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- [00:00]
Roger Parloff
Did I talk too much?
- [00:01]
Benjamin Wittes
Can I just let it go?
- [00:02]
Michael Feinberg
I wish I would stop thinking so much.
- [00:06]
Madhupak Akinola
Take a breath. You're not alone. Counseling helps you sort through the noise with qualified professionals. Get matched with a therapist online based on your unique needs and get help with everyday struggles like anxiety or managing tough emotions. Visit betterhelp.com randompodcast for 10% off your first month of online therapy and let life feel better. Hi, I'm Madhupak Enola from TED Business, and I'm here to talk about the Financial Times. Every day the world bombards you with endless headlines and noise. What matters most? Facts and context. That's where the Financial Times comes in. With clarity, depth and truly independent reporting, the FT helps you cut through the noise and see what's real and why it matters. Stay informed with the trusted source leaders around the world rely on. Visit FT.comSourceFT to read more and save 40% on a digital FT subscription.
- [01:16]
Benjamin Wittes
It's the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare, with Lawfare public service fellows Lauren Voss and Michael Feinberg and senior editors Roger Parloff and Eric Columbus. In the Oct. 17 episode of the Trials and Tribulations of the Trump Administration, we discussed the first indictment by the Trump administration accusing defendants of being part of Antifa, the indictment of John Bolton, the courts enjoining the deployment of National Guard in Illinois, and so much more. It is Friday, October 17, 2025. It is 4:00pM Eastern Time, and you are watching Lawfare Live. I'm Benjamin Wittis, Editor in Chief of lawfare, and I am here with Michael Feinberg, lawfare Public Service Fellow, Lauren Voss, lawfare Public Service Fellow, and lawfare Senior Editors Roger Parloff and Eric Columbus. Hey guys.
- [02:30]
Roger Parloff
Hey.
- [02:32]
Benjamin Wittes
So it's been a busy week, although less busy than some other weeks we've had, and I have high hopes that we are actually going to be able to finish on time today. But let us start with the first major Antifa indictment. So far, Antifa has been just something the President talked about, subject of an executive order and all that jazz. But it hasn't been the subject of litigation until, that is, today. Mike Feinberg, walk us through it. What is the indictment that was handed up today in the Northern District of Texas?
- [03:18]
Michael Feinberg
So this is a bit of a weird indictment. Before I get to the indictment itself, I'm going to go back in time a couple months and talk about the initial complaint, which is largely for the same conduct against the same individuals, yet contains zero Mention of antifa. It just describes the conduct of what I will call an attack on an ICE facility in Texas for which the perpetrators were swiftly apprehended.
- [03:50]
Benjamin Wittes
And just to be clear, let's talk. Let's describe the attack, what happened at the ICE facility, and it was the magnitude of the issue.
- [04:02]
Michael Feinberg
Yeah, so. So attack is. It's not hyperbole, to use a verb, that loaded. There were gunshots fired at ICE officials. This was an actual armed assault on the facility. Now, when I say assault, I'm not talking about like individuals and helicopters fast roping down. It's more not amateur hour, but it's people who probably saved for one do not have any formal tactical training. The one who I'm excluding from that appears to be a former Marine reservist. And according to the allegations submitted by the Department of Justice, this individual provided makeshift tactical training to the rest of the group. It's not clear what that entailed. The. They are alleged to have had a fairly large stockpile of weapons, so some of them may have been familiar with firearms even beforehand. But there was a brief assault on the facility and the individuals who conducted it were pretty quickly apprehended.
- [05:15]
Benjamin Wittes
And how many individuals were there?
- [05:18]
Michael Feinberg
I want to say 11, although the indictment only applies to two of them.
- [05:24]
Benjamin Wittes
All right, so it's a, it's a. Leaving aside whether we call it antifa and what statutes we indicted under, and whether we call it material support for terrorism or something else, it's a non trivial event of a type that we, you wouldn't have any. Like Americans of quite diverse politics would have no trouble A recognizing it as a significant terrorist event or assault, and B, the sort of thing that is reasonably prosecuted is that.
- [06:03]
Michael Feinberg
Yeah, I mean, look, wherever you stand on what ICE is currently doing or what this administration's policy towards undocumented immigrants is, I would hope we would all agree that attempting to murder federal agents is still beyond the pale and something that should be prosecuted.
- [06:24]
Benjamin Wittes
So. All right, so this is 11 people. Yeah, 11 people arrested. It's not, it's not made up. And then two of them are indicted today. What is the difference between the indictment and the criminal complaint?
- [06:42]
Michael Feinberg
The main difference is the insertion of allegations against and descriptions of what the administration is claiming is an antifa cell, which I'll get to in a second because I think that wording is problematic. And a real renewed emphasis on material support for terrorism charges. Under 18 USC 2339 A, which is actually the less frequently used material support charge, we can sort of take Those in succession.
- [07:22]
Benjamin Wittes
Yeah, so. So let's actually, let's take them in reverse succession because normally when we think of material support, we are thinking of material support for a designated foreign terrorist organization, which is a. Doesn't have to be linked to a specific act of terrorism. It's, you know, we designate Hamas as a terrorist organization. You provided material support to Hamas. You're guilty under that statute. This is a different statute. It's not. It doesn't involve a foreign terrorist group. It doesn't involve designation. It's actually a statute that as I haven't looked at it in years, but it requires that you provide material support to the terrorist act, to the actual.
- [08:14]
Michael Feinberg
Act of kind of. Kind of terrorism, kind of sorta, to use a technical term. So what 2339a does is it basically imputes material support to terrorism if you provide assistance for certain predicate offenses that are frequently used by, used or violated by terrorist organizations. In this case, it was an attack on a federal facility and the attempted murder of federal employees. It also applies to things like attacks on air force, on airports, or attacks on certain types of critical infrastructure. It's a material support charge that is not based on the identity of the offenders, but rather on the nature of the offense usually being tied to political violence. So you, you know, you don't actually need under 2339A, a formally designated terrorist group. Now, in the overwhelming majority of cases that get prosecuted under this provision, you are dealing with a designated foreign terrorist organization. I was only able to find one example of a case where it was used in the domestic setting, and that was in a series of death threats against the creators of South Park. But even there, it's not clear. It may have been for some of the mockery they made of Islam in a series of cartoons they did. So there may have been some ties to designated terrorist organizations, but it does.
- [10:11]
Benjamin Wittes
By its, by its terms, it doesn't.
- [10:13]
Michael Feinberg
By textbooks interpretation, you don't need it. Yeah, right. Yeah.
- [10:16]
Benjamin Wittes
And in fact, it predates. I believe somebody should correct me on this if I'm wrong, but as I remember, the 1996.
- [10:24]
Michael Feinberg
Yes, it was part of the omnibus bill.
- [10:26]
Benjamin Wittes
It was because this statute was not broad enough to encompass, you know, donations to support the organization that weren't tied in any way to specific terrorist acts. So like, if you give to, you know, Hamas or Hezbollah, but you don't give to support specific terrorist acts, this is not going to cover you. And so the, the law that we now call the material support law was kind of an effort to expand this because it was actually tied to specific predicate offenses and acts.
- [11:01]
Michael Feinberg
Yeah. And actually, you know, it was created in the 96 bill. I forget the exact title. It was an ominous omnibus anti crime and effective death penalty Act. I think something along those lines. And you just highlighted something really important which is that it doesn't have to be tied to the specific terrorist acts. And in fact the most prominent use of this statute in the early years after 911 was actually going after a number of US based charities that the government alleged were supporting terrorist organizations overseas. So there was a very famous series of cases against a group called the Holy Land Foundation. Some of the prosecutions were successful, some fizzled out. They were very controversial. There was a major Supreme Court case during the Obama administration about whether this statute implicated first amendment case concerns in a way that should have rendered it unconstitutional. A divided court did find for in favor of the statute's constitutionality. But this is the first time I'm aware of it being used, like I said, in a wholly domestic context where the actors are Americans, the victims are Americans. There is no foreign ideology or overseas organization implicated. There is no international kerfuffle that either caused or has been the result of the action. We're sort of turning a page here, but we should be very clear it is not a page that is unreasonable. Like what happened is very much within the framework of the statutes intended purpose.
- [12:54]
Benjamin Wittes
All right, so here's a thing that is highly unusual about the indictment, which is that it starts by. I looked at it very briefly this morning and it starts by saying these guys are members of an antifa cell and it describes antifa as an enterprise. And for those of us who have some measure of doubt as to whether there is in fact a thing called antifa, whether you call it a group or an enterprise or a whatever, there's something that rings. I don't doubt that these people fired guns at an ICE facility and should be prosecuted for that. But I am a little bit wary of accusing them of membership in an enterprise whose existence, I don't know that I believe actually is a real thing.
- [13:55]
Michael Feinberg
Yeah.
- [13:56]
Benjamin Wittes
So what do you make of the fact that there is a deliberate effort in this indictment to treat antifa as though it were a coherent. I noticed they didn't use the word group or organization, but a coherent enterprise that can be analogized to, you know, the Irish Republican army or Hamas or, you know, or the Tamil Tigers. What. What do we make of that? Is that indicting them for a fiction or is That a framing device? How do we understand that?
- [14:35]
Michael Feinberg
Yes. So it has always been the position of the FBI during my entire tenure and for a large part of which I was actually working, domestic terrorism matters, that Antifa is not an enterprise. It's not a formalized group. There's no hierarchy, there's no charter, there's no network, there's no org chart. It is rather a shared philosophy. And you know, to sort of make an analogy to another era of terrorism. I've always viewed talking about Antifa as a terrorist organization. It's sort of analogous to if you looked at like what Biter Meinhoff or the Red Brigade were doing in the 70s and talked about the Frankfurt School as a terrorist organization. Like there's an underlying philosophy that certainly inspires the actors, but that doesn't mean it's an actual think.
- [15:36]
Benjamin Wittes
Let me offer a. An example that may resonate a little bit more with our readers. If you looked at various white supremacist groups that engaged in terrorist activity. The Ku Klux Klan, the, you know, the Aryan Nation. Right. These are groups that engaged in. And then you concluded from that that white supremacy was a terrorist organization. Yeah, it's a bit of a catalytic.
- [16:10]
Michael Feinberg
Yeah, you're looking at the underlying philosophy instead of the actual organization. But look, this is very much of a piece of what is not the administration's legal strategy yet, but their political strategy, which is to try and create this overarching networked enterprise that is carrying out anti ice, anti government operations, whether they be armed attacks like this one or protests or even certain local and federal legislative efforts. And that's where it gets interesting to me because I think by injecting this into the indictment, they've taken what was pretty much an open and shot case on the merits and injected an element of politicization which I think is going to make it not easy, but easier for the defense to argue that their prosecution is somewhat ideologically driven or even.
- [17:19]
Benjamin Wittes
That the prosecution is based on factual falsity. Yeah, right. I mean, so if, if you fired a weapon at an ICE facility allegedly as an agent of an enterprise called Antifa.
- [17:35]
Michael Feinberg
Yes.
- [17:35]
Benjamin Wittes
Representing a cell. And it is true that you fired the weapon and it is not true that you were an agent of a cell of an organization called Antifa. Query whether you are guilty of the indictment or not?
- [17:51]
Michael Feinberg
Well, I mean, yeah, I mean, I don't want to make too much of that because it's very easy to supersede an indict an indictment and fix things.
- [17:58]
Benjamin Wittes
Yeah. But not a good look no, but I would say we, we have to evaluate the indictment that has been filed, not the indictment that might someday supersede.
- [18:09]
Eric Columbus
Well, would you even. Would we need to fix it though? Because as, as Mike has pointed out, under 2339A, you don't need to tie it to support for an actual terrorist group.
- [18:21]
Benjamin Wittes
Correct? Yeah, and that's. Look, I mean, they, you know, but I'm not sure I've ever seen an indictment before that in which the facts so clearly allege a violation of the statute. And yet then you lard it with facts that may not be true. And so you have. You have. Yeah, it states, it. It states an offense under the statute, but it states a lot more than that. And what in addition it states is. Is, you know, borders on fiction.
- [18:54]
Michael Feinberg
Yeah, and look, there are ways they could have written this that would have gotten the same point across without causing all of these problems. Perhaps the organizers in their communications, which the government claims to have, refer to themselves as an antifa cell. You simply say a self identified antifa cell. Right. Don't make it out to be one cog in a larger machine when there is zero proof and quite a lot of evidence to the contrary that the machine exists at all.
- [19:30]
Benjamin Wittes
All right, a few other technical questions before we move on to the next subject.
- [19:34]
Michael Feinberg
Yes, but I do have to correct one of my earlier points because Eric did raise something. Well, when I was talking about the Holy Land cases, I was talking about the material support statute as a whole, not the provision we're focusing on now.
- [19:49]
Benjamin Wittes
Right, so the provision we're focused on now predates 1996. Yes, 1996 was an expansion of that. And the Holy Land case is under the latter statute. So, Mike, what happened to the other nine people covered by the criminal complaint?
- [20:10]
Michael Feinberg
Not entirely clear that I was able to find an admittedly hasty research. It appears that they were all apprehended. There is at least one news story floating out of a local Texas publication, I believe, where one of the defendants alleges she had nothing to do with this whatsoever and was picked up some miles from the site and doesn't really understand how she got wrapped up in this. And there's some conspiracy theorizing. Well, what sounds like me, as somebody who worked in law enforcement, a little bit like conspiracy theorizing. The problem is with potentially fictionalized element thrown into the indictment. You have to take that theorizing with a little more seriousness than you otherwise would.
- [21:04]
Benjamin Wittes
I mean, I have to say I. I am not sure I have ever read an indictment with A more serious set of alleged facts pumped up more irresponsibly than this one.
- [21:20]
Michael Feinberg
Yeah, which is weird because this, this is also, this appears to be BY career A USA's. You know, the indictments we're talking about today, both this one in Bolton, I think are of a very different type and order than the ones we've spoken about before, like Comey and James. These are Career employees filing them. They do not appear to have had direct presidential interference. At least that has been reported.
- [21:53]
Benjamin Wittes
Bolton did well.
- [21:54]
Michael Feinberg
Yes, but we'll get to that in a second because there's actually. I reread the Bolton indictment and there's actually some more things that give me a little bit of comfort that it was a little more above board than I thought it would be about.
- [22:08]
Benjamin Wittes
Let's, let's get to the Bolton indictment. Now. The Bolton indictment, which is not for antifa related activity, but is for hoarding and transmitting classified information to your loved ones for diary keeping purposes and maybe book purposes, preparation purposes. Roger came down yesterday. Frankly, it was a little bit more substantial than I expected it to be and it had a kind of David Petraeus feel to it. What did you make of the Bolton indictment?
- [22:48]
Roger Parloff
Yes, that's right. So, yeah, I came down yesterday. He was arraigned this morning or in Greenbelt. Theodore Chuang has been appointed. It's 18 counts under the Espionage act, eight for transmitting and 10 for withholding national defense information. That's under 793, 18 USC 793 D&E of the U.S. code. And it's 26 pages. It's professional, it's signed by six people, including five career people. And U.S. attorney Kelly Hayes, who's also experienced real person. Thomas Sullivan, a national security chief in that department. He's been in the District of Maryland for 12 years, I think was with Edny for four years. I've been personally told that he's a legit guy and it tells a very disturbing story. And it begins the day before he becomes national security advisor, April 8, 2018. And he and these two relatives, which have been reported to be his wife and his daughter, set up a messaging chat group, a encrypted chat group on commercial type app. And then for his entire period at the NSA as a National Security Advisor, which extends to September 10th and then maybe five days afterwards they are. He is sending to them rather, you know, notes for a diary, obvious, obviously planning a book. It appears that he's planning a book from day one. And so voluminous notes, 20 pages, 50 pages of notes containing allegedly classified information, national defense information. And he's also using two private email accounts, allegedly an AOL account and a Google account. And that continues. We know that he leaves in September, September 10, 2019. He has a book deal by November. Two months later, he submits a draft in December. And this part we knew about. That's when Ellen Knight, who's doing the pre pub, says, well, she gets it. And then in January, she says, I think there's some classified information in here. And she's also worried about the incredible detail which suggests that he has kept notes which you're obviously not supposed to do and which he has signed that he won't. Won't do, signed that he won't do, you know, when he joined the nsa, signed that he wasn't doing when he left the nsa. And then the most interesting thing. And then, you know, there is the bit about the. He writes a very. The book is very, very obviously very negative toward Trump. Trump is incensed. He tries to enjoin the book. Judge Lamberth criticizes what he sees as when he looks at disputed information. I'll go, he says, there's that Bolton has likely jeopardized national security, but by then the cat is already out of the bag, so he doesn't issue an injunction. So the case is settled a year later, June of 2021. Now, and at that, and one month later, Bolton notifies the FBI. And this is the most interesting and most important stuff that he notifies the FBI himself that he's been hacked, probably by Iran, but allegedly he does not tell them that that account contained any classified information. And he doesn't tell them that he's been sending stuff to his wife and daughter all the entire time. And then he gets, a few days later, July 25, he gets a sort of an extortion type email from apparently the hacker. He says, I do not think you would be interested in the FBI being aware of the leaked content of John's email. This might be addressed to his lawyer. I'm not sure some of which have been attached, especially after the recent acquittal. I'm not sure what that's a reference to. This could be the biggest scandal since Hillary's emails were leaked, but this time on the GOP side. Contact me before it's too late. So a representative of Bolton's notifies the FBI, that's the good news for Bolton. But he does not give the FBI the attached documents that allegedly that the extortion person had attached to that letter. And in fact, the Next day, Bolton's representative tells the FBI that he will be deleting the contents of the personal email account that had been hacked. Then there's another extortion email in early August. Okay, John, as you want. Apparently we'll disseminate the expurgated sections of your book by reference to your leaked email. They don't say if, if they then gave them to the FBI or what. And then the indictment says at no point did Bolton tell the FBI that while he was the national security advisor, he had used the hacked email account to send individuals one and two documents related to the national defense. Nor did he tell the FBI that the hackers now had this information. So then we jumped to August 22, 2025, and we don't know. So that's an important thing. We don't know what occurred in the middle. But that's the search. And then the search allegedly uncovers it's for electronic devices. And there they can clearly, at least they either see for the first time or they can prove for the first time that he has been doing. I shouldn't say that they are able to prove that he's been, say that he has been sent transmitting these things to individual one and two. And they also find some hard documents, hard copy documents that they say include national defense information. So those are sort of, those are the facts. I, I think they paint a very troubling picture. They do sound a lot like Petraeus, who to me.
- [30:47]
Benjamin Wittes
At least Petraeus warned his, his, his girlfriend. He, he told her, be careful, there's code word classified stuff in there. Michael. Mike, you say you want to push back on the Petraeus analogy. Is this more or less bad than assuming the facts as stated in the indictment, which as I will argue in a moment, I do not want to do yet. Is this better or worse than the Petraeus case?
- [31:20]
Michael Feinberg
In what sense it is different. I don't know whether I would be able to rank them in terms of. If the allegations are true, which let's just argue, endo say they are, this is probably worse because if I recall correctly, Petraeus gave hard copies of number of binders to his paramour who was writing a book about him.
- [31:51]
Benjamin Wittes
And there's no evidence that a foreign power attempted to successfully.
- [31:58]
Michael Feinberg
Yeah, and when you deal with hard copies, it's a lot harder, if not impossible to get hacked. There's a. Yeah, Bolton used a wildly. If what he, if he did what the government said he did, he used a wildly irresponsible medium to do so. But there's, there's a couple. There are a couple of distinctions from the Petraeus case, which I speak, which I think speak not necessarily to the quality of forcefulness of the indictment, but do say something about the overall way that this case may have been politicized. And there's two things that come to mind. The first is Petraeus was never charged with transmission. He pled. He pled to a criminal information solely for retention. I'm not aware of in an espionage act case where you charge transmission and there is not a foreign power or a foreign powers proxy involved at the other end. So this is just, and it's not clear like it seems based on the indictment, the transition, the transmission is to individuals one and two, not to the Iranians.
- [33:23]
Benjamin Wittes
It's just may have made its way to the Iranians as a result of the hack.
- [33:28]
Michael Feinberg
Yes, exactly.
- [33:30]
Benjamin Wittes
There.
- [33:31]
Michael Feinberg
The other way I would distinguish it from the Petraeus case is the way it was investigated. I know for a fact when Petraeus house was searched, it was done very low key by two agents who were not dressed as law enforcement. There was a concerted effort made.
- [33:51]
Benjamin Wittes
Was. Did the FBI director at the time tweet about it that there were FBI.
- [33:57]
Michael Feinberg
I don't think there were.
- [33:59]
Benjamin Wittes
The New York Post have real time. The New York Times run a run New York Post run a story concurrent with the execution of the search warrant?
- [34:09]
Michael Feinberg
No, no. In fact it was.
- [34:11]
Benjamin Wittes
Was I present?
- [34:12]
Michael Feinberg
You. You were not present. Did not tweet about it. The I director did not give real time updates. It was just handled in what I have no problem saying is a more professional way. Now we can, we can point out the fact that it's not fair that very senior government officials get treated in a way where their searches are generally a bit lower impact on their life than your average government employee. But you can't deny that Bolton was treated materially different then not only Petraeus, but Cartwright or Sandy Berger or Hillary Clinton or countless other executive branch officers with whom the government has first attempted to negotiate and then tried to subpoena. Like there's an escalation usually which occurs over time that occurred instantly here. And another good point of comparison I would point out is President Trump himself. You know, the only reason the search at Mar A Lago became public was because the president disclosed it. There was no FBI press release. There were no cameras by the government filming what was going on. Agents were in suits, not rain jackets.
- [35:41]
Benjamin Wittes
I wasn't there.
- [35:42]
Michael Feinberg
You weren't there. So. So those are two real differences between the Petraeus case. But you know before we move on, there's one really interesting thing in the indictment that does speak to the politicization which I think we do have to at least raise for people because it's not necessarily self evident just from a reading. The government in this case chose to admit that it was aware of what, what Iran had collected on John Bolton. Which means that at some point the government has declassified and gotten use authority for what we can be 99.9% sure is signals intelligence.
- [36:30]
Benjamin Wittes
That's really unusual for those entire post.
- [36:33]
Michael Feinberg
War period from the end of World War II up until today. I'm only aware of one other case where that happened and it was one of the prosecutions that Robert Mueller's special counsel office did. I've never heard of it happening in a run of the mill case. I have never heard of the agency that collects signals intelligence even entertaining the possibility of doing that. This doesn't happen without presidential say.
- [37:05]
Roger Parloff
So what's, what's the specific reference in, what are the references in the indictment that are unusual like that?
- [37:12]
Michael Feinberg
Well, in order to. They say that Bolton was hacked by Iran and it has been reported in the media, you know, in the past few hours that the reason this was not prosecuted under Biden was because there was a belief that the collection capabilities they would have to give up to prove this all at court were way more important than one individual prosecution. That calculus has obviously now changed and it is difficult not to view that change except through a political lens.
- [37:55]
Benjamin Wittes
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- [41:50]
Benjamin Wittes
Which brings me to the reasons that I want to be cautious about this indictment. I was surprised by the seriousness of the allegations here, and I was impressed by the list of career officials who were on the indictment. All the things that both Roger and Mike have flagged. And yet I also am very aware that this comes in a We know that the President personally hates John Bolton. We know that as a result of this last point that Mike makes that he hates him enough to give up US signals intelligent capability vis a vis Iran, which is not something we do in order to go get him. We know that J.D. vance said publicly revealed details of this investigation in real time at the time of the raid so that we would revealing that the White House was quite read in on details of this investigation. We know that the President has called for John Bolton to be jailed. We know that the President wanted revenge for Bolton after the impeachment. First impeachment in which Bolton in fact did not play the role that he should have, but the President blamed him anyway. And we know that the same Justice Department, although not the same people who are bringing this case and the same FBI leadership that brought that did this raid, which took the time to humiliate Bolton by behaving very differently from the way it normally behaves, which announced that it was doing it. That same Justice Department is the department that brought the case against Jim Comey and against Letitia James and is plotting other such frivolous cases. And we know two other things. One is that they were in a huge rush to bring this case. Number one, that they were in a rush to bring it such that they were bothering to tell CNN we're under a lot of pressure to bring this by the end of the week, which by the way means going to a grand jury before the end of the week, which comes dangerously close to talking about events that will or are imminently to take place in front of a grand jury. In my opinion, you should not be doing that. And number two, I will just ask Mike a few questions. Is it normal for the FBI to bring a case so quickly after a search warrant in matters involving classified information?
- [45:02]
Michael Feinberg
If there are exigent circumstances where there is a possibility that something is going to go overseas to a foreign adversary, the FBI will move heaven and earth to get the indictment and arrest on as soon as humanly possible. If the situation is one where the information has already been disclosed and there is no ongoing risk. This would normally take months for the sole reason that after you obtain during a search what you believe to be classified material, it has to go through something called an original classification authority review. And what that is is you have to figure out where the information came from, what agency owned it, was it something they came up with themselves or did they get it from another source? You need to then send the information to that agency, and then that agency needs to evaluate it and determine whether it is in fact classified. You do that even when you have a document that has Banner mark, portion markings and banner markings throughout it detailing whether it's classified. So here it sounds like we're dealing with a diary, which means it should have taken considerably longer to figure out what was classified. So again, I don't think this is something that would happen without very heavy top pressure from the senior most levels of the executive branch on every agency in the IC to get this done immediately.
- [46:39]
Benjamin Wittes
So this is what I have to say on this. The presumption of innocence is always important. The burden of the government to prove its case element by element, beyond a reasonable doubt to a jury, beyond a reasonable doubt, full stop. The presumption of innocence is never more important than in a case in which the President personally hates the defendant, in which he has been read in his White House, is actively talking about the investigation in question, in which the administration. The case is irregular and departs from the way the Justice Department and the intelligence community normally behaves, in which the same Justice Department is known to be going after the President's political enemies. And I am no fan of John Bolton. Met him once. I don't like the guy's mustache. I don't like his politics. I have no brief for John Bolton. I want to see every fact in this indictment proven beyond a reasonable doubt before I'm going to say, okay, he's guilty. This is not the regular order. And there are a lot of factors playing into here that are. That should not be playing into a criminal justice process. And that doesn't mean that John Bolton is innocent, and it doesn't mean that there isn't a legitimate case for this case. But I want to see every detail proven and every motion litigated before I am willing to attach a presumption of regularity to what happened here. That is my only comment. Roger. Mike, do you have thoughts on that?
- [48:30]
Roger Parloff
Eric, were you going to say something?
- [48:32]
Eric Columbus
I was going to. Well, go ahead to answer Ben's question. I can say it afterwards. I was going to change.
- [48:37]
Michael Feinberg
I mean, look, I've been through a lot of law enforcement and intelligence training in my career, beginning when I was an attorney in the private sector, up through my role as an executive at the FBI. And one case that people often talk about, and this isn't going to seem linked at first, so just give me a Second, is the O.J. simpson trial. And the sort of cliche that gets talked about a lot in law enforcement circles is that they tried to frame a guilty man. And when they did that, they introduced a whole lot of churn into what would have been an Otherwise, simple trial. And every time the President tweets about one of these cases, every time the Director of the FBI provides live updates on an operation, you're introducing churn. That makes it less clear cut for the prosecution. And, and there's a real irony that by talking about what they want to do so much, they're making its realization much, much more difficult in the long run.
- [49:51]
Benjamin Wittes
Roger, there's a.
- [49:54]
Roger Parloff
A big gap here between the July 2021 hack and, you know, the search, and when the FBI sees the extortion note that says, do you want me to release the attached documents? And they, and they. And Bolton's representative is good enough to provide this, but not the attached documents. I mean, there has to be follow up. And so I don't know what happened at that point, if there was follow up. And eventually he came clean and said, okay, I've been sending these things back and forth. I don't know. They wouldn't drop it. Getting that sort of clue.
- [50:55]
Michael Feinberg
What.
- [50:56]
Roger Parloff
What do you think happened during the gap? I mean. Yeah, I mean, one thing that I.
- [51:03]
Eric Columbus
Well, sorry, Mike, go ahead.
- [51:04]
Michael Feinberg
No, I think what happened is you had a change in presidential administrations, and the new one has an ax to grind.
- [51:10]
Eric Columbus
Is it possible.
- [51:11]
Roger Parloff
But there would have been follow up, right? I mean, there.
- [51:17]
Michael Feinberg
Not necessarily. I mean, look, in the intelligence community of which the FBI's National Security Division is a part of, you always hear the phrases sources and methods. And in every counterintelligence or counterespionage prosecution, there is a cost benefit analysis of. Is putting handcuffs on this subject worth what we're going to have to give up in court? And it has always almost been the case that we never give up signals intelligence. I mean, to use an extreme example, the Alger Hiss controversy occurred in the 1950s. We did not make 40s, late 40s. The pumpkin patch was late. Okay, whatever. It was a long time ago. And we didn't make the Venona documents, which is how the government discovered what he was doing public until the late 90s.
- [52:15]
Madhupak Akinola
Right.
- [52:15]
Michael Feinberg
So this is very, very out of the ordinary to have happened. And as somebody who spent his entire adult life in the intelligence community, I am utterly failing to think of any explanation other than the change of administrations and the President's revenge campaign that can explain this timeline.
- [52:39]
Benjamin Wittes
We need to move on to domestic deployments. But, Eric, you had something you wanted to ask Mike.
- [52:45]
Eric Columbus
If you. The original classification authority review, which you said was. Seemed to be unduly rushed, is it possible that that took place during the Biden administration?
- [52:55]
Benjamin Wittes
No, because the search. Because they didn't have the documents.
- [52:58]
Eric Columbus
Didn't they have that the search of his. The physical documents was in August?
- [53:04]
Michael Feinberg
Right.
- [53:04]
Eric Columbus
But didn't they already have the documents that he had transmitted electronically?
- [53:10]
Michael Feinberg
Well, not necessarily. We don't know. The indictment doesn't say. But it's important to remember, like, just because you conduct a cyber intrusion into somebody's server does not necessarily mean you get everything in that server. Like, there are targeted operations to get specific documents. There are things that are more akin to a smash and grab, where you get in before their safety precautions, know you're there and you take what you can blindly. We just don't know. And, you know, that's another thing that should have taken time, was comparing what the government seized in the search this summer with what it may have known through its own penetrations of the Iranian systems. That's another reason to move slowly, not to rush it.
- [54:04]
Benjamin Wittes
All right.
- [54:04]
Roger Parloff
They did know earlier the stuff that was in the original book draft. So that, you know.
- [54:10]
Benjamin Wittes
Yes, yes, but okay, we're going to move on. There will be lots of time to discuss the details of the Bolton prosecution. But meanwhile, Chicago. Lauren, what gives?
- [54:27]
Lauren Voss
Yeah, so wasn't expecting a 7th Circuit decision, but, you know, we got an opinion anyway. So just to remind people, we had Judge Perry, Northern District of Illinois, last week, you know, gave the written opinion and giving a tro. Right. And that TRO was defendants are temporarily enjoined from ordering the federalization and deployment of the national guard of the U.S. within Illinois. What we had the 7th Circuit do is actually for the motion to stay the TRO pending appeal. They granted it in part. And what they actually did is they stayed the part of the TRO that stopped federalization, but not the part that stopped the deployment of federalized National Guard. So that's like two negatives. So basically what happened is you can still federalize the National Guard in Illinois, but you cannot deploy them. So kind of similar to where we are in Portland right now. So the 7th Circuit came out with this opinion yesterday. The panel was rovner, Hamilton and St. Eve. Great panel. That is Bush, Obama and Trump appointees, respectively. So you have a variety there. But I will say this opinion, it does not clarify a lot of the questions that we have on standards. It says we have to give a great level of deference to the president's decision of whether or not those three predicate situations in 12406 are met. And we're focusing on the rebellion or threat of rebellion. And then the third one which is unable to execute the laws with regular forces. So great level of deference, but precisely how deferential the standard is is not a question that we want to solve at this stage. Right. Like they say, we don't have to worry about it yet. What is interesting in this opinion is a couple things. One is they use ICE's own claims of success against them. So they walk through some of the facts and they say, you know, the, the federal government argues that they need these National Guard troops to enforce federal immigration law. But DHS and ICE have said that Operation Midway Blitz is a success, that they've done this many arrests. They've actually declared that the protests have not slowed them down at all. And so they say, you know, this is what the facts are. I will also say that they mirrored the district court judges language in calling the federal government's information unreliable. And that, you know, even when the people said they had firsthand knowledge, they still said unreliable. The district court judge Perry in that case had referenced some circumstances where they talked about there being assaults on federal agents, and they found that federal grand juries had refused to return indictments. And at least three of those cases, which, you know, she says that equates to a finding of a lack of probable cause that there was any crime. So them saying that there was assaults on federal agents did not happen. Then they kind of go into a conversation and this is the interesting one on the statutory interpretation. And so there's two different pieces here. There's, you know, the second situation, which is about rebellion or threat of rebellion, and then the third one about enforcing the laws. There is different definitions of what rebellion means at this point, but there is a great couple lines from the court that says, you know, the critical analysis of a rebellion centers on the nature of resistance to government authority. Political opposition is not rebellion. A protest does not become a rebellion merely because the protesters advocate for a myriad legal or policy changes, are well organized, or call for significant changes to the structure of the US Government and use civil disobedience as a form of protest or exercise their second amendment right to carry firearms as law currently allows. Right. And then they say, like they go on to talk about just because there's isolated incidents, that is not a rebellion.
- [58:36]
Benjamin Wittes
And so as someone who has an ongoing, personally has an ongoing campaign of civil disobedience in taking the form of a campaign of littering near the Russian Embassy, I actually really appreciate, and I'm being totally serious, I really appreciate that holding I am willing to accept whatever consequences there are for the fact that I dropped dead sunflowers in front of the Russian embassy, I film myself doing it. It's not a rebellion. You know, it's. It's a. It's a defiance of. It's a protest that takes the form of defiance of the law. And you want to give me a ticket, that's fine. It's not a rebellion. It's not a basis to deploy National Guard troops.
- [59:24]
Lauren Voss
Yeah. And so, yeah, I loved this paragraph and found it very strong to talk about. Okay. There's protected speech, there's rebellion. There's a whole bunch of activities in between. And the government seems to be. The federal government is focused so much on these activities that the 7th Circuit is saying, no, this is protected speech. This is not rebellion, and calling out those activities. So the definition of rebellion, still unclear, still arguing very narrow or very broad, depending on which side you're on. And then for the third provision or the third situation, the unable to execute the laws with federal forces, there is disagreement over what unable means. There's disagreement over what federal forces mean. And so we're trying, you know, to. To figure that out. So the ninth Circuit said that unable meant that the federal government was significantly impeded. Right. It can't be minimal interference, but it doesn't have to be unable to do. So. That is not the way that the 7th Circuit is. Is necessarily going, although they don't fully define it. Right. But they think it has to be more than just a little bit of impediment. Then there's the district court for Oregon is saying unable means like it's a bifurcation. It's a yes or no. You are either capable or you're not capable. And so they're kind of advocating that 7th Circuit didn't really say which way they're going to fall. And that just kind of highlighted those differences. There's a huge fight, too, over what regular forces mean. There's actually like three different versions going around. The DOJ is actually arguing different things in different cases. So in the Illinois case, DOJ said that regular forces was the status quo, not all forces. So, you know, at the point that they were having to call up atf, Marshals, da, FBI, like all of that, that was beyond regular forces. In Oregon's case, the DOJ argued that it was federal officers, but not state local officers. And then you have the Illinois district court which says regular forces actually mean regular armed forces. You also saw the 9th Circuit asking that question last week in the hearing of, you know, what. What does this mean? Could that mean the military, if you look at the Provision right before 12406124 05, seems to refer to it as the military. 7th Circuit basically says we do not need to fully resolve these thorny and complex issues of statutory interpretation because we say that the administration can't meet its burden under either standard. Now, I flag these issues because they're going to keep coming up. Right. And so we haven't talked about the Newsom case in California for a while, but one of the things that happened there. So there's going to be a hearing on the 22nd of October for this day in the 9th Circuit, but Governor Newsom has actually motioned for the 9th Circuit to vacate its day, at least in part, or issue an injunction. And he's talking about how the facts on the ground are changing. Right. And says, you know, two of at least two of 300 of the guard members have moved to a different state. And the defendant said they're going to move them all right. And they're trying to deploy them elsewhere. And they also said it was all about protecting federal property. So if it's really about federal property, then lift the state of the tro, accept for when needed to protect federal property. And then they asked, you know, or issue an injunction saying that they've continued to renew the federalization all the way through January and the reasoning on the ground is no longer valid. So we expect all of those issues that we just talked about that were completely unclear to keep coming up as the facts slowly move along that spectrum. And you actually have to figure out where that line is.
- [63:11]
Benjamin Wittes
So I think while we have been talking, the government has gone to the Supreme Court on with an emergency motion on this 7th Circuit case. Do we know anything about that at all?
- [63:28]
Roger Parloff
Seeks us. I'm sorry, Lauren, I'm assuming you haven't seen that yet. It seeks a stay and an administrative stay.
- [63:38]
Benjamin Wittes
Which they will, I suspect, get at least not the administrative stay for while the court thinks about it.
- [63:47]
Roger Parloff
Yeah, yeah, the administrative stay. I think so.
- [63:52]
Benjamin Wittes
All right. Well, we will catch up with the Supreme Court on this subject.
- [64:00]
Roger Parloff
Oh, what are. One other question I had for Lauren.
- [64:03]
Benjamin Wittes
Yeah.
- [64:04]
Roger Parloff
Were you surprised there was no or it was there an attempt to seek en banc review in the 9th Circuit when.
- [64:20]
Lauren Voss
Not for the 9th Circuit? I think a request has been made for the 7th, but I meant by the.
- [64:28]
Roger Parloff
By the petitioners in the Ninth Circuit.
- [64:32]
Lauren Voss
Yeah. I haven't seen that request in the Ninth Circuit yet.
- [64:35]
Roger Parloff
Okay.
- [64:36]
Benjamin Wittes
All right. Thank you, Lauren. Let's go back to the politicization of the Justice Department to a case that's a little simpler than the Bolton case. It doesn't involve signals intelligence. It doesn't involve really facts or anything. The case against Jim Comey. Roger. The big Comey brief on vindictive prosecution is due on Monday, I believe. But in the meantime, a little skirmish has erupted over what's called a filter team. Bring us up to speed. What is the Justice Department or the EDVA and Pat Fitzgerald fighting about here?
- [65:28]
Roger Parloff
Yeah, this is a little curiosity. The government asked for a filter team protocol to be set out. And what that means is they say they have gathered but quarantine. They haven't looked at it. They, they are in possession of evidence from the search of an attorney's electronic devices from a, quote, previous government investigation, unquote. And so they want to look through that. And the gov. And the attorney has said, has designated that. He says some of this is privileged and he's filled out a privilege log. And so the way you would go through, you would now, you would have U.S. attorneys from a different district who aren't involved in the case, who would cull through these documents and decide in the first instance are they privileged or not. And Comey has said that we're not. He want. Before we get there, he wants to challenge the validity of the search. But the weird thing, so we, we don't know what attorney this is. We don't know what investigation this was. You know, maybe did they do this with Dan Richmond? But if they did, that would be this investigation, wouldn't it? Or. Or was it an earlier investigation of this very same. I don't know what it is, but it's just a curiosity for a case that I thought was simpler than this. And it makes me wonder if they're trying to shore it up sort of desperately and add new counts or something. Because ordinarily you would do this before indictment. You would ask the chief judge who's handling the grand jury to allow you to do this sort of thing. But anyway, it's just a strange curiosity.
- [67:49]
Benjamin Wittes
It's, you know, one of 100 little skirmishes that we're going to have in this. But it's yet another one that suggests that the prosecution was not ready for prime time here, to not have not have dealt with this issue already. Normally, it's the kind of thing you do when you collect the information and the first place. Meanwhile, the President has announced another list of people he wants prosecuted, and they include Andrew Weissman, Lisa Monaco and Adam Schiff. What do we make of that, yeah.
- [68:26]
Roger Parloff
You know, that's all we have is this clip from, you know, the President saying this, which is been accurately going around social media. But we didn't want to leave it out either. These may be, you know, is who's on, on deck here? We knew about Adam Schiff. I did not know that Lisa Monaco or Andrew Weissman were on deck. But, uh, of course, Andrew Weissman, you know, he punished his whole firm. Uh, that was, I forget which firm it was, but it was either.
- [69:07]
Benjamin Wittes
It was, it was Jenner.
- [69:09]
Roger Parloff
Jenner, yeah. So why not go after him criminally as well, I guess.
- [69:16]
Benjamin Wittes
Right. Well. And of course, he's gone after Lisa Monaco's job.
- [69:22]
Roger Parloff
Yeah.
- [69:23]
Benjamin Wittes
Lisa, who is now the, I don't know, Vice President for Worldwide Government affairs at Microsoft. And the President has been yelling and screaming about how Microsoft should fire her. So. All right, well, speaking of people who have in fact quit in frustration, There is the U.S. attorney for the Western District of Virginia, because getting rid of the U.S. attorney for the Eastern District of Virginia isn't apparently isn't good enough. So what do we know about what happened here? And Western District of Virginia is kind of far away. What, what's going on in like Roanoke that, you know, is bothering President Trump?
- [70:17]
Roger Parloff
So, yeah, this was a very good New York, New York Times article. Devlin Barrett and Michael Schmidt, and it describes how the U.S. attorney there, Todd Gilbert, who's a Republican appointee, I mean a Trump appointee, and, and his deputy were both forced out because Cash Patel was, is, was pursuing this investigation there. That stems from his burn bag. Remember his burn bag? And he thinks so just for those.
- [71:05]
Benjamin Wittes
Who don't remember, Cash Patel and Dan Bongino, I forget which of them announced that they had discovered a secret room where there were a whole bunch of Russia investigation related documents in burn bags. And apparently this secret room is in the Western District of Virginia.
- [71:26]
Roger Parloff
Well, what, what is probably in the west, there's a, a classified document storage facility.
- [71:34]
Benjamin Wittes
Right. It's not even the room, the secret room. It's that when you empty the secret room to go burn the stuff, you move the burn bags to the secret document facility in the Western District of Virginia.
- [71:47]
Roger Parloff
And so therefore, yeah, that's in Winchester, Virginia. But the evidence was that Patel himself was directing this investigation. And Zachary Lee, a veteran prosecutor in that office, was saying, you know, there's nothing, there's nothing here worth pursuing. And DOJ ordered Gilbert to replace Lee with somebody named Robert Tracy or Traxi. And Lee was demoted. Blanche, Todd. Blanche personally spoke to Gilbert about This investigation and when it didn't go fast enough and they didn't verify Patel's paranoid delusions or whatever, whatever he is pursuing, they got rid of Lee and, and eventually Gilbert left. So it also mentions in passing another investigation going on in Philadelphia relating to that one is whether intelligence officials lied. Remember the intelligence assessment in late 2016 or early 2017, the so called ICA.
- [73:24]
Benjamin Wittes
The intelligence community assessment.
- [73:26]
Roger Parloff
Yes. Yeah. That said that, that Putin was not just interfering in the 2016 election, but that his goal was to favor Trump. And they're still trying to get to the, trying to disprove that, which, which is always sort of puzzling to me because I mean, knowing what we know, I mean, wouldn't Putin seem foolish if he weren't, if he hadn't been supporting Trump? I mean, are you crazy? I mean, who would you between Hillary.
- [73:58]
Benjamin Wittes
Roll down that red carpet for him in Alaska? Yeah.
- [74:04]
Roger Parloff
Anyway.
- [74:05]
Benjamin Wittes
All right, Eric, we have an injunction against mass layoffs in, during the shutdown. How long's that going to last?
- [74:16]
Eric Columbus
Well, it's a tr, technically.
- [74:18]
Benjamin Wittes
Oh, sorry injunction.
- [74:20]
Eric Columbus
So it will last a few.
- [74:25]
Lauren Voss
Days.
- [74:26]
Eric Columbus
I think until there is argument on a TRO which is from rather a preliminary injunction which is scheduled for October 28th. So this is the case that I've talked about last week and I think maybe also the week before, involving a union challenging reductions in force notices or RIFs to bunch of thousands of employees that were issued during, at the beginning of the shutdown itself. And they are arguing that the administration lacks the lawful authority to do that during a shutdown. The shutdown is first, the shutdown is not grounds for reduction in force. And then secondly that you actually cannot perform the work to carry out the shutdown because the people who are doing it are shut down and it's not an exempted activity under federal law. So the judge concluded that this was arbitrary and capricious action by the government and that the layoffs were chaotic. A lot of people did not know that they in fact had been, had been received a RIF because it was on their government, sent to their government email accounts which they are not allowed to access during, because they've been furloughed due to the shutdown. There's somewhat surprising line in here as the judge is going through the temporary, the, the, the factors in terms for, for granting a tro. She says this is Judge Ilston in the Northern District of California. And she says at the hearing counsel for defendants refused to answer the question of whether or not defendants actions are legal, instead saying that Defendants were, quote, not prepared to address the merits today. That's not a great thing to have a judge to have to say to a judge and then have repeat back.
- [76:30]
Benjamin Wittes
In her opinion, not prepared to say that the client's behaving lawfully.
- [76:36]
Eric Columbus
1 I would assume they might have a bit more to say about it at the preliminary injunction hearing on October 28th. So we will pick that up again then.
- [76:45]
Benjamin Wittes
All right, Roger. We have two immigration updates, the first involving our old friend Kilmar Abrego Garcia, both in his criminal case and in his civil case. What's going on with Mr. Abrego?
- [77:03]
Roger Parloff
Well, we have not heard in the civil case. We're waiting to hear from Judge Sinis about whether to release him. And I had sort of thought we might here this week. We haven't this is the, we talked about last week. The has to do with the Zadvitas decision.
- [77:23]
Benjamin Wittes
I just want to cut in and say if Judge Sinis hasn't ruled yet, given what a serious and business like judge she is, that means she's writing a very substantial opinion. Do you agree?
- [77:40]
Roger Parloff
Yeah, but there's also been some sealed documents filed. And so there's, remember, there's a, there are some moving parts. You know, is Costa Rica still a possibility? Could, could, could the government say, okay, let's send him to Costa Rica after all, or, or could they actually get further along with Eswatini, could get better evidence. So I, I don't know if that sort of maneuvering is going on as well. The, a lot is happening in the criminal case where his, he filed a bunch of motions, some of which are pretty interesting. The main, the most, you know, one of them is the motion to compel, you remember, relating to his motion to dismiss for vindictive prosecution. Prosecution. And we got a little some other, some glimpses of information. The government is basically saying we're not providing anything. Everything is protected by deliberative process, executive privilege, attorney work product privilege. But they do have, according to Abrego's lawyers, they do know that there are 12 emails that went back and forth between McGuire, who's the U.S. attorney now bringing it, and the deputy Attorney General's office, that's Blanche's office. And so they would like to get, they would like to see what is in those. And I think that that might be disputed by the government. So I'm going to hedge that. But that is what the Bragos are saying. He also says there's multiple emails from Ben Schraeder to Maguire. Ben Schrader is The guy who quit the chief of the criminal division rather than bring basically this case. So that's interesting. The only thing they will provide from Ben Schrader are his public, the letter and the blast email, which are benign, that he left for his office, his official statements for why he resigned or of resignation. There's one other thing in there that's interesting where the Abrego's attorneys allege that when it gets beyond Maguire, when they begin to ask, okay, what's going on? What are the discussions in DHS about this case, about why to bring this case, why to resurrect this case after it had been. No one had pursued it for 900 days. Why did they suddenly remember the traffic stop was in 2022? They don't pursue it until he's in El Salvador. That's what they're trying to get at. Why is this resurrected? And what they say is that no one from the doj, including the Deputy Attorney General's office, has responded to Maguire's inquiries. So they're saying that DHS and all these other agencies are basically stonewalling Maguire. Again, I don't know if I imagine the government disputes that, but I don't know. So those are interesting. There's also a couple motions to suppress. One is based on the traffic stop itself, and one is based on his from 2022, and one is based on his when they pick him up In March of 2025, just before, you know, three days before they take him to El Salvador in the first. It's sort of interesting. You remember he stopped because he's going 75 in a 65 mile an hour zone. And the guy, the driver, the highway patrol has his body camera on. And he does tell abrego, you're going 75 in a 65 mile an hour zone. And Abrego says, I was going 70. He said, and, and, and that it's a 70 mile an hour zone. And apparently it is a 70 mile an hour zone. Or at least the defense, Abrego's attorneys think they can prove that. And there's no evidence of what his real speed was. And so they say the stop was, even if they're right, the highway patrolman should have known what the speed limit was if that's why they were stopping him. And it's an unreasonable stop. And then the fruits of that would be suppressed. I don't, I don't know. That's sort of interesting. Then the other one has to do with something that has happened a lot, which is when you know, remember, he's arrested in this year in March. He's bringing his son home from work and he's stopped without any warrant and he's detained and so on, and repeatedly. And they've acknowledged there's no warrant. But there's this blurriness about what, if any, I think they tell him your status has changed. And there is a lot of blurriness about these stops without warrants, whether a warrant is needed or whether the fact that, you know, umpteen years earlier, there was an order of removal, that's all you need. So that's. That's what that one's about. And apparently he also made some statements once he was in custody that they're disputing, whether there were Miranda rulings about whether, whether he got his Miranda warnings. That that's a matter of dispute.
- [84:29]
Benjamin Wittes
All right, I will just say about Abrego's criminal case. Watch that vindictive prosecution motion, because whatever else is going on in Abrego Garcia's case, and that is a super interesting and complicated case, that motion has implications for Letitia James. It has implications for Jim Comey's similar motion, and it has implications for the motion I expect John Bolton will eventually file, as well as everybody else who is politically targeted by the administration. Abrego is like two or three months ahead of every other criminal case that's going to raise that issue. Finally, Roger, we have some movement in what we used to call the JGG case, but we now have to to call the Sanchez case. I'm not playing. I'm still calling it jgg. It was hard enough to keep the three letter cases separate from one another. I don't want to have to rename all the cases. We're calling it jgg.
- [85:35]
Roger Parloff
Yeah, I think that's one of the relatively easy things to decide about this case. The, the next step. The next step is a tough one because the plaintiffs have filed a motion for a preliminary injunction to certify the class. The plaintiffs at this point are all of the citizens, non citizens, who were taken from us to Sakat in El Salvador under the AEA proclamation. And then they're now in Venezuela. And what they seek at this point is determinations of whether they are TDA Trend Aragua. They seek an order that would for the government to facilitate plaintiff's ability to contest their AEA designations, including submitting a proposal to the court regarding how they intend to do so. A lot of problems with this case at this point. They're in Venezuela. We're in, you know, it Says we seem to always be one step behind. You know, we, we. Judge Boasberg found that he didn't have. The US did not have custodial. What's the constructive custody over them in Sakat? Now we have pretty strong evidence that there was constructive custody over them in Scott, but they're not in Sakat anymore. They're in Venezuela and they're certainly in danger. There's good evidence that they're in danger. They're in danger from both sides, Maduro side. But the, the anti Maduro people who think they're trend they're in trouble and they're in so much trouble they're willing to come to this country again. But what Boasberg can do with this, I don't know.
- [87:52]
Benjamin Wittes
Right. Not all problems are remediable by courts, including by excellent district judges for whose. For whom no good deed goes unpunished by the Supreme Court. All right, we have four questions in the queue. We have eight minutes. We are going to finish on time today. David Emery, what's on your mind? Okay. Attacks on Venezuela country, on their citizens and reprogramming rdte to pay DOD salaries are two blatantly illegal actions. Since SCOTUS says we can't prosecute after the President leaves, who has standing to sue to stop these actions during the time he's in office? Congress could and should impeach, but we know that's not going to happen. All right, so this is a relatively easy question with respect to the Venezuelan, Venezuelan citizens killed on the high seas by US strikes. And the answer is nobody has standing to challenge that. And that is why one of the reasons why, at least under current standing law, whether that, whether that standing law should be relaxed because the result is ridiculous is a different question. But there is nobody who is likely has standing who is killed in these boat attacks. Now there are a few important wrinkles to that, which is someday if you blow up enough boats, you're going to blow up a boat with an American citizen on it. And that American citizen certainly has standing. So that's the mechanism by which you get standing to challenge the boat bombings, which by the way, I think are frankly lawless. And I'm not, I'm not defending in any way. The, the other question is a, is a trickier one. So if you are somebody for whom there was appropriated money and that money was reprogrammed illegally, you have standing to sue. Now the question is how clearly is it that money has to have been obligated. And so, but you know, if you're if you have enough billions of dollars at issue and some of it has been obligated, you might trip over somebody who is standing there now whether that person will choose to sue or just choose to wait until the shutdown is over and then Congress replenishes the funds and then they get paid. They might not want to litigate it, but there are people, probably people who have standing, depending on just how careful the administration is or isn't in reprogramming Defense Department money. John Hawkinson, the floor is yours.
- [91:10]
Michael Feinberg
Thanks, Ben. As to Posse Comitatus and the difficulties of justiciability with the San Francisco District Attorney's announcement reported by Politico that she, quote, won't hesitate to charge federal agents with excessive force and similar, does the PCA have implications for the usual kinds of law enforcement immunity that would normally be a defense to such charges? And if so, is that a plausible way around the apparent difficulties of enforcing the pca?
- [91:39]
Benjamin Wittes
So I cannot answer the question because my knowledge of the PCA is just not good enough to do that. Lauren and Scott are, are. Scott is not with us today and Lauren is disappeared. Eric, do you have a sense of the answer to that question?
- [92:05]
Eric Columbus
I mean, the idea, John, would be that the, the PCA would rebut some kinds of law enforcement immunity.
- [92:17]
Michael Feinberg
Yeah, something like that.
- [92:19]
Eric Columbus
I don't know, but it's not clear. I mean, that would. That would require finding that. That the PCA itself is being violated, wouldn't it?
- [92:28]
Lauren Voss
I don't know.
- [92:29]
Roger Parloff
I'm just kind of spitballing.
- [92:30]
Eric Columbus
Yeah, I don't know. I would have to think about that. It seems unlikely just the way things are.
- [92:37]
Benjamin Wittes
All right, so I'm. I think you've stumped us, John. Let me suggest that you save this question for Lauren and. Or Scott. The next time they are on the show.
- [92:52]
Lauren Voss
It.
- [92:53]
Roger Parloff
Is it federal agents or is it federal military? Is it. Is it National Guard?
- [92:59]
Michael Feinberg
It's specifically agents of the federal government, which I think is a term of art, and I'm not precisely sure about, but the article, the political article spends.
- [93:07]
Benjamin Wittes
Some time on that.
- [93:09]
Roger Parloff
Okay. Okay.
- [93:11]
Benjamin Wittes
So Jeff asks who has standing to sue over the Venezuelan drone strikes. I've already answered that. What could they sue about and against whom would they file suit? So we sort of know the answer to these latter two questions because these were the questions that came up in the Anwar Alkey case, who was of course a US Citizen and therefore, you know, alleviates the standing problem that happens if these are Venezuelans and Alaki sued or Alala Key father really sued under a due process deprivation theory. And there were a lot of reasons why he lost that case. But there are wrongful death theories basically that you could allege if you, if you can claim that the U.S. military or intelligence officers intentionally killed you. Right. Without any kind of due process. So that's the answer to that. Finally, the anonymous attendee. And we're going to close with this question and we're going to end on time. How do each of you define constitutional crisis and why are we by your definition in one? Eric, what's a constitutional crisis and are we in one?
- [94:42]
Eric Columbus
It's not going to be helpful. But I have no idea what a constitutional crisis is. And if it means that bad the courts are doing bad things and not enforcing the Constitution, I would suggest that is something that's been true for long stretches of our constitutional history. And you could look at the time when the equal protection clause was basically interpreted, the 14th Amendment was interpreted into law. Allow de jury segregation in schools and public facilities from Plessy until Brown. And you could look at the complete non enforcement of the fifteenth amendment and courts allowing that to happen of not having blacks the right to vote, mostly in the south for many decades for those constitutional crises. Those were things that probably were.
- [95:35]
Benjamin Wittes
Worse.
- [95:35]
Eric Columbus
Harms were being done to Americans, the larger number of Americans then, then now. So I don't really have a good answer to that question.
- [95:42]
Benjamin Wittes
Roger, what's constitutional crisis and are we in one?
- [95:47]
Roger Parloff
Well, in with the, I know it when I see it. Yes, I think we're in one. But, but I, I don't know if I'm saying something sensible. The thing I, I just can't. You know, you have the President of the United States very openly announcing the enemies he's going to prosecute, whether there's evidence or not. And you have Congress that doesn't care. And, and you have a, the Washington Post can't muster up any sense of self, you know, righteous indignation. It doesn't distinguish this from, from the trivia, some trivial thing that happened under Biden. Yeah, I think we're there, but I can't really define anything.
- [96:44]
Benjamin Wittes
I will just say I hate the term constitutional crisis. I think it's a completely meaningless term. And, and I, I think we're certainly in a democratic crisis. But you know, the Constitution kind of works. The parts of it that work, work. The parts of it that don't work don't work. And whether you consider that a crisis is really up to you. Here's what's a crisis. We are now a minute over. We are ending on time today, or at least no more than a minute late. We're going to be back next week. A lot of stuff will be different, but we'll be here and so will you.
- [97:26]
Madhupak Akinola
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare Podcasts by becoming a Lawfare Material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patia and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening. Hi, I'm Madupakinola from TED Business and I'm here to talk about the Financial Times. Every day the world bombards you with endless headlines and noise. What matters most? Facts and context. That's where the Financial Times comes in. With clarity, depth and truly independent reporting, the FT helps you cut through the noise and see what's real and why it matters. Stay informed with the trusted source leaders around the world rely on. Visit FT.comSourceFT to read more and save 40% on a digital FT subscription.