational relationship between this new TikTok and ByteDance, in particular around the algorithm which is being licensed to the new TikTok. And so he is alleging that the qualified divestiture is invalid and that it should be declared invalid. And you know, we should, we should enforce the law.

[Benjamin Wittes]

All right, but presumably this is not a new idea. This has been lurking around for as long as this law has been there and this deal has been on the table. Why has it taken this long for? If I were a plaintiff's lawyer, I would have clawed my way to the courthouse door immediately. What's the holdup here that, that caused this to take really several months for people to get into court?

[Alan Rosenstein]

Well, I mean, I think you needed to find a plaintiff that was willing to sue and you had to find a legal representation that was interested in doing this. Right. The folks that are doing this, this is not a big law organization. This is an organization that was created to, in its mission statement, sort of fight public corruption. And so I think you needed to find sort of the right plaintiff and the right, you know, legal organization to bring this, to bring this lawsuit.

[Benjamin Wittes]

All right, so what are the impediments we have talked about in the past how this is, you know, that what the administration did with TikTok is frankly unlawful. The statute is pretty clear about what it requires. And the administration basically said, starting on really the first week of the administration, I think the official statement read, and. And Pam Bondi, I mean, they've basically just refused to enforce the law. And then they had this deal that they put together. It's not really. And so what's the impediment that an investor is likely to face in saying nothing about this is legitimate?

[Alan Rosenstein]

Yeah, I mean, I think there are two. So the first is the dreaded standing issue. You know, this is why. This is the principle that not anyone can sue. To vindicate any legal or constitutional harm, you have to be particularly harmed by the government action. And this is why I, despite again having progressively lost my mind over 18 months, could not sue. As a pissed off con law professor, you had to find the right plaintiff.

[Benjamin Wittes]

Right. But you're not an investor in.

[Alan Rosenstein]

I'm not an investor. So what Tan is going to argue is that he's an investor in Google and he's a retail investor and he just owns some shares. Google is a Prime competitor to TikTok, specifically through YouTube shorts, which is its kind of short form video platform, and that therefore he has standing to challenge this. The government will likely argue that that is not sufficient standing. There are many investors in Google. Probably half of the country is an investor in Google just through passively managed index funds and 401 retirement accounts, and that this is not the sort of particularized injury that is fairly traceable to him. So there's going to be a fight. The first fight I think is going to be overstanding. The second fight is going to be over redressability, which is to say he's alleging my Google share price, the values of my Google shares are lower than they would otherwise be. Then in a world where TikTok is no more or something like that, the government is going to say, well, there's no guarantee that even if a court overturns this qualified divestiture determination that the injury that you're claiming is going to be redressed. To which he is likely to say something like, well, it's not directly redressed, but one of the key legal impediments to it being redressed, which is to say that you've called this a qualified divestiture, is now gone. So look, these standing cases like this are always difficult to predict because the doctrine is sort of baroque and complicated and mushy all at the same time. And so as much as it would delight me to see this lawsuit go forward, this is hardly a slam dunk. But, you know, it is being done by, you know, a serious plaintiff and serious people. And the real thing is that if it somehow survives the kind of initial motions to dismiss, then we get into discovery territory and that gets real fun.

[Benjamin Wittes]

All right. Meanwhile, a case that has not yet materialized but is, I think at this point, certain to materialize. Anthropic versus the Department of. Will it be captioned Department of Defense or Department of War?

[Alan Rosenstein]

I think it'll be Anthropic v. Hegseth.

[Benjamin Wittes]

Really?

[Alan Rosenstein]

I hope so. I mean, that. That goes hard. Yeah, that would be cool.

[Benjamin Wittes]

And I think the plaintiff should be. Claude. Claude. So when last we left off a week ago, Pete Hegseth had declared, but not declared, he sort of announced an intention to declare Anthropic a supply chain risk. But Anthropic had not received any notification that it had been designated a supply chain risk. And there were I's that needed to be dotted and T's that needed to be crossed, even though there's no, I guess there's an I in risk. So they needed to put the dot on the I in risk and in chain. But other than those two dots, there was nothing left to do. Now, I take it those two dots on the eyes have been done. What are we waiting for at this point, other than for Anthropic lawyers to make it across the street to federal court somewhere and file a complaint?

[Alan Rosenstein]

I believe that is all that we're waiting for. So DoD has sent a letter to Anthropic designating them as supply chain risk. My understanding is both under 10 USC 3252, which is the statute most of us thought was going to be the case, and then the other supply chain designation Risk, the fascsa, which I forgotten what it stands for, another failed acronym. But it's fundamentally a similar statute. And so I think, I think they have to file two lawsuits. I think for 3252, they're going to do it in California. And then FASC said they file actually directly in the D.C. circuit, I believe, because that's what the statute provides. And so they'll file. We'll see what they say. I mean, I think it's pretty clear what they'll say. You can read mine and many others writing on this and law firm other places. It's a pretty, I think, straightforward case. What's notable is that it sounds like the notification that DoD gave anthropic does not go as far as the initial X post that Hegseth did last week suggests. And let me explain a little bit. So the supply chain statutes allow the government to, if the supply chain designation is valid, to block the company from doing business on defense contracts as a prime or as a subcontractor. But the X post that Hegseth wrote went far beyond that. It purported to ban any company doing business with DoD from having, quote, any commercial relationship with Anthropic. That would both apply to many of Anthropic's enterprise customers generally because many of them are defense contractors and in the extreme would prohibit companies like Amazon and Google, which are obviously very large defense contractors, from selling Cloud Compute to Anthropic, which would be a death sentence for Anthropic. It sounds like that is no longer that DoD is not making that argument. That's obviously very good news for Anthropic because now the designation as a legal matter is no longer an existential threat to Anthropic. It's still a large threat to Anthropic because it reflects the animus that the administration has to Anthropic. And that might scare away investors and it might scare away enterprise clients. But that's not because of the legal designation. That's just because Trump issued a truth social poet calling Anthropic a bunch of woke polycule weirdos in all caps. On the other hand, though, that also might take some pressure off whichever district court gets this next week from issuing an immediate injunctive relief to Anthropic because now it matters much less. The actual stakes for Anthropic financially are in the hundreds of millions, maybe a billion dollars, which in any other context is a massive amount of money. And to Anthropic it's just not that big of a deal. So I still think Anthropic may very well get its injunction because I think it deserves it. The case against it is extremely weak for other reasons and I think ultimately it will win. But it's no longer a sort of every minute counts because every minute Anthropic is without Cloud computer. So we can all take a bit of a breath now, which is, I think, good. And it also, look, it also allows for the potential for behind the scenes negotiation and ultimately what I think would be best for everyone involved, a climb down, a de escalation. And even if Anthropic no longer does business with the government, it's because they have parted ways rather than the government is pretending that Anthropic is somehow like Huawei or Kaspersky.

[Benjamin Wittes]

And what does a climb down look like? I mean, if you wanted to de escalate this and the court appointed mediator was Alan Rosenstein, what is the thing that you would whisper in Pete Hegseth's ear and whisper in Dario Modi's ear, hey, you guys should, you know, gather around and deal on this basis. What does the climb down look like?

[Alan Rosenstein]

Well, so there are two levels of climb down. If you want to climb all the way down to base camp, then Anthropic and DOD come to an actual substantive agreement about how Anthropic's tools are used. I think DoD, despite all the tough words about Anthropic, clearly values Claude. It's by far the most useful model that it has access to right now.

[Benjamin Wittes]

It's literally currently such a supply chain risk that they're using it actively in ongoing military operations in Iran.

[Alan Rosenstein]

I was about to get there. Right, yes. Which, to be clear, is presumably one of the arguments that Anthropic is going to make on the merits about this. But clearly there are parts of DoD that clearly value Anthropic and value cloth. So ideally they could come to some agreement where Anthropic gets to claim, and hopefully truthfully, that its red lines are being respected. DOD gets to claim that it is still fundamentally in control of this and everyone kisses and makes up. That would be the full climb down. The partial climb down would be they can't come to an agreement and they do what civilized people do. When you can't come to an agreement, which is you shake hands and you walk away from the table, you don't, you know, one side is trying to shoot the other side.

[Troy Edwards]

Right.

[Alan Rosenstein]

And that would look like withdrawing the supply chain designation and we can all just be adults about it.

[Benjamin Wittes]

All right, well, I have asked Claude whether Claude has thoughts on the dispute. And Claude has offered the following answer. This is quite a significant and fast moving situation. Here's what happened as best as I can piece together, etc. Etc. And then he gives a long account of the facts. And then I don't know whether we use male pronouns for Claude, but Claude then says, as for my own perspective, I'm obviously not a neutral party here and I want to be upfront about that. That said, I think the question of whether an AI company should be able to set limits on how its models are used in warfare is genuinely important and not easy. Anthropic's position that it won't allow Claude to be used for fully autonomous lethal weapons or mass domestic surveillance reflects concerns that many AI researchers and ethicists take seriously. The DoD's counter position that it needs flexibility across all lawful uses also has a logic to it. From an operational perspective. What strikes me as most troubling about the government's response is the use of the supply chain risk designation, a tool for foreign adversaries against an American company seemingly as retaliation for a contract dispute. Anthropic cut off CCP linked firms at a cost of hundreds of millions of dollars in revenue and shut down a CCP sponsored cyber attack attempting to abuse Claude Lawfare, hardly the profile of a national security threat. The legal arguments suggest the designation is likely to struggle in court.

[Alan Rosenstein]

So that is it gladdens my heart that we have wormed our way into Claude.

[Benjamin Wittes]

So I just want to say that that is actually Claude's response to the following question. Do you have thoughts on the dispute between Anthropic and the Department of Defense over the use of claude? And it cites Lawfare, so I had no idea it was going to do that. But I just bring it to your attention. Alan, thank you very much. And we are going to move on to non AI related matters and you should feel free to hang around or disappear as you prefer. Troy Edwards I hear there have been some additional arrests in the matter of Don Lemon's case, including some of people who are chilling out on vacation. What's going on in Minnesota?

[Troy Edwards]

A lot of new lemons. So 30 additional defendants were added. We mentioned this last week and in the meantime, since last Thursday's superseding indictment, the court process has played out as you'd expect generally, which is a number of initial appearances across the country where some of the defendants were located and getting these defendants all back to Minnesota now for later arraignments before magistrate judge or a district judge. A couple things worth noting. One is that I thought it was interesting and it ties into some of our take with Eric Columbus and Anna Bauer was the odd procedural mechanisms going on by the government. One of the defendants at least was internationally located, allegedly. From Harmeet Dhillon on Twitter on vacation and there are a number of reasons why a government may legitimately seek an arrest warrant and execute that arrest warrant overseas and potentially then prompt a long detention process where that defendant has to now be transported from overseas back to the United States. I think there are a couple questions worth raising in this case, which is before this superseding indictment, the defendants sought detention on the so called leaders of this group of defendants and lost multiple times both at the magistrate level and at the appealed argument to the district level and the district court did not spare them any harm. The government, in referring to the arguments as speculative and not fact or law based. And here the government has now sought an additional indictment over a month after the incident, with no real claim to ongoing danger, but sought this arrest warrant and executed it overseas, which will now inevitably prompt what could be a multi week process for that defendant to be transferred here. I mean, the normal process, you'd want to preserve evidence, you don't want to give anybody a chance to delete. But it's been multiple weeks over a month now, and allegedly they've secured a number of so much evidence that they need to seek a complex case designation. So I find that odd and could potentially rub the judges the wrong way that they've now put a defendant through that process. And the second that is interesting is there were these original nine defendants, including Ms. Fort and Don Lemon, who have now argued that the case ought to be not designated complex. The government tried to seek a later trial date and later discovery and motions deadlines by saying it was a particularly complex case under the Speedy Trial Act. These defendants argued against that. The court ultimately ended up ruling that it wasn't complex, that it was simple. It was a number of actions, but all within an hour of time, but still said that there appears to be voluminous discovery. And so the government ought to be able to respond to motions by the defense by April 23rd. The defendants, Don Lemon and Ms. Fort have come back to say there are these preliminary arguments we need to have resolved before these motions, including getting the grand jury materials to determine whether or not what the government did was appropriate. And as we saw in the Letitia James and James Comey case, that court in the Eastern district of Virginia bifurcated. They set these grand jury deadlines, motions deadlines first, then these later motions to dismiss deadlines later, which made sense here. The judge has not ruled on this motion. All the government has said back is we intend to follow the April 23rd deadline. So I anticipate the judge likely setting earlier deadlines for those preliminary motions.

[Benjamin Wittes]

All right, Roger. I think we saw something this week in the law firm cases that I at least have never seen, which is to summarize, the government announced to the court that it was dropping the appeals of the law firm decisions and then about faced and said, no, we're not. I have seen the government drop appeals before, usually, but not exclusively when administrations change. But I've never seen the government drop an appeal and then drop the dropping of the appeal. And so my first question is, have you ever seen the government head fake the dropping of an appeal before, leak the fact that it was dropping it to the Wall Street Journal and then indignantly tell the court that it wasn't dropping it?

[Roger Parloff]

I've not seen that, Ben.

[Benjamin Wittes]

Just checking.

[Roger Parloff]

Yeah.

[Benjamin Wittes]

I mean, you've been at this a while, and I figured if anybody at Lawfare was going to have a memory of that, it was either going to be you or me.

[Roger Parloff]

No. And I looked up in the Federal Rules for the appellate procedure to see they don't seem to have specifically standards for withdrawing a voluntary motion to dismiss. And so we're a little unclear on it. It sounds like the brief that was due today will be filed today, at least. There's been no motion to the government is supposed to file its brief today. There's been no motion to give them an extension. So apparently that's still on, as you say, on Monday, they filed a motion, an unopposed motion to voluntarily dismiss. Everybody wrote their stories about the winners and the losers and the including me,

[Benjamin Wittes]

Alan Rosenstein and I wrote a, wrote a the Situation column about how anthropic should fight because, look, the law firms that fought just prevailed. Eventually, the government dropped the appeal. And then the piece comes out and I guess Trump read it and said, I can't have Wittis triumphing over me like this.

[Roger Parloff]

Yeah. Well, there is a lot of speculation, and some say it was Trump, some say it was Stephen Miller. But apparently, you know, somebody did not seem to be clued in that the DOJ was going to be doing this. But. The D.C. circuit can see what's happening, and it must be a sort of hint to them about what the solicitor general thought about the quality of the arguments earlier in the week. The only other thing, you know, the, the, the court has decided that it will hear this case, even though we don't have the date yet of the oral argument, but it'll hear this case the same day that it hears the Mark Zaid case. And the government had tried very hard to put this case, these cases, there's four cases, of course, there are four law firms involved. Perkins, Coey, Jenner and Block, Wilmer, Hale, Sussman, Godfrey. They wanted to do the Zaid case first and then put the other one down the road, the law firm ones, because they share one issue, which is security clearances. And the Zaid case is the government has a chance of prevailing in, because when you deprive somebody at least one person of a security clearance, you have enormous the executive branch has enormous discretion. It's very hard to challenge that. Not that Zaid doesn't have a good case. Anyone below. But that'll be a difficult one here. Part of the executive orders, there were five paragraphs, one paragraph wiped out in a blanket fashion, security clearances for anyone at these law firms. You know, a thousand people. You know, maybe a paralegal who was, who might be an army reservist who had a, you know, he would lose his. So I think they would rather have litigated Zayd first. And maybe somebody thought, you know, let's just get rid of this, the law firm cases altogether and maybe we can win Zaid.

[Benjamin Wittes]

Yeah. As horrible as the Zaid case is, and it is horrible, it's a much better case for them than the. Than the law firm case.

[Roger Parloff]

Yeah.

[Benjamin Wittes]

All right, so do we know anything about, I mean, everybody's speculating about what must have happened to create this reversal, but we don't actually know anything about the behind the scenes decision making.

[Roger Parloff]

Right? I certainly don't. And the papers don't seem to either. Just this speculation that. Or maybe more than speculation that Steve Miller was very angry and presumably Trump was angry.

[Benjamin Wittes]

All right. Meanwhile, in Fulton county, we have a mediator, which is, I gotta say, a direction. I did not expect that case to go. What do we know?

[Roger Parloff]

Yeah. March 4th, the judge appointed. He gave the parties a chance to agree on a mediator, and apparently they agreed on two, but neither was available. And so on March 4, I volunteer the judge appointed this fellow who is Harold Melton, former chief justice of the Georgia Supreme Court. He was appointed in 2005 by Sonny Perdue, who was a Republican, and he was elevated to chief justice by Brian Kemp, who, as you know, is a Republican. So, but. And he's supposed to have till March 18 to see if he can mediate something. There was. And, you know, presumably it might be as simple as give all the documents back to Fulton county, but you can copy them. You can make a copy. I'm sure if it's something like that, each side is going to want the originals. But there was also a. Back on the 27th of Friday, there was a telephone conference which Anna Bauer got the transcript for, and they were discussing some of these open issues. And one thing the government wanted to know, the government was apparently reading into the mediation order. It thought, well, the judge, Judge Booley has already said essentially that it's not going to be all or nothing. We're going to have something. So why can't we start reviewing the documents. And Booley did say, no, I didn't say that. It's true that in many cases in Rule 41, it's not an all or nothing resolution, but it is still conceivable that if we do not have a mediation, we would come back, I would hear, hear everything, arguments, maybe evidentiary hearing and I would decide, yeah, the government has to give everything back and can't keep anything. So anyway, everything is supposedly up in the air. So far the government has not says, it has not reviewed the documents, but there's actually nothing. There's no order preventing them. They have said orally, we're not going to do that. And they were sort of wondering, do we really have to keep by that? And the judge said, well, I haven't ordered it, but I would prefer you keep to that.

[Benjamin Wittes]

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[Molly Roberts]

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[Benjamin Wittes]

Yeah, so I look at this and I still don't understand what is actually under investigation here. But I suppose we will leave that question for a different day.

[Roger Parloff]

I think that, and maybe Troy knows more on this, but I mean I just think that it isn't simply a probable cause question. It's there's because Rule 41. There's also this issue that you don't want this to become the norm when, when any defendant is, is subject to a search, you don't want him to be able to go into court and second guess the magistrate before any, any, before any criminal proceeding has begun. And I, I think he wants to avoid setting that sort of precedent and I think all the precedents that exist try to avoid having this become a, something that happens in every single criminal case. Right.

[Benjamin Wittes]

All right, let's talk about the rather amazing update we have in the case of the fired FBI figures who were involved in the Mar A Lago probe and dismissed last week. We talked about them last week but it seems LT that they may have been working on Iran related stuff. So what do we know about who the FBI agents were who Kash Patel dismissed in a retributive fit the other day.

[Troy Edwards]

So what we know from public reporting now, and I'll get to this in a second, Representative Benny Thompson's letter to Director Patel is that a number of these folks were involved in focusing on counterespionage efforts of our foreign adversaries, particularly Iran. And I've disclosed this last time I know These folks. And so I'll stick to what these kind of reports are saying. These folks, these were focused on countering any espionage activities of Iran or other areas in the Middle East. And what's worth talking about is in a heightened threat space like after the US And Iran or Israeli strikes on Iran, is how these agents operate in either the counter espionage or counterterrorism space. Folks in the FBI are tasked immediately with filtering through intelligence reports and leads that come from around the world. And their responsibility is to assess these threats and parse them out for credible threats and which ones to follow up on, which ones not. And particularly focused on threats to the home front in the United States after strikes like this. So as they do that, they then pick out leads and intelligence worth following up on and then seek legal process, for example, from ausas in the national security space. And they'll get search warrants or subpoenas to be able to bolster up what we know about any potential individuals that are either traveling in an abnormal fashion or traveling into the United States. A lot of that requires institutional muscle memory relationships to know which agencies they can go to to find out what information, and appropriately so, in case it becomes a criminal case. But also relationships and muscle memory that increase speed and the ability for you to be able to react to these threats very quickly when Director Patel fires folks like this two to three days before US Israeli strikes on Iran. Now you're able to almost quantify the national security threat that we're facing when folks like Director Patel diminish our ranks, remove that institutional memory and increase the amount of time it may take for folks who have to fill this space and don't know either the people to call or the steps to take to get to the AUSAs for that legal process. And that's not to say these folks aren't good at what they do, but. But when you remove those relationships in that muscle memory, you can quantify how much danger we may be in in a heightened space after these strikes.

[Benjamin Wittes]

All right, well, message to Mr. Patel. It's never too late to do the right thing. All right, Roger. Speaking of important criminal investigations, I hear that the famed auto pen investigation has come to naught and that no crime the Justice Department has determined was committed by President Biden signing documents with an auto pen. What do we know? And do we know even what crime they were investigating?

[Roger Parloff]

Apparently that was one of the issues that had the prosecutors puzzled. They had been, apparently. And what I know about this, I know there was a New York Times article from Mike Schmidt, Devlin Barrett, and Alan Foyer and Ed Martin had started an inquiry when he. Back when he was U.S. attorney, interim U.S. attorney in D.C. apparently, Bondi ordered that this be investigated. And the Times has a great line in here about the Jeanine Pirro prosecutors. He says investigators were never quite clear what crime, if any, had been committed. So I think that was a big stumbling block. It had something to do with him allegedly not being mentally competent, that is Biden, and then using the auto pen, maybe his aides. I do want to say Jeanine Pirro had. I need to give her credit. She did. I thought she had a funny tweet here. After Schmidt tweeted out his article, the exclusive and breaking New York Times headlining headline about this investigation being over, she, quote, tweeted it and said, we cannot comment on ongoing investigations, which seemed to be a way of saying it is so ongoing, while purporting to abide by the former DOJ manual.

[Benjamin Wittes]

Well, I have some questions about this that I hope you'll be in a position to address for me, Roger. So, first of all, was the auto pen used for official acts by President Biden, or was it used, you know, to sign unofficial personal correspondence?

[Roger Parloff]

Yeah. My understanding is that these would be official documents.

[Benjamin Wittes]

So assuming arguendo that you found a crime that would otherwise be prosecutable, isn't the nature of the use of the auto pen for official acts, doesn't that necessarily put any presidential use of the auto pen within the zone of absolute immunity under the Supreme Court's opinion in. In U.S. v. Trump?

[Roger Parloff]

You know, the authors of the article also indicated that the investigators stumbled over that hurdle as well, that, yes, this would be absolutely immune.

[Benjamin Wittes]

Even so, in other words, Biden would be absolutely immune for any violation of any law that they couldn't find that this might have violated.

[Roger Parloff]

Yeah.

[Benjamin Wittes]

Okay. Is there anything else that needs to be said on this very important investigation?

[Roger Parloff]

I think, theoretically, they were also supposed to go after aids. So maybe the theory was you could find somebody that conspired aiding and abetting

[Benjamin Wittes]

the absolutely immune violation of a statute nobody can identify. All right, I'm just. Just asking questions here. All right, Molly Roberts, let's talk about somebody who may actually be in trouble, which is not President Biden. It's Lindsey Halligan. I hear the Florida bar has questions.

[Molly Roberts]

You may have heard that. The Florida bar did say that, but there is a little plot twist at the end of this story. So let me start at the beginning. So, chronologically, what happened this week was the Justice Department proposed a change to federal regulations Saying that it would let federal officials intervene in state bar disciplinary proceedings having to do with its department attorneys, and they would essentially get a first look at any complaints about attorneys before the state bar. And that was a little odd because they don't have any authority to do that. They cited a bunch of regulations just generally about their ability to appoint their own attorneys, which. Sure. That doesn't have anything to do with whether their attorneys are barred in a certain state.

[Alan Rosenstein]

Yeah.

[Benjamin Wittes]

Although the traditional position of the Justice Department, for about as long as I can remember, is that state bars should defer to the Office of Professional Responsibility, as in the first instance, as to attorney discipline in. You know, that basically, they ask state bars to defer to OPR. OPR 10 spends 10 years investigating something and then refers the results to the state bar. Am I misremembering that he would know

[Molly Roberts]

better than I would do it?

[Troy Edwards]

That's my memory. I'll disclose that. I never had to encounter the process.

[Benjamin Wittes]

You never had an OPR investigation directed against you?

[Troy Edwards]

Not that I recall.

[Benjamin Wittes]

You did not put your toes on the line enough.

[Troy Edwards]

Yeah.

[Benjamin Wittes]

Sorry. Molly, go. Please do go.

[Roger Parloff]

I don't know if OPR still exists, but.

[Benjamin Wittes]

Right, right, of course.

[Troy Edwards]

Although I used to poke. Your phrase reminded me. I used to poke. That I knew him at all, but I poked. Michael Hayden's book. I think it used to be called Chalk on the cleats or something. Or his phrase was always chalk on the cleats. And my slight pushback to that was always, if there's chalk on your cleats, it means you stepped out of bounds even slightly on the football field. And so I usually try to avoid the chalk lines. And I think everybody else in DOJ does.

[Benjamin Wittes]

Sorry, you were saying, Molly?

[Molly Roberts]

Well, yes, so I was saying that this proposal said that it was necessary because over the past several years, political activists have weaponized the bar complaint and investigation process. And so they needed to make this formal change to the rules whereby they would request that a state bar association suspend any parallel investigations until the department had done its review. So that's what the DOJ said. Everyone was wondering, sort of, okay, what's this about? Why this proposed rule? And the following day, the news that you mentioned broke, which was that the Florida State Bar was conducting an investigation into Lindsey Halligan. This came from a nonprofit group that filed complaints against Halligan with both the Virginia Bar and in Florida. She was an insurance lawyer in Florida before she joined the Trump administration and was operating in the Eastern District of Virginia. And that news broke, and it Wasn't that surprising to people who'd been following the cases. They were complaining about her conduct in the prosecutions of James Comey and Letitia James. And as we've covered here on Lawfare Live, there was a lot there, particularly in the Comey case. Everything from making fundamental misstatements of the law during her presentation at the grand jury, to presenting in court this indictment that wasn't the one that had been approved by the full grand jury, to presenting to the grand jury attorney client privileged information. So that was the alleged misconduct. People were pretty familiar with it. It made sense.

[Benjamin Wittes]

And do we know that that's the conduct that the Florida bar is examining, or do we merely know that there is an investigation related to something?

[Molly Roberts]

So this the latter. But. And this gets me to the plot twist. This is what we believe to be the case. Until today, the Florida bar said there is no such pending bar investigation of Lindsey Halligan. Said that all that happened was the bar received a complaint against Lindsey Halligan and opened a monitor file on that complaint, as it does with any complaint. But this was, again, kind of weird because the reason to believe that the bar had done this wasn't only that it had seemed to confirm an ongoing probe by saying it didn't comment on active cases, but also in its letter to the nonprofit that submitted this complaint, it said straight up, we already have an investigation pending. So that's where we are now. And what exactly happened and why? They said they had an investigation pending, and now all of a sudden say there is no pending investigation. We don't know.

[Benjamin Wittes]

Interesting. And do we have any sense? I mean, normally when a bar says that it has a pending investigation, assuming it's telling the truth, that means we're x or 3x number of years from a resolution of the matter. Some bars are speedier than others, but none of them breaks the land speed record for investigative activity. Do we have any sense of where this Florida investigation, if it exists at all, is in the process?

[Molly Roberts]

I think fairly early. I think it would be a this could take years thing. The bar would have opened the investigation and it would be doing the fact finding. But then its recommendations would go to a grievance committee, which would have to determine that there was probable cause, and then that would go to the courts. And I think we're at like the very beginning, even of the bars investigation, fact finding investigation. If the. If an investigation was ever open, which they're saying it was not.

[Benjamin Wittes]

So, Troy, you used to work for Lindsey Halligan for like a day and a half. Assume that you are have full confidence in her ultimate exoneration.

[Troy Edwards]

I have no doubt that this time she will remember which side of the courtroom to sit on.

[Benjamin Wittes]

All right, so, Molly, let's talk about the New York Times suit against the Department of Defense. There was a hearing today in which the Times challenged the new press rules of the Department of War. My first question is, in the court hearing, did judge and counsel refer to it as the Department of Defense or Department of War?

[Molly Roberts]

Department of Defense. The case says that it is New York Times versus Department of Defense, also known as Department of War. But there was a brief exchange and I can't give you the exact words of it because I was listening during on the public access line and the audio was very in and out. But there was an exchange about how there had not been an act of Congress and that was why he was saying Department of Defense.

[Benjamin Wittes]

So interesting. So we're still going with Department of Defense.

[Molly Roberts]

It was certainly also written above Department of War, although there was the. Also known as.

[Benjamin Wittes]

It's the first time a federal agency gets an AKA designation which, you know, we usually refer use for criminal alternative names. You know, us versus Benjamin Wittis, AKA the Spider or something like that. But, you know, I think AKA Department of War is a good one. All right, so what happened at the hearing?

[Molly Roberts]

Yeah, I did not know you were also known as the Spider. So I will file that away.

[Troy Edwards]

You will be now, if that's all right.

[Molly Roberts]

Get that edited on the little live stream title thing. So I'll try to keep it pretty brief. The real TLDR would be that the judge seemed very skeptical of the government's arguments. But essentially this agreement is a 21 page agreement that media outlets were asked to sign last year that prohibits gathering or publication of information not authorized by the government. And that doesn't just mean like classified information that includes declassified information, off the record conversations that you've had anywhere, basically anything that the government wouldn't really like you to publish. So wouldn't really like to be published. And journalists had to acknowledge that they could be deemed security risks and that their press badges would be taken away if they asked for this information. And news organizations including the Times, did not agree to that. And then their press access to the Pentagon was revoked. A new Pentagon press corps was announced that included like Laura Loomer and Matt Goetz. And the Pentagon was very happy about this. Pete Hegseth posted a little waving goodbye emoji on X. And the Pentagon press secretary, I think also was sort of celebrating. So the Plaintiffs the New York Times argued that the order violated due process because it was unconstitutionally vague. It didn't tell journalists what normal news gathering that is First Amendment protected would cause them to lose this badge. As it was so open ended that it opened the door to arbitrary enforcement and then First Amendment. And that's where most of the argument was spent. Kind of two points a little technical. Basically the Pentagon's argument was this is a non public forum. These are areas of the Pentagon that we've decided to open up to the press so we have a little more ability to restrict there what news organizations can do. And the plaintiffs are arguing, well even then your restrictions have to be viewpoint neutral and reasonable. And they're not viewpoint neutral. Not they pointed out and they were really clear about this. Not based on ideology. Fox News has had its credentials revoked too because it refused to agree, but based on the viewpoint that journalists should be able to do journalism and that they should be something more than the mouthpiece for the organization. That they should try to dig beneath what the Department of Defense or War says and try to figure out what's really true. And essentially that the policy gives unbridled discretion to defense officials to decide what outlets get to be in the Pentagon. There's a lot of focus on the Washington Post having solicited sources and the Pentagon saying that violates our policy. And then Laura Loomer asking for tips and the Pentagon saying yeah, that's all good, that is completely fine, go right ahead. And sort of for the same reasons they were arguing the policy is not reasonable. They say anyone who's a security risk is barred. But the standards aren't concrete enough to actually have anything to do with, with national security. And also these non public fora were opened up for the purpose of transparency. That's what the department had said about them. And so given that's the purpose, the restrictions aren't reasonable. And then a second claim that this affects news gathering also outside of those fora. And so then that's a higher standard that the policy would have to meet. And that's because anything that you publish also and facts that you gather not within the Pentagon, you could have your press credentials revoked for the Pentagon. On the.

[Benjamin Wittes]

Who was the judge at this hearing?

[Molly Roberts]

Friedman. Paul Friedman was the judge. Bill Clinton appointee. He was again very, very skeptical. It was sort of interesting because there was the AP case recently too, also having to do with press restrictions. And in that case the judge allowed the restrictions to stay in place pending appeal. We'll see what happens here. But this judge seemed really skeptical. And so the Pentagon argued that it has a compelling interest in protecting national security information. The policy is reasonable because it does so while still allowing press access. And it said access is a privilege, not a right. But of course, they did decide to open this non public forum to some journalists and then created credentialing rules that the plaintiff argued are viewpoint discriminatory. And the judge sort of asked, well, what exactly are you barring? And the Pentagon said, there are no hard standards. And then the judge said, okay, so if you don't have unbridled discretion, then what do you have? Bridal discretion. And he went into the Laura Loomer Washington Post thing too. And he kind of laid into the policy that the department has against reporters asking for information that's not authorized for release. And he said, I'm not persuaded. All you have to do is say, I can't answer the question, but reporters have to be able to ask. And he brought up the Pentagon Papers, he brought up 9, 11, he brought up Abu Ghraib, and he said, again, reporters have to be able to ask. Right now, independent reporting might be more important than ever because of the recent military interventions in Venezuela and Iran. And at one point he said, that's what the First Amendment is all about. So very skeptical.

[Benjamin Wittes]

All right, let's do our weekly immigration roundup. And for the cheeky person who last week got upset at me for using the phrase immigration roundup, I just want to say when I say immigration roundup, I mean a roundup of immigration cases, not a roundup of immigration detainees. That is what the government does. We do a roundup of immigration law matters. Roger. It was a bad week for refugees in the 9th Circuit decision yesterday, mostly allowing the suspension of refugee admissions admissions in. So what did the ninth Circuit do and what is the status of the matter?

[Roger Parloff]

Yeah, this is the Pasito case, and it has painful aspects, but I think it's probably not that surprising. And I don't know if immigration lawyers would go on the record and say that, but that's my. I suspect that's how they're reacting. Pacito is the pseudonym for a guy from the Democratic Republic of Congo. He and his wife and his baby had gone through the process of vetting to become a refugee through the US Refugee. Admissions program. And they were due to travel on January 22, 2025. And of course, on January 20, Trump became president, signed an executive order and said he was suspending the whole program. This suit is not just Pasito, it's class action. And they had, you know, they had sold all their belongings and had moved out of their rental place. And so many people are in their position. And the judge in Seattle, Jamal Whitehead, who's a Biden judge, had issued a preliminary injunction in February, last February, February 2025. In July, the U.S. this 9th Circuit, stayed it. And yesterday it, you know, wiped it out, but it didn't completely now. So this is suspending the program for those who are not yet in the US the part of it that they did approve, affirm Judge Whitehead was as far as funding organizations that provide refugee services for people that are already here. There are other attacks that Trump has made on people already here, and those are in different cases. There's one in front of the D.C. circuit right now that had been in front of Judge Moss, where Moss entered in injunction. I think those, the people have a much better chance. This was a panel and to be frank, I haven't read the whole thing. This is a long opinion and it came out just yesterday. It was Richard Clifton of G.W. bush, J. Bibby G.W. bush and Kenneth Lee Trump. Those are the judges. And the only partial dissent was the Trump judge who would have done something even more callous. I'm not exactly sure what. I think he would have stopped the funding as well. So it's not a, it's a, not a great. Where it goes from here is I don't know.

[Benjamin Wittes]

All right. Meanwhile, Judge Gia Cobb is at it again. I believe this is the third time she has ruled against DHS efforts to restrict members of Congress from accessing ICE facilities. Lt what's different this time? And is this like a one woman crusade to solve this problem that is doomed to failure, or is she finally hit the right note to get this, give this legs note.

[Troy Edwards]

If this was anyone's one woman crusade, it was Nome, who is no longer with us. But this now she's not dead.

[Benjamin Wittes]

I mean she's no longer in office. I think she is still with us for lawfare purposes.

[Troy Edwards]

The Judge Cobb's opinion, you're right, revolved around again, whether or not DHS could lawfully block or prevent is the right term members of Congress from engaging in their oversight capacity by stopping them from entering their facilities, the DHS or ICE facilities, because there is a rider attached to certain appropriations that Congress has issued to ICE and dhs. And this all flows from the appropriations clause. So this is now the third time. The reason it's a third time is because DHS first issued this policy in June and then in December, the Court struck it down or granted this TRO and paused it and reverted to status quo. But In January, on January 8, then Secretary Noem, who was among the living at the time, issued this policy that was the same in substance, but tried to shift around the funds that purportedly were being used to effectuate this seven day block or the seven day notice requirement. And so specifically they were trying to shift away from these section 527, which is just referring to that rider limiting the funds and how they could be used, shift them to the OBA funds, the One Big Beautiful Bill act funds which had no such attachment to this section 527 restriction. And the judge later granted a TRO. And now we're here where the judge is ruling more substantively under the Administrative Procedures act to decide whether or not the we should revert back to the status quo and bar DHS from implementing and effectuating this, this seven day notice requirement. And Judge Cobb issued in the affirmative for the plaintiffs, stating that this whole move by DHS to shift around and say no funds were used to effectuate this policy. Judge Cobb dug into that and noted that DHS didn't do its homework to kind of explain more specifically the history of the funds flowing through DHS that were used to effectuate this policy. And then this kind of threshold position Judge Cobb dug into was to say, and even if you could, you promulgated this policy back in June through 527 funds with this restriction, meaning they dug all the way back up to the secretary herself. And various offices are at the supervisory level that are funded by this 527money. That's how they promulgated the policy. So no matter what, if there's a new memorandum in place saying, well now we will effectuate it with new money that's not tied. The judge wasn't persuaded by that, saying, yes, but you've created, you've promulgated this, this policy with 527 funds. So that's kind of a ruling on the past behavior. The current behavior the judge focused on was whether or not DHS had done its homework and showed that this OBA fund was true. Was that, that that 527 wasn't used to effectuated. And even that wasn't persuading the judge because the judge looked at the purpose statement in the One Big Beautiful Bill act and was able to show that the purpose statement of this $191 billion that came out of that act without this restriction or this rider was tailored only to things like hiring and training new agents, transporting them to locations for new operations. It was not focused on implementing these kinds of policies. And the case law around the appropriations bill tailors the purpose statements, the way the funds can be spent to those purpose statements, because otherwise the executive branch would gain far too much power, which would kind of overrun this appropriations clause where Congress is in power to determine how the money should be spent and then looking forward to the future. The judge even focused on this stating because DHS focused on the fact that there's this lapse in funding and stated in their arguments, well, if there's this lapse in funding, then the 527 restriction on that rider can't be applicable because it's not in effect right now. And the judge looked at that and said that that's not persuaded. She wasn't persuaded by that either. Because when there is this lapse in funding, there are these legal mechanisms triggered that state that DHS had accepted or exempted activity that can be funded by various funds through Section 527, ridered appropriations, meaning there's this money that Congress already gave you that can trigger if we're in this exempted space. And so the judge said that's where that money is coming from and that is attached to that rider. So the bottom line is the members of Congress are now reverted back to the status quo before any of this policy was implemented, and there is no seven day notice requirement.

[Benjamin Wittes]

All right. Meanwhile, Judge tunheim has enjoined DHS's new policy of arresting all refugees on the first anniversary of their entry. Roger, I can't say this one surprised me. What do you make of it?

[Roger Parloff]

Yeah, and I think I've mentioned this situation before. He's judge, he had issued a TRO before and now he. This is a fuller treatment of it. Yeah. This was a strange policy that began to be implemented in January this year and initially only in Minnesota. They have 5,600 refugees. Remember that refugees go through this program. They're vetted before they get here, they're admitted. These are not inadmissible. You know, so they came in legally, they're given work permits, and they're on a path to apply for LPR for legal permanent resident. And. But they have to stay here a year before they can apply. And this sort of. But there is a provision that says at the end of that time you return or are returned. And the exact language is at the end of such period, they shall return or be returned to the custody of DHS for inspection and examination. Well, for 45 years. That's never been understood to mean you're arrested. It means that you come in and there's a make sure that you haven't done anything that makes you removable or that something about your thing wasn't your application wasn't fraudulent and then you become a citizen. They began to arrest these people without warrants and ship them off to Texas for several days and then release them wherever. And so he enjoined this. Apparently this seems to be linked to in late November there was that terrible incident where the Afghan refugee, probably deranged, killed two National Guardsmen. And so in December they rescinded the existing guidance on this program and said we want to bring them back and check to make sure they aren't terrorists basically and that this is the theory. But I mean they're taking families with like four year old children. It's just, it's just crazy. And so he issued the preliminary injunction we don't have. It hasn't been appealed yet. He just did that last Friday after or. And we didn't know about it by the. I didn't know about it by the time the show ran before.

[Benjamin Wittes]

All right, let's do an update on contempt hearings in Minnesota. They seem to proliferate like rabbits. Which ones have mated and spawned.

[Roger Parloff]

This week I've got two sets of contempt hearings for you. One Tuesday and one Thursday. Each Judge summoned the U.S. attorney Daniel Rosen, and his chief, the chief civil chief who's now David Fuller after Anna Voss quit. And also somebody from ICE this time, somebody from ICE that knew a little more than most people from ICE have in the past in my experience. And the one on Tuesday was before Judge Jeffrey Bryan, who's a Biden appointee. I'm about 170 pages through a 200 page transcript. It begins very testy, very testosterone I would say. With Rosen and Brian sort of facing off, it quickly gets quite dull as Judge Bryan tries to find out what is the process for and what these focus on. Now these are not. This is focusing on the return of property. So usually the violations are, they aren't released finally, they're released late. They're released in the wrong state. You get them back to the right state, Minnesota, and then they don't have their property. And usually the property is very important. It's like it's your id and these are people with Spanish accents and brown. And without their ID or even with it, it's very dangerous in that city. And this is their work permit, their passport, their driver's license. It's also sometimes the whole wallet with all their bank cards and money. So it's an important thing. And so this Judge Bryan set down 28 of these cases for contempt hearing. The other judge, Judge Tunheim again for Thursday, sat down about 6. And of course, by the time the hearing arrives, a lot of the property has been returned by then. And so cases drop out. In the case of Brian, there were two where the property had been lost. Among the other case, there were about three other cases where it had not been returned. But it was at that point fuzzy as to whose fault it was. And one of the other complicating factors is that the property, when it comes back from El Paso, it goes to the Whipple Building, you know, near the, I think it's near the airport, this, the Minneapolis St. Paul Airport, and it's the holding center. And it's the last place in the world that the petitioner wants to go back to, especially with no papers because they're going to get arrested again and thrown in a van and taken to El Paso. And so they won't go and the lawyer has to go. And sometimes the lawyer is sluggish about it. And so there is a dispute. So anyway, apparently the second hearing was calmer. I spoke or I talked to, I communicated with Matt cpic, who's an NPR News guy there who attended both hearings. He said things had calmed down. Rosen was even contrite at the second hearing, which is surprising. He said there was there's been no rulings in either thing yet. He said that one of the petitioners, a guy named Ricky, said that the ICE agents had told him they were going to he's here on a visa U1 visa with a work permit. And he was a roofer and they took his $400 nail gun and they also took his work permit and they told him the ICE agent told him they were going to destroy the nail gun. And he's. So there are things like that.

[Benjamin Wittes]

Taking a man's nail gun is low.

[Roger Parloff]

Well, if you're a roofer and yeah.

[Benjamin Wittes]

No, I'm serious, you know, that's the tools of his trade.

[Roger Parloff]

Yeah. So anyway, we haven't heard yet. We haven't gotten the rulings.

[Benjamin Wittes]

Meanwhile, it is not just judges in Minnesota who are pissed off. The bench in West Virginia is irritated as well. What's going on in West Virginia, Roger? It's, there was like 100 page opinion, you know, which I haven't read. But they, they seem, the judges seem upset.

[Roger Parloff]

Yeah, there's a number of things going on as I'm. I don't know if I mentioned it here last time, but. And, and these cases I'm aware of, I've read these cases. I'm aware of them because of Kyle Chaney's reporting. But one of the interesting things happening is that where metaphors. I've mentioned the mandatory detention issue where Trump, you know, this statutory question that the Trump administration is saying, basically everyone has mandatory detention. You're not entitled to a bond hearing. And what's happening is that even when the judges order a bond hearing, they're finding that it's futile because Bondi has ensured, you know, she's removed people that were doing neutral adjudications and sort of word gets out, and there is now some empirical evidence, at least in through declarations, that bond hearings where they occur are being systematically denied. So they're saying that these no longer comport with due process. They're futile. We have Judge Johnston, who's a George W. Bush appointee, and then we have Judge Berger, who's Obama, I think, appointee, both saying that you just need to release them outright because you're no longer providing due process by even affording them a bond hearing. And then Judge Goodwin, he did something unusual which was. He's sick of, you know, there's five judges in the, in that district, the Southern District of West Virginia, four of them have handled these cases, and they've all ruled the same way. And they've said that your mandatory detention theory is wrong, the people need to get a bond hearing. And nevertheless, there isn't compliance. And so he issued what he called a final notice. And I don't know what the. He says continued detention without individualized custody determinations after this court's repeated holdings that such detention violates the Fifth Amendment will result in legal consequences for state jail officials. That means civil liability. For federal officials, that means contempt. Officials who believe this court has erred in its constitutional analysis may seek stay of this court's rulings pending appeal or pursue appellate review. What they may not do is continue systematic constitutional violations while preserving appellate objections and expecting this court to grant relief without enforcing its rulings. All right, if I can just say I think that's. It's a bit of a creed occur. We have more creed occurs.

[Benjamin Wittes]

Yeah, we're coming to Crees de coeur momentarily.

[Roger Parloff]

Drawing the line is difficult between my creed occur section and those.

[Benjamin Wittes]

All right, well, we're going to, we're going to introduce creed occur. Watch at the end of the episode. But, but first, let's get A three letter case caption update on JGG and dvd.

[Roger Parloff]

Yeah, jgg, remember is in this weird posture where it's a class action on behalf of the 137 Venezuelans who were shipped to Sakat without due process. Everyone can agree there was no due process. It was under the Alien Enemies Act. And then they were prison swapped to Venezuela and then some of them escaped to third countries. And a number of them want to challenge even now their trend Aragua designation which is still causing them problems. And. And they would also like to challenge the validity of the AEA. 19 of them have committed that they would come back and be to the US and be incarcerated, detained and challenged. And so the February 12th order was to the government to provide a joint status report and say how will you bring back the ones that are in third countries? Also is it now possible if things calm down in Venezuela that you can contemplate doing the same thing for people that are in Venezuela? And rather than file that status report, the government took an appeal this week and we sort of expected that. They had sort of said we've had it, we're out of here.

[Benjamin Wittes]

And what about DVD?

[Roger Parloff]

DVD? You remember Brian Murphy on last week, February 25th issued a summary judgment for the petitioners. Again, this is the third country removal cases said that you're that the DHS policy for third country removal is unconstitutional and illegal under the statute. And today the or today or yesterday the government sought an emergency stay at the first Circuit and made clear that if the first Circuit didn't grant that they would go straight to the Supreme Court where they have one stays at least once before. Twice if you count there was a relate. I can say twice.

[Benjamin Wittes]

All right, which brings us finally to a new feature that we are inaugurating on this show this week. We kind of inaugurated it last week, but it this is Cri de cour watch or the Cri cur roundup. As Roger says, the line between merely a judicial warning or complaint and a cree de cour is fuzzy. This we reserve to Roger's unreviewable discretion. The standard of review is not abuse of discretion. Roger is entitled to abuse his discretion and include or exclude anything he likes from the cree de cour roundup this week. We have two entries in it. Roger, who are the creed occur judges this week?

[Roger Parloff]

One is Judge Farbiars, whose you may remember his name, Michael Farbiars in Newark.

[Benjamin Wittes]

He's not the most coherent judge in the world.

[Roger Parloff]

He's sort of verbose. Yes, but you know him from the KHALIL case, but this is a different case. He got bent out of shape by all of the violations of orders in Newark and had the government count them. And they were about 52 over a pretty short period. 17 of those involved violations of no transfer orders, meaning don't take him out of New Jersey and to put him in the 5th Circuit and usually Louisiana. And there were 17 violations. So that came to three every two weeks over the period that he was looking at. And so instead of trying to determine whether ICE officials were holding an evidentiary hearing and trying to determine whether they were acting with willfully or not, he decided that he would instead look at this on a going forward basis. And now every time there is a release order or an order of no transfer, he wants the deputy director or director of the Newark field office of ICE to sign off on knowing that it was issued. And then if these things continue not to be followed, he makes the point that there will be willful blindness. You know, at some point I don't have to keep proving that you on this occasion, you just aren't acting to improve the situation. So he will find them in criminal contempt on a willful blindness theory. So I nominated him for creed occur for this.

[Benjamin Wittes]

All right, so who else gets a cree de Kerr?

[Roger Parloff]

The Eastern District of New York, Gary Brown. And I'm afraid I have to hat tip Kyle Cheney for this one. Again, he sits in Central islip. He's a Trump appointee, which would make this more powerful. Although I think in reality Obama was the first one to propose him and some sort of compromise led to him being appointed. It involves the case of a guy who came here when he was 9 from Honduras as a special immigrant juvenile S I J. That means you've been abused as a minor and they can't possibly send you back to, you know, to your. To the conditions you came from. And he grows up and he graduates with honors and he goes into theatrical lightning and lighting. And he's 24 and they arrest him on a without a warrant. He's shackled, he's detained. They realize they have the wrong guy, but they don't release him anyway. And they try to get an arrest warrant retroactively. This judge orders him released. ICE imposes its own conditions, an ankle bracelet. They won't give him back the work permit. And then DHS tries to revoke his work authorization that it was associated with his SIJ status. And Judge Brown writes that that's a reprehensible act of unimaginable cruelty even after this court set the terms and conditions of petitioner's release, ICE imposed additional unsanctioned conditions upon him, and then DHS imposed a hefty fine to offset the cost of his illegal apprehension. This isn't how things are supposed to work in America. Unquestionably, the laws of human decency condemn such villainy. So I nominated. All right.

[Benjamin Wittes]

I think that counts as a prix de Kerr.

[Roger Parloff]

Yeah.

[Benjamin Wittes]

All right. We have four questions and I do not know the answer to the first one, which is from Joyce, but maybe somebody else does. What do we think about CBP telling the court in the tariff case that it is unable to comply with the court's order, that it refund the illegally assessed tariffs paid? How can the court enforce its order? So I have not followed this carefully in the lower court since the remand from the Supreme Court. If any of you have and have thoughts on this, feel free to jump in. All right, Joyce, we are going to have to get back to you next week on that and we will. Ian asks, when discussing a case like the Fulton county case, why do we refer to the feds as the government when the other party is also a government? Well, first of all, a nomenclature issue. It's not the government, it's the government. And so there's a bit of convention here. In federal court, it is conventional to refer to the government party as the government with a capital G. It is correct, of course, that when there are other government plaintiffs or government defendants, that is slightly imprecise, but the I believe the government in federal court generally, it's not really a term of art, but it means the federal government. And often when there's a state party or a county party, it will be described by the name of the party, for example, New York or the state or Fulton County. But yeah, technically you're right, it should be the government of Fulton County. As a general matter, that's not going to happen in a federal court setting. The government will generally refer to the federal government. I'm not sure there's a reason for that. It's just a convention. Andrew asks big picture question. How qualitatively would you rate the effort by litigants to use the federal judiciary to curb immigration enforcement abuses by dhs. It seems like a very mixed bag with district courts often getting reversed by courts of appeals or the supreme court, like the seventh circuit yesterday vacating the preliminary injunction restricting DHS's conduct in midway Blitz. Does this pattern speak to confusing regarding to what extent courts should defer to the executive on immigration matters and Could Congress clarify that somehow? Roger, what do you think? How do we, how do we assess this?

[Roger Parloff]

Well, I, I think that the, the courts get more and more conservative as you go up the ranks, and that's sort of what we're seeing. Yeah, I don't know if it's more complicated than that. What, what do you, what do you think?

[Benjamin Wittes]

So I, I think the first of all, remember, Andrew, that the percentage of cases that don't get appealed is quite high. And so the, the amount of power, you know, the number of people who get released because a district judge orders them released is quite high. And the number of people who, you know, when, when the courts of appeals or the Supreme Court reorients the district courts on a matter, that has, of course, a big effect across a lot of cases. But at the end of the day, you still have to litigate in front of the district judge. And as you know, Troy was describing before with Jia Cobb, you know, you can come in and to the same district judge over and over again with the same issue and get, you know, a judge who really doesn't like what you're doing can find ways to make trouble for you. So I think, look, I agree with Roger that there's a lot that has gone on in the courts of appeals and particularly the Supreme Court that is very frustrating from the point of view of people who want to throw wrenches into administration conduct in these immigration cases. But, boy, would you not want to be in an environment in which this stuff would, wasn't getting litigated. And, you know, the total amount of breaks that, that the court system has put on the administration is enormous. And, and I don't think we should lose sight of that even as we, you know, maybe criticize the fact that the higher echelons of the court are more reticent than the lower echelons about getting in the way.

[Roger Parloff]

I think that's right. But I also, I have a lot of trepidation about, you know, if the Supreme Court finally grants some of these jurisdiction stripping provisions arguments, you know, we're just going to wipe away whole swaths of the litigation that is keeping this thing on the rails. And so I'm very concerned about that. The other thing we see, can I

[Benjamin Wittes]

just say something about that? That is certainly right, but it is not clear to me at all that the problem there will be the Supreme Court's conservatism as opposed to Congress's grossly irresponsible behavior in writing these jurisdiction stripping provisions, which the Supreme Court will not be making up. They are provisions that Congress wrote into law in order precisely to deprive people of access to the courts in situations like this. Now, were they imagining Stephen Miller and Donald Trump?

[Troy Edwards]

No.

[Benjamin Wittes]

But were they imagining situations in which you might want to deport a lot of people? Yes. And so to go back to, to Andrew's question, would, could Congress clarify this situation? Absolutely. And one thing it could do is get rid of some of those jurisdiction stripping provisions. That would be a really healthy way to intervene in this situation.

[Roger Parloff]

The other thing I was going to say is that you see a lot of gamesmanship by the government in terms of which cases it appeals. So like with these mandatory detention cases, it took expedited appeals in the fifth Circuit, which it won instantly. And in the eighth Circuit, it's been dragging its heels everywhere else. And that's why those judges in West Virginia are pissed. That judge, that judge, I didn't name him, Richard Goodwin, or Goodwin at least is his last name, I think was the one that was giving final notice. I don't know if that's legally right. But what he's saying is, why don't you appeal us if you don't like these rulings, you know, go to our, go to our circuit court, but don't, don't keep forcing us to, you know, and there have been class actions and they don't appeal those. You know, there's a class action on this in the Central District of California. It's a class action declaratory judgment. And also she used the APA and said this policy you have of interpreting the, the statute that way, which changes from 29 years previously, is an administrative, you know, is a final order. And we, I vacated. And that should have national effect. And they should have appealed that, but they didn't. And so you just have thousands of cases being decided one after one. So, and the Supreme Court did this, you know, with the CASA decision, it made it harder to bring class actions. And even though, you know, we, we have thousands of courts deciding the same exact legal issue, it's crazy.

[Benjamin Wittes]

All right, we have one last question, and I just want to say up front, I have no idea what the answer to it is. And hat tip to any member of the panel who has any insight into the answer to this question from Reese. In a truth social post, Trump seemed to have directed the United States International Development Finance Corporation to provide insurance for oil tankers transiting the Straits of Hormuz. Is the DFC an independent agency? Does that even matter or mean anything anymore? How would potential insurance payments be made? And where would those funds be drawn from? Does anybody have any insight into the constitution or behavior or activity of the Development Finance Corporation?

[Molly Roberts]

No, but someone could ask Lindsey Halligan. I hear she's an insurance lawyer.

[Benjamin Wittes]

I hear so too. Sorry, Rhys, we got nothing for you on the dfc. We're going to wrap up. We're going to be back next week. Thank you to Troy Edwards, AKA the Jackal. Thank you to Molly Roberts, AKA the Quetzal. Thank you to Roger Parloff, AKA the Leopard. I'm Benjamin Wittes, AKA the Iguana, and this has been a production of Lawfare, our Audio Engineer. This episode is the Great Anna Hickey, aka the Engineer and our we you can become a material supporter of Lawfare at lawfaremedia.org support where you can pose your own absolutely impenetrable questions and we will struggle to answer them. Guys, you got before you answer give us Development Finance Corporation questions, you got to give us little heads up about that. We will be back next week. Thanks for listening. This podcast is part of lawfair'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 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.

[Troy Edwards]

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