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- [00:01]
Natalie Orpet
The following podcast contains advertising to access.
- [00:05]
Nick Bednar
An ad free version of the Lawfare Podcast.
- [00:08]
Natalie Orpet
Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull, and the Aftermath.
- [00:32]
Nick Bednar
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- [01:02]
Scott Anderson
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- [01:20]
Anna Bauer
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- [01:38]
Scott Anderson
I think what I'm very, very worried about, right, is that in order for any of these legal actions to have meaning, the government has to be forced to stop what it is doing for the moment, and the Supreme Court is willing to do that. I am concerned that it is a 5, 4 decision decision and that this might not hold in other cases.
- [01:58]
Ben Wittes
It's the Lawfare podcast. I'm Natalie Orpet, Executive Editor of lawfare, with Lawfare contributing editor Nick Bednar, a professor at the University of Minnesota Law School, and my colleagues LawFair senior editors Anna Bauer and Scott Anderson.
- [02:17]
Nick Bednar
And there's this suggestion that there's some kind of power grab by a district court judge and that this is judicial overreach. I don't at all think that that just doesn't square with kind of, you know, what I've observed. And so I just think that that's notable in addition to other ways in which Alito's dissent really kind of does not square with the facts.
- [02:41]
Ben Wittes
In a live recording on March 7, we discussed litigation challenging executive actions from the Trump administration, including the federal funding freeze, dismantling of USAID, and the firing of probationary employees across the.
- [02:59]
Natalie Orpet
Doge'S conception of the statutory minimum strikes me as quite, quite narrow, probably narrower than a court will determine, but we'll have to wait and see.
- [03:09]
Ben Wittes
Welcome everyone to lawfare LIVE this week. I am Natalie Orpet, the executive editor of lawfare. I am sorry to all of you who are disappointed for not seeing Ben Wittes, who is currently out of town. But I am very pleased to be joined by regular correspondent Anna Bauer, also a senior editor at Lawfare, and Scott R. Anderson, who is occasional correspondent and always senior editor. And today we have a special guest, Professor Nick Bednar of the University of Minnesota, who is a contributing editor at lafair and who thought that he had chosen a very obscure Specialty for his PhD and area of specialization in the law. And yet it was about the civil service. So he's now become the most famous academic in America and we are going to pick his brain, as we have been doing on the pages of Lawfare and in our regular podcasts, to talk about what is going on to the civil service. But I want to get us started first, Scott, with you talking about the USAID cases, we have one that is very prominent. We talked about last week, very prominent, because it was one of two that somehow managed already to get to the Supreme Court. We were as of last week, waiting to see what the Supreme Court was going to do. I want to start by just having you remind folks what is this case about? How did it get to the Supreme Court and what did the Supreme Court say? Because, spoiler alert, they did in fact come out with a ruling on Wednesday. So, Scott, get us started. What's the case about?
- [04:45]
Natalie Orpet
Absolutely. It has been a whirlwind, to say the least this week in this particular case. And next week does not look like it's going to be a lot lighter. This case brought a few weeks after the initiation of President Trump's freeze on foreign assistance, which he implemented as one of his first measures. Upon returning to the White House a few weeks later after the exceptions that were carved out from that policy never manifested, at least for many or most aid recipients, we saw two tranches of implementing partners, mostly organizations that receive foreign assistance funding either directly or through letters of credit, and then often are involved with subcontracting or sub granting those out to different organizations in the field or are kind of responsible for implementing a lot of the day to day foreign assistance programs of the US Government. Traditionally big groups of them sued in two separate matters that were then joined in one matter that's primarily, I think, I would say, being addressed under the caption of AIDS Vaccine Advocacy Coalition v. Department of State, Global Health Coalition v. Department of State was the other primary matter. They essentially claimed that this withholding of funds injured them, not just in a pecuniary matter, not just in terms of, as if it's a contract dispute where they're not given money they're owed, although that is part of their claims. They also pointed out that they argue this is unlawful, they're challenging under the Administrative Procedures act, and that the action had a variety of harms that could not be remedied strictly by monetary damages, such as reputational harm, harm to their organizations, and harm to the program they're implementing because it was done so suddenly they didn't have time to transition, wind them up, find alternative support, and anybody who's been tracking this case and its consequences and the cutting it off, the assistance cutoffs consequences, will know what they're talking about. We've seen this whole sector of these sorts of organizations pretty substantially injured, lots of organizations declaring bankruptcy, widespread layoffs, huge collapses of a variety of foreign assistance programs that relied on U.S. funding. And that's kind of the main motivation here. February 13th, Judge Ali, a brand new judge who's just confirmed in late December, a Biden appointee issued a TRO that basically said anything that was for any money that is owed for work performed prior to February 13, the government should go ahead and pay. I'm directing you to pay, to pay that, but I mean to anyone, not just the plaintiffs, and don't take any more steps to additionally freeze payments, but we're going to move those payments forward as an effort to avoid irreparable harm to the parties. US Government never did that. They repeatedly said, well, we actually read your TRO to not require that at various points. After about a week of back and forth last week, we saw Judge Ali issue another order, an enforcement order, saying that. No, I meant what I said. Please do start paying this money that I directed you to pay under the tro. I will say I think the government's arguments were pretty facially implausible and highly problematic in that matter. I think they should be called out for it, frankly, even more vocally than they have been, regardless. The government then appealed the enforcement order, first to the D.C. circuit, where it was denied because TROs are not normally appealable at this stage, and then to the Supreme Court, where eventually, earlier this week, we saw Chief Justice Roberts and Leading a coalition of Justice Barrett and the three democratically appointed justices to essentially deny the motion to vacate the enforcement order, which is how the government has framed it. But we did see the four remaining justices, Kavanaugh, Alito, Thomas and Gorse Such issue. A dissent from that opinion which said, essentially, we think this, this remedy is inappropriate. Really, this. The D.C. circuit should have taken this up on the merits. And in this case, this is something that goes for pecuniary harm that should just be dealt with, that these other claims of harm aren't there. They're just for these plaintiffs. And it should go to the court of federal claims or specifically to an administrative process that ends up in the Court of federal claims. A leader's opinion is not quite that easy to read. It is not the clearest opinion, but I think if you parse it together, that's essentially what they're saying. That is a common occurrence with Lito opinions late, particularly on these sorts of emergency matters. They are not the clearest documents. Regardless, that basically set up a situation where this week we saw two parallel matters. We've seen a debate over will the government pay this and when. And we saw a separate previously scheduled hearing yesterday over the preliminary injunction motion, which is kind of the next motion that needs to be resolved after the TRO, which the TRO is set to expire on, I believe, Tuesday the 10th. So Monday at midnight next week. On regard the payment side, the plaintiffs have pointed out they still really haven't gotten paid little. Small amounts have been paid, huge amounts are still owed. They were directed by the court to come up with a schedule with the government on which it would be paid. They essentially argued us hundreds of millions of dollars by Monday should get it by Monday. The government said, we're not sure this is feasible. It takes weeks to pay things. Although that was not true a few weeks ago when they had these existing programs. Part of this is because of the disruption of the payment system, although they don't quite say that. But it's not that hard to read between the lines on that particular point. We're still waiting for the court to what exactly he's going to rule in terms of what is the schedule on which this assistance should be delivered, because the joint status reports did not have a meeting of the minds on this. Exactly. And in their hearing yesterday, he asked for more concrete receipts about what's owed to the plaintiffs, clearly about work performed. And again, it's on the order of several hundred millions of dollars. And not only that's just for the Plaintiffs willing to identify themselves. Several of the plaintiffs actually are big umbrella organizations that claim to represent dozens, if not hundreds of potential organizations in a similar position that aren't willing to identify themselves to the they are worried about repercussions for their relationship with the Trump administration moving forward. Separately, we had the whole hearing on the preliminary injunction yesterday, and I know you listen in on this, so I want to invite you to weigh in with any thoughts you have. My general sense of it is I think Judge Ali, as we hinted at in the tro, he is sympathetic to the claims of the plaintiffs foundationally, both on a constitutional level, on a statutory level. It does not seem like the Trump administration clearly had the authority to do this and doesn't seem to have the authority to just not spend this money or at least that clear he does. They do without triggering an impoundments concern under the Impoundments act and potential constitutional concern, I read. But the problem here is remedies to some extent the court seemed to be wrestling with. At some point he asked the party, well, you're basically asking us to restore the status quo ante before the freeze was implemented on January 20. But the government does have substantial authority and discretion in how it implements these funds that come from Congress in a lot of these cases, varies agreement to agreement, contract to contract, authority to authority. But he basically asked the parties, the plaintiffs, how is it that if they are obligated to spend these monies, they have to spend it on you? Now the plaintiff said, essentially, is that, well, the window, the current apportionment window, which is the period in which they're supposed to spend the money without triggering an empowerment concern, is so narrow and they've pushed it so late that they don't really have any option but to spend it on us. They're not going to be able to find anybody else to spend it on. That's a tricky factual question to get at, and it's also hard because this industry is undergoing such disruption. It very well might be true, but it's hard to know and I doubt the government agrees with that. I suspect this means that we're going to see a bit of a mixed result. The plaintiffs will probably win on a lot of the measures, but it's not going to get return everything. The status quo ante. The court is going to have to dig in a little more detail about different agreements, different authorities, and determine, well here the government does have some discretion. It's not clear they're in an impoundment territory and even then they're going to get, I think we're going to see this go back up the Supreme Court again about what the right remedy is because it seems like the first case on these bigger spending questions that's positioned to do that, both because the plaintiff acts so aggressively and because the defendant in this case, particularly Peter Morocco, the director of foreign assistance at the State Department, has been quite obstinate in not responding to district court directions as of yet. Anna, do you disagree with that? Do you have any additional insights from the hearing?
- [12:11]
Nick Bednar
No. So I had to leave the hearing early because I had to go listen to another hearing. So I didn't get to listen to the whole thing. But I will say one kind of non substantive observation about the merits of the case just has to do with how disjointed the kind of view of Judge Ali that Alito presents and his opinion is from actually listening to the judge, you know, preside over these hearings because this is the second or third of these hearings in this case that I've listened to. He's very even keeled. He's very considerate and deliberate. And then if you read the Alito opinion, it's kind of like he's presented as this judge who, I think that Alito uses the term at some point, you know, judicial hubris. And, and there's this suggestion that there's some kind of power grab by a district court judge and, and that this is judicial overreach. I don't at all think that the way that I've, I've heard the judge in these hearings, that just doesn't square with kind of, you know, what I've observed. And so I just think that that's notable because it's, and in addition to other ways in which Alito's dissent really kind of does not square with the facts, that was one thing that really stood out to me was just how much of a disconnect there is between the way that the judge is being presented not only in the Supreme Court dissent and then also, you know, in the broader kind of public conversation amongst people on the right about what district court judges are doing. I don't see it that way at all.
- [13:56]
Natalie Orpet
I could not agree more. Incredibly, even keeled, very positive engagement with the government at points, even tried to steer them and help them strengthen their arguments, which they needed help with because many times they were not great. And it's worth noting he's been deceiving keeled in the face of again, a government activity that has been pretty egregious in my view. I Am not like, naturally inclined to be a sass mouth in my public Persona at least. I don't like to trash talk people. I try and give people the benefit of doubt. The government's been complete assholes over this. It's really astounding and just completely, completely misrepresenting what's happening. Deliberately misreading the government's orders. It's astounding. It borders on an ethical violation in my view. And the judge, I think, would be totally in his right to have gotten much angrier from the stand, been much more aggressive in the use of contempt. He's chosen not to do so probably wisely. I don't know how many of us could possibly have restricted the urge, resisted the urge as strongly as he did. He's been incredibly impressive through this and very even handed in the face of not very fair or above board conduct. That's not, by the way, the government lawyer's fault. I think he's got very difficult clients. I'm not judging him. But that said, the judge has been exceptional and we should hopefully, I suspect, get a decision on the preliminary injunction Monday because the TRO is set to expire midnight. Otherwise they'll have to extend the tro, and that is also the window by which we'll have to see this payment issue resolved or again, have to extend the TRO or roll the relief into the preliminary injunction.
- [15:14]
Ben Wittes
Okay, so I think, you know, I am want to read too much into the Supreme Court action here because this went up on a very unique posture and it is, of course, only one case. On the other hand, it is the Supreme Court. It is one of two times the Supreme Court has taken so far with regard to these challenges of executive orders. So I want to give you guys in a couple of words, including you, Nick, if you have any thoughts on what, if anything, we should garner from the way that the Supreme Court handled this. I think I'll answer for myself. Host prerogative first. That I think the dissent was for a lot of the same reasons that Anna was describing. Very alarming to me in terms of its tenor and the focus that it chose to take. I think that the majority opinion had some pretty clear instruction to the, to Judge Ali about what should be done to further refine his orders to sort of stave off, I think, future protestations that things were unclear by the government. And I heard the first couple of minutes of the hearing that you were talking about, Scott, and I noticed that Judge Ali specifically talked about needing to be sure that he was complying with the Supreme Court's guidance in that sense. But Nick, to come to you quickly on this one before we have to move on to the many other topics we have to cover today, did you have any thoughts on what the Supreme Court did here?
- [16:50]
Scott Anderson
Natalie, I'm mostly in agreement with you, which is, you know, I think it's alarming that in some ways the Supreme Court's not allowing these temporary restraining orders and injunctions to go into place or that there's four justices who don't want them to. Right. In this case, it was allowed to go forward. But, you know, it suggests that some members of the court don't realize how important it is to pause in these moments and prevent, like, complete destruction of either the federal workforce or the, you know, agencies and non governmental organizations that rely on this sort of money. So, you know, I think what I'm very caught, like very worried about. Right. Is that in order for any of these legal actions to have meaning, the government has to be able to or has to be forced to stop what it is doing for the moment. And the Supreme Court doesn't seem the Supreme Court is willing to do that. I am concerned that it is a 5, 4 decision and that this might not hold in other cases.
- [17:59]
Ben Wittes
Yeah.
- [18:00]
Natalie Orpet
Just to one supplement, I agree with that and what you said, Natalie, I do think if you look at the dissent in this, and again, you have to read a little bit generously because Alito is not particularly clear, but they basically buy into the government's framing of this. And they're not the only ones. We saw Judge Nichols kind of buy into a similar framing in the personal services contractor case where he denied TRO and I believe a PI for certain USAID employees termination. We've seen other people hint at this. We see a much more common parallel in the employment law context where essentially the government's trying to frame this as a very set of quotidian claims, in this case, contract claims that are supposed to go through a separate process, that plaintiffs should only be able to sue over the money they're owed. And that the reason the government wants this because the result would be, yes, these plaintiffs may get money they're owed at the back end of that longer administrative process, but will take time. And meanwhile the executive branch will still get the policy it wants, which is to end all this foreign assistance or in other cases, terminate people. It is this forest through the trees kind of framing that I've mentioned before, which is the government wants to still look like a bunch of trees day to day things that have a process to go through, and they want to use that to avoid the big constitutional question. The four justices buy into that. And I think a lot of judges are going to, even if they're not sympathetic with it because it's constitutional avoidance. It is particularly what district court judges like to do. They don't like to get at the big constitutional questions. But if you do that in this case, you're creating a scenario where there's just not going to be any remedies or core constitutional violations. And that's really concerning the de jure constitutional law. Separation of powers may not be disrupted, but the de facto one will, because a big part of separation of powers will no longer be meaningfully enforceable. And that's a big problem when you have an executive branch willing to go beyond what de jure has allowed as long as it can get its de facto outcome right.
- [19:36]
Ben Wittes
And it's worth saying that, you know, the standard you have to apply for irreparable harm, for example, has to take precedence over the doctrine of constitutional avoidance. But let us move quickly, Scott, there are a couple of other cases that came out that we should just touch on briefly in this space. There was one, I believe, from the National Endowment for Democracy and another from the US African Development Foundation. Tell us about those quickly.
- [20:03]
Scott Anderson
Sure.
- [20:03]
Natalie Orpet
We saw National Endowment for Democracy file a new complaint on Wednesday, I believe, or Tuesday evening. It is very similar to the AIDS Vaccine Advocacy Coalition and Global Health Coalition case. It is a little different because Ned is in a very different statutory framework. It is much more specific, much more directive, basically says, yes, government, you are supposed to give this money to Ned. And they still haven't done it. So it's actually framed as a mandamus. The plaintiff's counsel, and it's worth noting they're being represented by former Solicitor General Don Varilli and his excellent appellate team at Munger, Tolles and Olson, which is a big guns to bring out for a District court action. They're obviously expecting this to go somewhere, but they come out and they frame it as a mandamus. That's the sort of action that's a very, very high bar, especially in D.C. where they essentially say there's a ministerial duty. You have no discretion. You need to execute on this. It went before Judge Fried Radrich, that's who it is, who is a Trump appointee from 2017, but pretty well respected as a district court judge. I think they'll think she's a pretty good and pretty fair judge in most cases. So that's very early as for the Afghan development case, this is a case that just bank case that just came up and it's caused a lot of stir in the media. This is a case where they got into a fight, where Doge came in, along with, with Peter Morocco, the head of foreign assistance, to try and shut down this small development agency, of which there are a couple in part in response to President Trump's order to wind all these agencies down to their statutory minimum after they refused to let the doshdam into the office. Peter Morocco then got on his phone, declared himself the CEO, dismissed the board, declared himself the CEO and then fired the staff and canceled all their contracts from the sidewalk. As far as I can tell from the allocation of facts, it's pretty exceptional facts, to say the least. There is now currently administrative stay issued by, I think it's Judge no, Judge Lamberth, who has an administrative stay for the few days while they sort this out. This is still very early. We don't know where it's going to go. Again, there is strong statutory basis for this body to exist and to do certain things. And it looks like, frankly, the Doge's conception of the statutory minimum strikes me as quite, quite narrow, probably narrower than a court will determine, but we'll have to wait and see.
- [22:07]
Scott Anderson
So this case is fascinating to me and I'm like, really interested to see where it goes, in part because there's a Federal Vacancies act issue lurking in this. So we'll talk in a minute about all these removal cases that are going on. But what has happened here is you have Morocco installing himself as the head of this agency, but the Federal Vacancies Reform act doesn't apply to this agency at all. And the president is effectively asserting that there is an article to write for the president to install acting officials, which just cannot be the proper interpretation of the Constitution, because if it is, that means you would never need advice and consent of the Senate. You would just always install acting officials. And so this case is going to be really interesting to watch, not only from the removal aspect of it, which again, we'll talk about like a dozen removal cases in a second, but from this, like, vacancies appointment issue that's lurking underneath here.
- [23:09]
Natalie Orpet
And it's worth noting just one fact because it escaped me, but it's worth noting it got caught up in some media, but not all. Ward Bream, the person who's the CEO of the African Development, who's dismissed the White House, dismissed as saying these unelected bureaucrats shouldn't be allowed to stand in the way of the President. He's not elected bureaucrat, he's appointed cio. He's actually a George W. Bush appointee, a prominent Republican fundraiser and businessman from Minnesota who's been on the board of the African Development bank for a number of years and has played its CEO, I think for the last few several years, was on the board in other roles throughout the Trump administration. So he's not exactly your typical bureaucrat. So worth noting that the White House needs to do a little more homework on its press releases in terms of the people they're talking about because they did not quite describe him accurately, to say the least.
- [23:51]
Ben Wittes
All right, tips to live by, Nick. Let us switch gears over to all of those removals, but I want to start actually, which I suppose is a subset of this, with this, I think now infamous email that came from the Office of Personnel Management about which you have thankfully written several pieces for us in Lawfare. So for those of you who are going to have a hard time wrapping your head around the insanity that Nick is about to explain to us, please do check out his work and Lawfare so that you can see it written down and reread it multiple times. Nick, tell us what was this email and what has happened after it was sent around?
- [24:33]
Scott Anderson
Yeah, so there's this email that got sent around, I think it's close to two weeks ago now. Anyway, this email gets sent from an OPM server and it says, please send us approximately five bullets of what you accomplished last week. And prior to this email being sent, there is this tweet from Elon Musk that says you're all going to get an email respond. If you don't respond, we're going to just consider that a resignation, which is not a thing that OPM can do or that Elon Musk can do. But let's just set that aside for a moment and focus on the fact that this email was able to be sent anyway. Because even before this email gets sent, there's this case called Jane Does 1:2 versus Office of Personal Management that gets filed. And it is a case asserting that OPM's new government wide email server violates the E Government act of 2002. And what plaintiffs are seeking is a declaratory action that OPM violated the E Government act by creating this government wide email service without filing a privacy impact assessment. So under the E Government act, an agency is required to complete a privacy impact assessment before it begins to collect data. And the procedural posture of this case and how it's Evolved is like, a little wild. So OPM ultimately submits to the court this Privacy Impact Assessment in early February and says, like, look, we did it. It's legally sufficient because everyone can choose whether to reply, replies are voluntary. And plaintiffs then file an amended complaint saying, actually it's not legally sufficient. And they created this Privacy Impact Assessment for pretextual reasons. It's just to cover the fact that we have filed a complaint. So plaintiffs want an order requiring OPM to delete any personal information they have already collected through the government wide email system and to publish a legally sufficient privacy impact assessment. They filed for a temporary restraining order that was denied. Where it gets a little crazier is that after this five points email that says, either respond or you're going to be considered to have resigned gets sent out, the plaintiffs file a motion for sanctions against the government saying the privacy Impact Assessment is actually false. That they asserted that the privacy impact assessment and responses to the government wide email system were strictly voluntary. And this tweet from Elon Musk and the subsequent response from agency leaders demonstrates actually it's not voluntary at all. That if you don't respond to this email, there are potential consequences for your employees. And so I showed on a post earlier this week at Lawfare that, like, actually the vast majority of agencies required their employees to respond to this. So we know that agencies were requiring responses despite the fact that OPM guidance and this Privacy Impact Assessment said it's completely voluntary. In response to the motion for sanctions, the government states that its attorneys actually never claim the Privacy Impact statement was, quote, accurate. So their entire response is just, well, we never said it was accurate, which is a pretty weak claim. And they say, we said it was legally sufficient. In that, so far we have given you a privacy impact assessment. We are not asserting anything about that Privacy Impact assessment is actually valid. The government has filed a motion to dismiss in response to all of this, arguing that actually the E Government act doesn't provide a private right of action and that the private impact assessment isn't even a final action that could be challenged under the Administrative Procedure Act. Plaintiffs filed their response this morning. They maintained that the Privacy Impact assessment was false. They don't really buy this argument that you can just say, well, we didn't say it was accurate. They say the fact that the government said it was legally sufficient is enough for us to go forward with this complaint and argue that it's an inadequate impact assessment.
- [29:11]
Ben Wittes
Okay. And in the meantime, federal employees, you know, obviously people are aware that D.C. is full of federal employees. But I will just note that there are federal employees all over the country who have been receiving this email and trying to get guidance from their agencies and from the leadership and from people like Nick about what they are supposed to make of this. And it seems like there are no answers coming anytime soon. So we'll keep on tracking that one. Nick, tell us now about. There are several cases that we have been tracking that are really, I think sort of underscore the complexity of your field, frankly, which is that there are a lot of different types of employment in the civil service. There are a lot of different requirements around appointing people to different types of government positions, not only civil service. And therefore the means by which the administration is trying to remove people get very bogged down in different types of litigation. So we can't get into too many details on them. But I do want to just hit on the sort of top line of what, what is each of these cases about? You know, such that they are different cases. And and let's start with Dellinger's case which we had been tracking. I was one of the earliest ones. This is the, the employment of the not special Counsel's office but the, the office of the special counsel. This is the person who is responsible for protecting whistleblowers and the executive branch was removed. Was district court held that he had to be reinstated. And then what has happened since then?
- [30:56]
Scott Anderson
Yeah, so couple things going on with this case. This case has probably had the most amount of action in the last week. Well, first this case went up to the Supreme Court as we briefly mentioned previously. So there was this kind of weird order from the Supreme Court after there was a temporary restraining order saying it was going to stay its decision on the temporary restraining order until it expired. During that time, Judge Jackson on March 1 issued a permanent injunction against Dellinger's removal. Effectively the sticking point in all these cases that I'm going to kind of quickly summarize is whether the President has authority to remove presidential appointees from independent agencies. Almost all the officials I'll talk about have some sort of for cause removal protection in the statute that prohibits their removal except for inefficiency, malfeasance or negligence. All of this kind of operates on the background of three cases. So in 1935, the court granted Humphrey's executor, which said these sort of removal protections for independent commissioners completely lawful. The Supreme Court has backed away from that in at least two recent cases. Sayla Law, which struck down removal protections for the Consumer Financial Protection Bureau's Director, and then Collins v. Yellen, which struck down removal protections for the head of the Federal Housing Finance Agency. Both of those cases, important to note for purposes of Dellinger, do two things, one of which they are both cases about agencies headed by single directors. The Office of Special Counsel is headed by a single director. In this case, Dellinger. Second, both of those cases say the Office of Special Counsel is a different agency than the ones at issue. And there are reasons we think the for cause removal protections might still be valid. So Judge Jackson basically issues an order saying exactly that, that the Supreme Court, in both Sale of Law and Collins distinguished Office of Special Counsel. And she doesn't believe that the Office of Special Counsel exercises substantial executive authority, which is the test she is applying to determine whether these removal protections for a single director are unlawful. She says that that the oc, although osc, is headed by a single director, the Special Counsel does not exercise significant executive power because it can only conduct investigations and petition the Merit System Protections Board for additional hearings. So everything office the Special Counsel is doing is overseen by a different agency that is presidentially appointed. She emphasizes, moreover, that what the Special Counsel is tasked with doing is, is performing internal investigations of wrongdoing in protecting whistleblowers. So it doesn't make sense to not have a special counsel with independence because otherwise that's going to chill the willingness of whistleblowers to bring claims. So ultimately, Jackson issues this permanent injunction, saying Dillinger has to be reinstated into his position. The government quickly appeals to the D.C. circuit circuit on March 5th in a precarium decision with Judges Henderson, Millay and Walker. They stay the permanent injunction and, quote, give effect to the removal of Dillinger from his position of Special Counsel. So Dillinger is effectively removed immediately. And on March 6, Dillinger drops the case and issues a press statement basically saying that this decision and allowing the removal to go forward is going to cause harm to employees that is immediate, grievous, and uncorrectable. And he's probably right in a lot of ways. The Special Counsel, for those of you who aren't following this as in depth as maybe I am, is the actor who has been pushing for the reinstatement of the probationary employees. He is the person who has gotten a stay from the Merit System Protection Board allowing many of those employees, something like 5,900 in USDA alone, to be reinstated in their positions temporarily. And the Office of Special Counsel is the only actor who can ask for those stays. So without that actor in power, there's really no one capable of policing violations of the civil service laws. In this way, individuals will be able to bring claims before the Merit System Protection Boards for now, which we'll talk about in a second. But this is really a big blow to federal employees who have been unlawfully removed.
- [35:45]
Ben Wittes
And am I correct that that position is now just vacant and someone can be appointed at any time?
- [35:52]
Scott Anderson
That's correct. And no one has been nominated for it. So we'll see. I mean, there's a lot of incentives if you're President Trump to nominate no one for that position and just leave it vacant.
- [36:02]
Ben Wittes
Okay, so yes, do talk to us now about the Merit System Protection Board.
- [36:07]
Scott Anderson
Yeah, so different case. Harris v. Besant. So Kathy Harris is chairperson for the Merit Systems Protection Board. The Merit System Protection Board is the agency that adjudicates claims of unlawful termination brought by federal employees. So it is an adjudicatory agency within the executive branch. Unlike the Office of Special Counsel, the Merit System Protection Board is a bit more like a traditional multi member commission as three commissioners, all of whom enjoy for cause removal protections. Case was filed after Kathy Harris was removed from her position in the U.S. district Court for the District Columbia. It was assigned to Judge Rudolph Contreras, who's an Obama appointee. This case comes at a really interesting moment for the Merit System Protection Board. So on Friday, February 28th, 8th, Raymond Lemon, who's a Democratic appointee on the board, resigned because his term expired. It's kind of interesting that he chose to resign because he could have served another term while his position remained vacant. We don't wholly know why he resigned, but. So there are two members left on the board. Harris, who President Trump is trying to remove, and an additional member who's a Republican member. If Harris is ultimately removed, approved, then the board has only one member and therefore doesn't have a quorum to decide any of these appeals from the federal employment issues, which is going to leave a bunch of people, federal workers filing claims in administrative limbo. On March 4, Judge Contreras granted summary judgment for Harris and issued a preliminary junction preventing a removal. The arguments in the order are somewhat similar to those presented by Judge Jackson in Dillingford. The main difference is that Harris is on somewhat firmer ground as the appointment cases go. Both Sala Law and Collins involved agencies that have a single presidential appointee. MSPB has three presidential appointees and therefore looks a bit more like the FTC in Humphreys executor. Moreover, like Dillinger, Judge Contreras held that MSPB doesn't wield substantial executive power because it spends almost all of its time adjudicating inward facing personnel matters. So right now, Harris still is in her position. The government has appealed the case to the D.C. circuit. If the court does what it did in Dillinger and stays that permanent injunction, MSPB is going to immediately lose its quorum, which means anyone who has an appeal before MSPB is going to have to wait until President Trump chooses to appoint at least one additional member before appeals can be decided.
- [38:53]
Ben Wittes
Right. So there are a lot of the personnel decisions that we are seeing are directly impacting other processes of personnel decision making. So it sort of turtles all the way down in personnel management, it seems. Anna Scott, either of you have thoughts on any of these personnel actions before we move on?
- [39:16]
Nick Bednar
No. I mean, I will just mention this new complaint that was filed that kind of ties into, I think what is the next topic? It's this case, Mary Comins versus the dhs. And it's, it's different in nature than the cases that Nick described in that it's not necessarily about the power to fire or remove this person. It's more about the manner of, of kind of the circumstances surrounding the firing. Mary Komins was the CFO at fema. And there was, if folks remember, about three weeks ago there was reporting around her firing from FEMA in that a FEMA spokesperson, or excuse me, a DHS spokesperson, went out in public and said, you know, these four individuals, including one of them being Mary Komens, were fired because they sent these illegal payments to the states or something to that effect. And it related to this controversy surrounding payments that were sent to New York City for the housing of migrants. All of which kind of became a doge issue because Elon Musk tweeted it out on February 10, I believe it was, in which he said in an inaccurate way that all these grant funds from the federal government were being sent to New York City to house illegal migrants and that there, there are other claims that were being made about the a hotel in New York where some individuals were being housed had been taken over by a terroristic gang and things to that effect. And so all of this, this termination of Mary Coleman's and a few other FEMA employees was allegedly related to funds being sent to New York for these so called illegal purposes. And in this complaint that was filed this week by Comins, she alleges that that was a violation of the PRIV act for the government to go out and erroneously, you know, reveal these circumstances of her firing, which again she alleges are false. But I mentioned this because Comyns has actually filed a declaration in another case related to Doge that I think we'll get to in a little bit that relates to the Appointments Clause in which she says that actually she was directed to continue these funds by a DOGE representative named Brad Smith and was doing everything that she thought that she was supposed to do and she wasn't circumventing the leadership by continuing these funds. And then of course, this also relates to what I suspect is our next topic, which is these federal funding freezes that are going on. And there's a case, case that New York brought against the federal government related to the clawback of funds for this housing program in which, you know, they allege that, that that clawback was a violation of the APA and other statutory violations.
- [42:48]
Ben Wittes
Yeah, let's, let's turn to that one now. So just to sort of recap what you were saying, but take it just back to the sort of facts of it.
- [42:58]
Natalie Orpet
Right.
- [42:58]
Ben Wittes
So this, as you said, relates to federal funds that are dedicated to the states and in this case were for very specific purposes and the federal government is trying to take back money that was already dispersed. Is that correct?
- [43:16]
Nick Bednar
Yeah. So this is federal funds that were appropriated to be sent to, in this case, New York City as reimbursement for services that the city provides to house migrants. These are people who, you know, it's been portrayed by people like Elon Musk and other others on their right as housing so called illegal aliens. In fact, what this program is for is people who have been detained or I believe the appropriation term is actually encountered and then released back while they're, you know, they might have pending immigration proceedings, that kind of thing. And so these are people who, you know, DHS has released to then, you know, be housed and have services provided for by the city. These are services that were already provided by the city. And then the grant funding is supposed to be a reimbursement for those services that the city provides the government. The federal government went ahead and, and sent this funding. It was about $80 million, I believe, on February 4th. And again, what we know from the Mary Komens declaration in a different case, this was actually not raised by the plaintiffs in the New York City case that we're discussing now, which is interesting. I'm not entirely sure that the plaintiffs in that case are aware of it, but from what I understand from that other declaration, it's that FEMA fully intended to continue sending these funds to the states. But there was something that they're referring to as the no memo. That is a reference to the Department of Homeland Security secretary who sent out a memo in January in which she instructed the agency to seek these grant funds being sent to non governmental organizations or funding, I believe it was the phrase was, you know, any funding that, in which a non governmental organization is eligible for grant funding, including for this shelter services program. And so, you know, despite that memo, the DOGE representative in Coleman's account instructed them to continue sending funds to the states. So they did. And then a few days later, Elon Musk sends out this tweet in which he's making these claims about New York City housing so called illegal aliens. And then he says something to the effect of there will be a demand to claw back these funds today or tomorrow. And then the next day comes around and the funds are clawed back. And New York City, of course, having received $80 million for services that they already provided, was very upset about this and sued the federal government alleging violations of the Administrative Procedures Act. There was a hearing on it this week about a motion for a tro. The city wanted the funds basically to be given back to them. They were concerned about not being able to get the funds back, particularly in light of talk about congressional action to rescind the funds. And the judge, Judge Reardon did not grant that request. They, the judge and I, and I think that this was, was ultimately the right decision because the way that the funding was structured, it's it, the $80 million, it was appropriated funds that essentially because of the, the fact that the appropriation has already expired, the government can't incur, you know, other obligations. They can't send that money now that they've gotten it back. They can't send it to other entities, but they also are required to keep it under, to keep it available until I think that the date was 2029. And so because those funds are guaranteed to be still in that account until 2029, the judge was like, all right, there's enough time for this litigation to continue. And if you are successful plaintiffs, you can get that money back because it's going to be there until 2029. It can't be sent to other entities. It's not going to disappear. And for that reason, you can't show irreparable harm. Therefore, I'm not going to grant a tro. And then ultimately, the judge did not go into any of the other, you know, likelihood of success on the merits or anything like that, because she said, I can stop there we, you know.
- [48:14]
Ben Wittes
The one thing about all of this is that we're all getting an excellent civics lessons and the intricacies of things like government accounting and funding streams. There is one other federal funding case, Anna, that I did want to just check in on quickly, which also involves New York, but this time the State of New York and is in the District of Rhode Island. Talk to us about that case, which I believe relates to the OMB freeze.
- [48:39]
Nick Bednar
Yes, I'll mention this very briefly because it is essentially a continuation of the status quo that was set previously. This is the case before Judge McConnell in Rhode island that relates to the OMB directive that was this kind of like categorical freeze that was ordered for all agencies to temporarily, to review and then temporarily pause any programs that related to, you know, there were several categories, DEI or gender ideology, Green New Deal, things like that. And, and so a number of, of states that had been affected filed suit. Judge McConnell, I believe it was two or three weeks ago, issued a TRO and then the judge, this time around at the preliminary injunction phase, extended that order, essentially saying, you know, these are congressionally appropriated funds and the executive doesn't have the discretion to, you know, make this kind of categorical demand. And one of the issues that had arisen in the litigation was that there was this claim by the administration to have rescinded the OMB memo, even though they kind of didn't. And so there was this. Is the OMB memo moot or is it not? The way the judge handled it was by basically saying, you know, you can't freeze any of these funds based on the OMB memo. And the judge had a good amount of skepticism that the OMB memo had actually been rescinded, but there was some question about that. Ultimately, it's a continuation of things that the judge had previously ordered. And the government is required by March 14 to file a status report in which they represent to the court that they've complied.
- [50:46]
Anna Bauer
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- [52:49]
Ben Wittes
Okay, so yet another case relating to funding or spending freezes. Nick, talk to us about the Consumer Financial Protection Bureau and what is happening with the National Treasury Employees Union I.
- [53:04]
Scott Anderson
Believe case yeah, so National Treasury Employees Union vivo. I'll be really quick with this one. This case challenges Vote's efforts to dismantle the Consumer Financial Protection Bureau. So the complaint challenges this Stop Work order that Russell Vote issued when he became effectively the acting director of the cfpb. The complaint alleges that Trump was required to appoint Vote pursuant to to Article 2 and seek the advice of the consent of the Senate. It also alleges that the Stop Work order violates the Administrative Procedure Act. Case was filed in the US District for the District of Columbia as like all of these cases seem to be and assigned to Judge Amy Berman Jackson. The most recent thing to happen on this case is Jackson held a hearing on March 3 on a preliminary injunction injunction that was filed and the CFB attorneys told the court that the shuttering of CFPB was normal during presidential transitions. Jackson noticed these contradictions in the declaration submitted by plaintiffs that employees had been told to wind down the agency and this Other declaration from the CFPB's Chief Operating Office that the agency was still functioning as as required by law. Jackson seems, as far as I can tell, perturbed by this case because she's very worried that what's going to happen is the agency is going to be choked out of existence before she can even issue an order. There's a hearing set for March 10 in which the judge will hear testimony from the government's declarant and the plaintiff's declarant about what's actually happening inside that agent agency.
- [54:51]
Ben Wittes
Okay, so we will check in on that hearing next week. Shifting gears yet again, Anna, how goes your quixotic effort to figure out who the administrator of Doge is?
- [55:03]
Nick Bednar
Well, Natalie, it was quite a week in the who is the administrator of Doge movement. So I've been on watch and Tuesday night we had one of our biggest happenings of the week when Trump did an address to a joint session of Congress in which he said, quote, that he has created the brand new Department of Government Efficiency Doge. Perhaps you've heard of it, perhaps. Which is headed by Elon Musk, who is in the gallery tonight night edited by Elon Musk, which suggests.
- [55:49]
Natalie Orpet
But not administered. Anna. Yes.
- [55:53]
Nick Bednar
Okay, Scott, people have made this point. People have said maybe it's like a monarchy versus prime minister situation. I went and looked at the executive order. The executive order says there shall be an administrator who is the head of Doge. The head of Doge. So that is not an excuse. Tuesday, Trump says that Wednesday Musk goes and meets with congressional leaders on the Hill who are all saying things to the effect of, you know, how can we get in contact with you to get the cuts reversed? Which implies that it is Elon Musk, not Amy Gleason and not the cabinet secretaries who are making these decisions. Then Thursday rolls around and there's a Cabinet meeting, a closed door cabinet meeting involving the Senate confirmed cabinet heads and the non Senate confirmed Elon Musk, so called head of Doge. Politico reports that in this meeting, Trump clarified that it was the secretaries who were calling the shots. It wasn't Elon Musk. Again, why did the president feel it was necessary to make that clear to his Senate confirmed secretaries who the government has been telling federal judges for weeks were the ones who were actually in charge of these decisions to freeze funding or to fire workers? Beats me, guys. But two hours after this story drops in Politico, Trump then goes before members of the press while he's signing executive orders and he says that he's going to be watching his Cabinet secretaries, and Elon and the group will be watching them. And if they can cut, it's better. And if they don't cut, Elon will do the cutting. So there were a lot of, again, contradictory statements in public and then behind closed doors that are inconsistent with what the government has been representing in court. Some of this has already made its way into the legal cases involving the Appointments Clause. Right now, there are at least three cases that are alleging Appointments Clause violation. Basically that Elon Musk. Musk is exerting too much authority within the federal government without having been confirmed by the Senate. And one of those cases, the one before Judge Schwang that we talked about last week on the podcast, I attended a hearing. We're still waiting on a preliminary injunction order from him. But in the meantime, the plaintiffs in that case have, have filed a supplemental, supplemental notice saying, hey, look at the joint session of Congress. Trump said that Elon Musk is the head of Doge, even though the government just told you that he's not. In another case, State of Mexico, New Mexico versus Musk, Judge Chutkan is still receiving filings from the parties regarding a motion for expedited discovery, because the plaintiffs want expedited discovery in that case. And then finally, there was a new case that was filed, Japanese American Citizens League versus Musk. Again, makes many of the same legal arguments regarding the Appointments Clause that have been raised in these other cases. But I recommend reading the complaint if folks are interested, because it's kind of a beast of a complaint. It's like over 100 pages. It contains the most comprehensive factual analysis of that I've seen to date of some of these issues that we've talked about regarding the public statements that people are making about what Doge is doing and what Musk's role is.
- [60:11]
Ben Wittes
Yeah, and I just want to summarize for folks or pull out something that you said, Anna, just as a reminder of why all of this matters. For the legal challenges, which are what we're focusing on here, which is Anna's reference to the Appointments Clause issues, is there are a bunch of cases that are, from various perspectives and for various reasons, challenging actions that it seems that Doge is taking. But there's now been a lot of obfuscation and confusion about whether some of those actions are actually taken by Doge or whether they're taken by agencies or whether they're taken by OPM or any number of other entities. But the cases that are challenging Doge or trying to challenge Doge, one of the bases on which you can challenge it is that it's acting beyond its authority because it is not run by someone who is confirmed by the Senate as is necessary through the and who otherwise doesn't meet the requirements for the Appointments Clause in the Constitution. So just as a backup 30,000 foot summary of why all of that matters, and as you said, Anna, the statements, public statements indicating that Elon Musk is in fact the head, if not the administrator, even though those are the same thing in the executive order, the fact that they contradict what's going on in the litigation is to me particularly notable because, because attorneys have represented in litigation that there is a specific person who is the other head of or who is the administrator of doge. So there's a lot to work through here, both in terms of the practical implications of not knowing who is in charge of this entity that seems to be exercising a lot of influence and taking a lot of actions all over the federal government and in the sense of how litigation that is trying to challenge those actions can proceed and what legal arguments will be available to them.
- [62:16]
Nick Bednar
Yeah. And can I add too, on the point about what I just want to stress that even, even though the reason I started paying attention to this is because it to what extent Elon Musk and Doge are exercising significant authority is relevant to the legal question of whether there's some violation of the Appointments Clause. I think that a secondary but also very important thing is what you mentioned, Natalie, that there are attorneys who are representing the government who have a duty of candor as members of the bar and as officers of the court who are going in and saying you're making representations that again, we've said this before, that I truly do who you know, I'm sympathetic in that I think that you can only represent what your client has told you. And you know, it seems like very often what these lawyers are dealing with is a significant lack of information which members of the public are also dealing with as well regarding what Doge is doing, what the command structure is, all of those things. Things. But we're getting to a point where the volume of public information is so inconsistent and so is so you can't ignore it. If you are a government attorney who then is going into court and is being asked these specific questions by a judge and being asked to explain these inconsistencies. And so I think it's going to get increasingly harder for these government attorneys to remain candid with the court without, you know, also I'll stop there but it's just getting to a point where it's so obvious that there are these inconsistencies between the declarations that they're putting forward and then the public statements that I think that's something the government attorneys are going to have to grapple with in terms of strategy. You know, I'm interested to see, as we get further into litigation, exactly how they deal with it.
- [64:32]
Ben Wittes
Yeah, absolutely. And it's worth noting for folks that attorneys have an ethical obligation to withdraw from representation if they are being asked to lie to the court, among other things. Let us stay within doge, but to a different issue, a different type of challenge to doge. Scott, coming back to you on Privacy act related things. So this is a case relating to DOGE personnel allegedly accessing private information of individuals. We talked about this case a bit last week, but tell us where things stand this week.
- [65:13]
Natalie Orpet
Not just this week, but today. Earlier today we had Judge Colleen Kalar Catelli, who here in D.C. deny a motion for a preliminary injunction in alliance for Retired Americans be Sent one of two cases dealing with the same basic issue here, which is trying to enjoin does from getting access to Treasury Department information, particularly big tranches of individual data, individual financial data, other private and personal information. The opinion is really interesting. It's worth reading because Kohler Catelli is like very clearly sympathetic aesthetic to the plaintiffs and underscores that they have a very reasonable basis for concern that their personal information may well be disclosed inadvertently, basically because the DOGE team came in, has acted so chaotically and clearly has not taken the steps required under the Privacy act to to train people, make sure they have procedures in place to protect private information, things like that. But the reason she doesn't provide for the preliminary injunction is essentially because because there's a she reads the D.C. circuit's precedent and irreparable harm to be fairly high. And in this case she says basically look for any individual. And these the plaintiffs here are a number of the alliance for Retired Americans and two other groups that similarly represent big groups of people whose information is held by the Treasury Department. For you all to make the case, you have to show that there's a really substantial risk that's pretty proximate of this data actually being released. And you can't really do that. Sure. She's channeling the D.C. circuit's general skepticism of PI in this case and dealing with the fact that the court has been a little reluctant and pushed back, both on standing grounds and on kind of remedies grounds about data Leakage cases in different contexts, both in this case and in the other case, New York v. Trump. In this category, they had to wrestle with TransUnion v. Ramirez. This kind of complicated standing question that the Supreme Court inserted two years ago about like whether a harm is actually real or not. If data just becomes subject to a vulnerability but isn't actually demonstrated to, to go into third party hands and damage somebody's reputation. While this wasn't result on standing grounds, both opinions, the court found they had standing. It's a similar logic here. They're basically saying you have standing but the irreparable harm that you need is just not clear enough. In this case that could change if you have additional facts. And I think I would read this to, to suggest that she's almost inviting additional facts. And in fact they have a hearing scheduled for Monday where they're going to get a bunch of more information. They're going to have a hearing, they're going to have discussions and they issued additional orders today about who they're going to be hearing from the type of information they're expecting. So this case is very much ongoing even though the preliminary injunction has been denied. Now they're essentially going to say well, well, even though we can't join these people is a reason to believe that this, this data is being made, handled that there are these harms. Can we get discovery to that effect? And if they get discovered to that effect, I suspect you will see another motion preliminary injunction and the judge might well be more open to that. Regardless, it doesn't actually do anything in this case because since the 21st of February there's already been a preliminary injunction out of the Southern District of New York where we, I believe the Southern District in New York. I can't remember what's going district from Judge Argus. Yes it is. Thank you, Hannah. Where we have already got a nationwide preliminary injury injunction issued by Judge Jeanette Vargas in that case on a very similar basis. But in that case the plaintiffs had two things working for them. One, it's the state of New York as the kind of the lead plaintiffs and similarly situated people who have a bigger basis of claiming harm. This is something that again the standing context we see very useful for states why they're often able to establish standing more easily, particularly injury in fact in a standing context. And it's interesting but the same thing seems to have carried here to rip roll injury because there are kind of are able to claim a lot of different harms because they have such a broad group of people. They're representing. In addition to that, More fundamentally, the 2nd Circuit has a much friendlier case law on whether the potential risk of disclosure of PII is enough of an irreparable entry to trigger a PI or a tro. The Second Circuit is that it often is. And so it's essentially applying a much lower bar than Judge Kolar Catelli did in the D.C. district court under D.C. circuit precedent. So that explains a little bit this discrepancy. Both cases are ongoing. We're going to see additional discovery and debate about this. And it's really getting to that question of what is being handled, what is happening in the Treasury Department, as has happened regarding this data and what's going to happen moving forward. You know, we do know in New York v. Trump that the plaintiffs have brought forward a bunch of information that they are arguing. I'm sorry, not the point to the defendants where they have arguing shows that they've improved their procedures. They are handling things more responsively. They have a lot more care involved or they had more care than was alleged initially in some of their actions they're undertaking. It's a little bit of a combination of both. And they indicated they intend a motion to narrow or potentially do away with. In part, I think they basically suggested narrowing the preliminary injunction. So we may get more dojo access to this information in the near future if Judge Vargas is. Is persuaded to narrow the preliminary injunction. But right now it's a fairly broad one that bars a lot of access or manipulation this data for the time being.
- [70:26]
Ben Wittes
Okay, Anna, were you going to say.
- [70:28]
Nick Bednar
Something so I one day? Well, one thing I'll ask Scott. Scott, I don't know if you read all of those new filings in the New York case before Judge Vargas that kind of describes the chain of command and the access. 1. One thing that stood out to me because there's been a lot of, like, very artfully done declarations in some of these cases by the government. One judge in a different case described it as wordsmithing. One thing that stood out to me in the New York case about the treasury access is that there was a representation that no one in the DOGE treasury team currently has logical access access to the treasury payment systems. And the way they define that is they don't have actual, you know, a login name and a kind of password permission. And they, you know, go through what the difference is in computer access between logical access, physical access, and then, you know, over the shoulder access. I don't know necessarily if if that is something or not. But it kind of stood out to me because it seems like Judge Vargas order covers even read only or over the shoulder access as well. But the way that one of the declarations that was recently filed is phrased is, as far as I'm aware, no, none of the DOGE treasury employees have logical access. Is that did that stand out to you or that is not a level.
- [72:00]
Natalie Orpet
Of detail I gathered from these. I'm afraid I'm not going to be very useful on that particular point, but it's a good question. Was just curious that level of detail, detail and like dissembling. I think we're seeing again these inconsistencies and wordsmithing in their answers across this stuff. And it would be great enterprise to, to someday take all these different filings and find the inconsistencies. It'd be a great use of AI at some point, potentially, if anyone's particularly inclined to do so. But, but I, I, I did not catch it, unfortunately.
- [72:26]
Ben Wittes
Yeah, I mean, I think it, it sort of raises an important reminder, which is that where we are procedurally in all of these cases is so, so early and we are pre discovery on everything. So there are inconsistencies. And I mean, the seriousness of misrepresenting things to a court really can't be overstated. But there are a lot of the information that we're sort of getting in drips and drabs, some of which is confusing or contradictory or, you know, subject to rapid change in a lot of these cases should hopefully be clarified as we proceed. But it's a lengthy process of litigation. And in particular, once you get to discovery, things move very slowly. But more information and facts to come, we hope. I want to switch gears again. We've been sort of touching on this theme, but it really requires, I think, direct attention, which is the, the politicization of doj, as I think we've called it in the past. There are a number of moves that have happened in terms of DOJ actions over the last couple of weeks that we've been paying attention to that are quite atypical to the norms that we are accustomed to coming out of the Department of Justice. And I think you've been tracking this particularly closely. So I'll come to you first. Where do you want to start? Do you want to start with the Acting U.S. attorney for the District of Columbia?
- [74:04]
Nick Bednar
Yeah, Natalie there I currently I have two, you know, passion projects in life. One is the where who is the administrator of DOGE movement. The other is what's Ed Martin up to today? The. The interim United States Attorney for the District of Columbia, Ed Martin, has increasingly done things that I think many people would agree are at least arguably unethical in terms of professional responsibility for a member of the bar. But this week, you know, we saw a number of, of, of other examples of this that has now led to members of the Democratic, members of the Senate Judiciary Committee or, excuse me, is it the House Judiciary or Senate Judiciary Committee? Can someone correct me on that? I'm not sure, but I believe it's the Senate. I believe it was the Senate Judiciary Committee. Committee. Thank you. Members of the Senate Judiciary Committee have called for an investigation into Martin over some of this content conduct. Excuse me, a bar disciplinary investigation over some of this conduct. One of them includes just, you know, this week this was reported in which Ed Martin wrote a letter to the dean of the Georgetown University Law center in which he stated that he's opening something called an inquiry, which is really not even a thing within Justice Department process into Georgetown's continued teaching of dei. He asked if they will continue to teach DEI and if DEI is discovered, will you make. Will you take steps to immediately kind of stop it, and then additionally says, you know, we won't be hiring any students who are affiliated with. With a law university that teaches dei. The Georgetown dean then responded in a way that I thought was very appropriate, essentially told Ed Martin to, you know, bug off. And, you know, I think that, again, it just kind of underscored that some of these steps that Ed Martin is taking are politicization of the Justice Department in a way that is rule shattering and norm shattering and increasingly alarming. Additionally, we've seen this week a motion from William Pope, who is a January 6th defendant, who had filed a motion in which he, after he was pardoned by Trump or the Just, and the Justice Department dismissed his case, tried to get a number of files related to his case and related to January6. He claims in this pro se filing that during the inauguration he ran into Ed Martin at an inaugural party or inaugural ball. They had a conversation about it in which Ed Martin assured him, oh, yeah, you could get access to these files. Files. But then once Ed Morton was made the interim U.S. attorney, Ed Martin's attorneys filed a motion that was in opposition to his request for getting these files. Pope is now seeking sanctions against Martin for this, and he includes in this filing a picture of him with Martin at the inaugural party that they both attended. And then I believe as well that there's this kind of brewing issue. It's been reported that There are allies of Martin and Pam Bondi who are now running for leadership positions at the D.C. bar. And you know, it's again, just kind of raises questions about whether that is a part of potentially an effort to, to or an awareness of the fact that there are potentially, you know, bar investigations or complaints that may be made against Martin. And so I think that those are some things that have happened with Ed Martin this week. But Scott, I think there were also a few other things that happened with the FBI this week. There was a controversy over Pam Bondi's or actually over the past two weeks. I believe, again, like Nick, time kind of has no meaning to me anymore. But there was a debacle with the rollout of the so called Epstein files. Pam Bondi blamed it on withholding of the files by unnamed individuals in the FBI at the New York field office. It then, you know, all kind of resulted in the firing of a top FBI official. James Dehenney, I believe, is how you pronounce his name. Apologies, Mr. Dahenny, if that is not how you pronounce your name. And yesterday there was video of Mr. Dehinney leaving the FBI to much celebration. A number of employees had gathered kind of to cheer him on. There were news cameras there. So again, just kind of a sign that there are career officials at the FBI who are being forced out or who are leaving as a result of some of these skirmishes between the DOJ and FBI over these Epstein files. But it does not bode well for the already poor morale within the ranks of the FBI.
- [80:26]
Ben Wittes
All right, so we do need to go to the latest development in the Eric Adams case, but I'm just being mindful of the time. So I am going to say to those of you who have put in questions in the chat, we will try our best to get to them, but if we run up against time, we are deeply sorry and we will answer them next week. Anna, tell us or Scott or Nick, who is most excited to talk about Paul Clements filing that just came in as we've been talking about five minutes ago.
- [81:02]
Natalie Orpet
I have skimmed it very briefly. Well, not to say I have to read it. I think I've got the top line argument from the introduction. Paul Clement, for people who may not know, is an extremely prominent conservative lawyer, former Solicitor General, very well respected and appointed by the court by Judge Ho in this case as an amicus to advise him on how to approach this question about how to handle the disposition of this very unusual case. Regarding Eric Adams, an interesting Clement, as far as I can Tell having again skimmed and read the introduction of this brief that was filed just minutes ago, or at least only only flagged for us minutes ago, is that he makes the point that Rule 48 of the Federal Reserve Rules of Criminal Procedure, which basically says you have to get court approval to dismiss a case, isn't actually designed to allow a court to sustain a case over the executive branch's decision to dismiss it. That is almost self evident, certainly after the immunity decision this past year is clearly at least Supreme Court. And I think most people would agree prosecution is a executive branch function. It's not something the court can just compel to keep happening. But instead. Instead what 48 is intended to do is to allow a judge to exercise some authority over the manner in which dismissal occurs. And here Clement makes the point that actually in this case, dismissal with prejudice might be most appropriate, which would mean Adams would essentially be off the hook for the criminal violations alleged against him. They could not bring them again, which is different than what the government was seeking on the logic that so long as the government is able to dismiss without prejudice, they can always bring the charges again. And that gives the executive branch a great deal of discretion over the individual potential leverage. And particularly if there's a concern. I'm inferring this part, but I don't think it has to be too far between the lines. If there's a concern the government is trying to use that leverage inappropriately to advance a policy objective, as has been alleged here. So long as you dismiss without prejudice, that makes that much more of a possibility. And so I believe the bottom line. I don't know whether he reaches the specific recommendation or this is just the lean of his logic in this case. But essentially he says that. He says l roads here lead to dismissal with prejudice. It should be noting as well, he notes that the executive branch has the authority to reach this conclusion through the pardon power independently. So you're not really. He says this is basically the way to minimize separation of powers avoidance in this case, in part because you're not treading on the prosecutorial decision. You're essentially saying, but I'm not going to allow you to use the threat of withholding and reimposing criminal prosecution to accomplish policy objectives and exercise leverage over individuals.
- [83:43]
Nick Bednar
But I will add that we are still awaiting. Today is the deadline for a number of responses and briefs. So we are also waiting for. Keep in mind that Eric Adams filed a motion that. In which he himself requested that the case be dismissed with prejudice, but on different grounds than the previous Motions in which he asked, along with the government, to dismiss the case without prejudice. He was alleging prosecutorial misconduct related to, you know, the public letters that were there, the letters that were made public regarding Danielle Sassoon and all that. And so then Judge, Judge Ho required the government to respond by today's date as to whether they take any position on that Adams motion that's, you know, separate from theirs other motion. And it'll be very interesting because it's requiring the government to potentially take a different position than the one that they've taken where they're asking for it without prejudice, which gives them, if there is some kind of improper quid pro quo is what gives them leverage. Right. So we're still waiting for that, as far as I can tell from the documents. But it will be interesting to see what the government or how the government responds there.
- [85:18]
Ben Wittes
Right. And I'll just note from my end, I think it's just notable to think about how much things have been changing behind the scenes, because this is obviously something everyone was thinking about carefully. But, you know, literally, Judge Ho had a colloquy directly with Mayor Adams asking him if he understood the implications of dismissal without prejudice. Prejudice, and making sure that he understood that he could seek dismissal with prejudice. And, you know, are you sure? Do you understand what it means? Yes, yes, yes. And then these motions have obviously followed, given all of the intervening events, but we will see what happens and how Judge Ho responds both to Paul Clement and to this motion that's now before him. So we have a couple of minutes left. I do want to get to one last thing, which is a couple of, to me, exceptionally troubling developments that we've had in the realm of administration's actions to target specific law firms or lawyers and the legal profession more broadly. And judge, you know, I think we can skip over because we are all quite familiar with the idea of the necessity of the legal profession and the legal system being independent from the. From the executive. But there have been some really, as I said, troubling things that have happened. So yesterday, March 6, President Trump issued an executive order that is titled Addressing Risk from Perkins Coie, which is the name of a major law firm that has, according to the language in the executive order, an official government document, has engaged in, quote, dishonest and dangerous activity that has affected this country for decades. It refers to the Steele dossier. It says that it has worked with George Soros to, quote, judicially overturn popular, necessary and democratically inaccessible enacted election laws. So this is the, you know, if you're familiar with the format of executive orders, they begin with a sort of justification for why the President is taking this action. Then they go on to explain what the action is here. The action is the suspension of active security clearances of attorneys at the firm. That's something that follows an identical action taken with respect to Covington and Burling attorneys who, who had been retained by special counsel Jack Smith. That was a week or two ago. This executive order goes much further. So it orders administration officials to review contracts with Perkins Coie or with entities that disclose doing business with Perkins Coie, which comes alongside a new requirement that government contractors disclose if they have any business with Perkins Coey. The government is. Government officials are supposed to take steps to terminate any contracts with Perkins Coie. It tells the eeoc, the Equal Employment, Equal Employment Opportunity Commission, to review this one. I hadn't caught the first time it says to review representative, large, influential or industry leaning law firms. So this is no longer just about Perkins Coie to basically see if they are in compliance with Title vii. And then it limits Perkins Coy employee access to federal buildings, limits government employees from engaging with Perkins Coe employees, and says that the government cannot hire anyone from Perkins Coie without a waiver from an agency head. So that was a lot of detail, but I think it's important to spell it out because it is such dramatic and direct and concrete action. This is not sort of a rhetorical flourish. This is real action that is quite dramatic. And as I said, this builds on a previous action which it looks like was from February 25th against Covington lawyers. There are two other phenomena. And then I'll let anyone else who wants to weigh in on this jump in. But there have been a number of attacks and public remarks against judges. I think people are sort of generally aware of those. There have actually been articles, resolutions to impeach three specific judges that have been introduced by members of Congress. I don't think anyone is worried that they're going to go anywhere right now. But it is, it is dramatic that someone is introducing a resolution to impeach judges purely because they didn't side with Trump or because they. They're accused of doing a lot of things that are seen as objectionable, but they do not allege personal misconduct or corruption or things like that. It is really pretty clearly for being displeased over the rulings that those judges are coming out with. The last phenomena or development that I wanted to mention is with regard to the American Bar association, which is the association that represents attorneys all over the United States. It's a membership based organization, but it is highly influential in terms of the legal profession, in terms of ethical roles, in terms of sort of statements of the profession, sort of rule of law, what is the role of attorneys, et cetera, et cetera. It also accredits law schools to make sure that people who go and spend a lot, a lot, a lot of money to go to law school are going to institutions that will train them effectively. Its authority to give those accreditations has now been threatened. The chairman of the Federal Trade Commission banned his staff from holding ABA leadership positions, from attending ABA events, from renewing their memberships. There were, there were senior Justice Department lawyers who pulled out of an event that is usually a pretty high profile convening for the Justice Department to explain its procedures or, I'm sorry, its policies to the broader legal community. And in other instances, lawyers have been instructed to not attend ABA meetings or participate as speakers and so on. So all of those things together, I think really bear pause. I find them deeply concerning. I don't know, Anna. Scott, Nick, if you have anything to.
- [92:12]
Scott Anderson
Add on this, I mean, I could just add briefly on the accreditation thing, as someone in a law school like one, what they're requesting is that the ABA remove rule 206, which requires the AB or which requires ABA accredited schools to diversify their faculty and students. The ABA had actually already suspended that rule as a result of the Trump administration kind of putting pressure on institutions. So I, you know, what worries me is like the accreditation is probably going away regardless if they're pushing it that far. And the ABA has already been complying with what they want even before they've asked for it. So deeply concerned concerning, you know, about what we do in that situation.
- [92:57]
Ben Wittes
All right. Well, I think on that uplifting note for the future of the legal profession, I think we will leave it there and come back to you next week with more developments on all of these cases and probably others that will be filed between now and then. But thank you to everyone for joining us. Thank you, Nick. Thank you, Scott. Thank you, Anna. And we will see all of you next week.
- [93:31]
Anna Bauer
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