The Lawfare Podcast: Lawfare Daily — The Trials of the Trump Administration (Nov. 21, 2025)

Date: November 24, 2025
Host: Benjamin Wittes, Editor in Chief, The Lawfare Institute
Panel: Lauren Voss (Public Service Fellow), Molly Roberts (Senior Editor), Roger Parloff (Senior Editor), Eric Columbus (Senior Editor)

Overview

This episode of "The Lawfare Podcast" is a rapid-fire, comprehensive roundtable focused on the ongoing wave of litigation, investigations, and court rulings related to Trump Administration actions, especially those challenging the use of National Guard troops, ongoing prosecutions of high-profile political figures, DOJ politicization, and related constitutional issues. The discussion covers recent rulings, evolving legal strategies, procedural confusions, and the broader implications for rule of law and national security.

Key Topics & Discussion Points

1. Litigation over National Guard Deployments

[04:49–19:51] D.C., Portland, Chicago, and Memphis

Lauren Voss delivers detailed updates on the multitude of lawsuits and injunctions related to Trump Administration's deployment of National Guard troops for law enforcement in major U.S. cities.

• D.C. Injunction:

  • Judge Cobb issued a preliminary injunction halting national guard deployments in D.C., “enjoining DoD defendants from deploying or requesting the deployment of any members of the National Guard in D.C.”
  • Key Legal Analysis:
    • The President’s powers as Commander in Chief are bounded by D.C. code; can’t invoke a “free-floating Article II power” for unspecified use of the Guard ([09:45]).
    • Provisions in D.C. code (Title 49 §§102 & 103): Only specific officials (Mayor, U.S. Marshal, National Capital Services Director) can request Guard intervention, which didn't happen here ([09:44]).
    • Out-of-state National Guard deployments must be conducted under the Emergency Management Assistance Compact (EMAC).
  • Notable Quote:
    • “She says there is no free-floating Article II power when it comes to D.C. National Guard in militias status...it’s bounded by Congress’s power to govern the District and military forces.” — Lauren Voss ([12:45])

• Portland & Chicago Cases:

  • Portland: Two consolidated appeals after injunctions against federalizing Oregon National Guard; SCOTUS expected to rule in an Illinois case soon, which could affect the outcome ([18:27]).
  • Chicago: Ongoing dispute over federal agents’ coordination with local law enforcement and expanding the President’s Article II powers to use military as law enforcement, raising concerns about Posse Comitatus ([19:59]).
  • Notable Quote:
    • “They now explicitly put out that claim that inherent Article II protective power is an exception to Posse Comitatus. We can do law enforcement.” — Lauren Voss ([22:11])

• Tennessee (Memphis) Case:

  • Court granted a temporary injunction against the governor’s deployment of the National Guard for law enforcement, finding no statutory justification ([24:33]).
  • Tennessee law allows such deployments only upon specific emergency triggers or local requests, neither of which applied ([24:36]).

2. Prosecution Developments: Letitia James, Adam Schiff, James Comey

[38:21–81:56] Politicized Justice Department, Grand Jury Issues

Molly Roberts leads a detailed breakdown of DOJ politicization and the procedural chaos in multiple high-profile prosecutions.

• Letitia James & Adam Schiff:

  • Private actors acting as ‘special mortgage fraud attorneys’ (e.g., Ed Martin) accessed grand jury information and were involved in witness tampering and potentially illegal investigations without DOJ supervision ([43:49], [46:11]).
  • Pattern of politically motivated referrals based on dubious sources, retaliation against internal investigators, and misuse of the Justice Department for vendettas ([44:19]).
  • Notable Quote:
    • “These guys are going around saying that they work for the Department of Justice and doing this without the federal prosecutors in Maryland and the FBI knowing…he is believed also to have reviewed grand jury information related to the James case, which, again, he has no authority to be doing.” — Molly Roberts ([41:20])

• James Comey Case:

  • Confusion over whether the actual indictment was ever presented to a grand jury — a near-unheard-of procedural error ([71:49–75:47]).
  • Successive district judges and magistrates are unsure if defendant was legally indicted; the transcript is ambiguous ([74:36]).
  • “You actually have a question whether a U.S. attorney who was not lawfully appointed failed to present a grand jury with the indictment for which a real person is actually on trial.” — Benjamin Wittes ([75:49])
  • Multiple motions: selective/vindictive prosecution, improper appointment (of Halligan), absence of valid indictment, and other procedural grounds for dismissal.
  • Quote:
    • “Defendants usually don’t have this kind of embarrassment of riches.” — Benjamin Wittes ([81:00])

• Outrageous Government Conduct Motions:

  • Letitia James case features a motion based on the pattern of DOJ manipulation, rogue ‘attorneys’, and political interference; Comey’s team is considering but not yet filed a similar motion ([50:13]).

3. Civil Liberties, Use of Force Litigation, & Grand Jury Issues

[28:15–37:06] Chicago, Bill of Particulars, Grand Jury Disclosure

Eric Columbus reviews recent opinions related to ICE/CBP use of force in Chicago:

• Judge Ellis issued injunctions against federal use of force, but the Seventh Circuit (Judge Easterbrook) found them overbroad, suggesting the district could fashion narrower relief ([32:46]).
• Judge Ellis’ 233-page opinion meticulously documented government misrepresentations and video-evidence contradictions, possibly laying groundwork for further sanctions ([34:52]).
• Ongoing debate about what exculpatory evidence was withheld from grand jury, how notes and testimony were potentially misrepresented ([89:47]).

4. Selective & Vindictive Prosecution Motions

[62:05–68:10] James & Comey Briefs

• Prosecution against Letitia James is argued to be selective (ignoring Trump-aligned comparators) and motivated by fleeting, recent presidential antagonism ([62:27]).
• Attempts by DOJ to downplay Ed Martin’s role and dismiss claims of animus since he “has no authority”; strategy to focus only on prosecutor Lindsay Halligan ([65:20]).

[68:11–69:31] Racial Dimensions

• Trump’s public statements about Letitia James are racially charged, but defense hasn’t invoked race as a formal defense ([68:10]).

5. Other Significant Cases

[55:10–61:20] John Bolton Prosecution

• Despite being widely regarded as “vindictive prosecution,” courtroom proceedings are collegial and orderly, with defense and prosecution both recognizing complexity due to multiple intelligence agency equities and classification reviews ([58:40]).
• Notable Quote:
  • “This is the kind of thing that, in a case that has been responsibly handled, happens before an indictment.” — Benjamin Wittes ([59:12])

[91:50–98:08] Immigration Litigation: Kilmar Abrego Garcia

• Challenge to removal procedures: DETAINEE wants Costa Rica (where he has cultural and linguistic ties) but government tries to send to Liberia, using technical arguments to block preferred destination ([94:17]).
• Judge searching for basis to release based on absence of a removal order, not just Zadvydas (indefinite detention) issues ([98:06]).

[98:42–104:24] University Defunding Case

• Trump Administration’s punitive efforts (with DEI-linked conditions) to withhold or recover funding from UC system enjoined by Judge Lynn; actions seen as unconstitutional retaliation and arbitrary under the APA ([100:39]).
• Notable Quote:
  • “Sometimes it’s important to realize when you’re saying these things to Fox News that there are actually people who hear them beyond your intended audience. And that came back to bite them here.” — Eric Columbus ([103:19])

Audience Q&A Highlights

[104:24–110:57] Pardon Effects, Judicial Trust

• Reputation of Government’s Lawyers: Repeated lack of DOJ candor leads to diminished judicial confidence.
• Pardons: Accepting a pardon removes Fifth Amendment self-incrimination rights; thus, those pardoned can be compelled to testify.
  • “It is the case that when you’ve been pardoned, that abnegates your right against self-incrimination. You have no exposure.” — Ben Wittes ([108:11])
• Presumption of Regularity at DOJ: No anticipation the state supreme courts will globally suspend the presumption of DOJ regularity (“No”, echoed by all panelists) ([110:57]).

Notable Quotes & Memorable Moments

• “You can only lie to me so much before I’m going to have contempt proceedings.” — Benjamin Wittes, discussing Judge Boasberg referencing misrepresentations by ICE/CBP ([36:04]).
• “You have these kind of wild men characters... they’re not present because they do mortgages...” — Benjamin Wittes ([49:19]).
• “The idea that John Bolton and Tish James have the same lawyer warms my heart.” — Benjamin Wittes ([55:22]).
• “Defendants usually don’t have this kind of embarrassment of riches.” — Benjamin Wittes ([81:00]).

Important Timestamps

• National Guard Litigation: [04:49–27:00]
• ICE/CBP Use of Force & Grand Jury Issues: [28:15–37:06]
• Politicized DOJ Cases (James, Schiff, Comey): [38:21–81:56]
• Immigration Litigation: [91:50–98:08]
• University Defunding Lawsuit: [98:42–104:24]
• Audience Q&A: [104:24–111:13]

Conclusion

This episode offers a dense, articulate, and at times irreverent tour through the legal minefields of post-Trump America. It spotlights extraordinary procedural failures and improvisations in DOJ operations, the challenging legal landscape around federal deployments and prosecutions, and the continuing battle over the proper lines between politics and law. The hosts’ candor—“when we don’t have good answers, we don’t have to fake it”—mirrors the tone of the legal system grappling with unprecedented situations ([18:03]).

For full legal analyses and regular updates, visit LawfareBlog.com.