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- [00:00]
Lauren Voss
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Benjamin Wittes
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Lauren Voss
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Benjamin Wittes
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- [04:53]
Lauren Voss
Yeah. So the state of Oregon and the city of Portland brought a case against the president, the SEC staff, the Department of Defense, DHS and DHS secretary. We're talking today about a motion for a TRO and a stay of Secretary Hegseth's 28 September memorandum. So he federalized 200 members of the Oregon National Guard. And this TRO is to stay that federalization. This is all around if anyone was following the president on Truth Social last weekend, his post about war ravaged Portland and the need to deploy troops and his authorization of full force if necessary. This all comes from that statement. The state of Oregon has maintained that there is no need to federalize these troops. And so they have brought this TRO to try and stop that from happening. There was a hearing this afternoon.
- [05:52]
Benjamin Wittes
Before we get to the like, you know, I know that Portland had some issues during the George Floyd protests. There were, you know, people who were kind of barricading the courthouse and whatnot. And there was, there were some, some issues both in Portland and Seattle. But I don't particularly have a sense of Portland as war ravaged these days. It's, I mean, the word I would use for like Mosul or something. What is going on in Portland that might prompt, even with a bit of hyperbole, the president to call it war ravaged? I mean, Reed College is a wild place, but it's not that wild.
- [06:39]
Lauren Voss
So this actually revolves around one single facility. There's one ICE facility in Portland. There were a number of protests in June and some arrests. The last arrest was, I think, the 19th of June. The state of Oregon and the city of Portland is arguing that they're all lawful protests. Now. There's typically about 30 people outside of the site. The. There is a wide divergence in the facts that are being argued in this case. The government is arguing that the protesters are violent, they're impeding government vehicles. They pointed out that the building did have to close for three weeks, but that was end of June, beginning of July. But they're stating that the federal Protective Services, which is, you know, a law enforcement agency with dhs, is overwhelmed both with these protests and the threat of protests. They pointed out doxing that has occurred and a couple other things. So it's interesting, just when you get to the facts, there's a significant dispute over how violent are these protesters, how serious is this threat, how overwhelmed are the local federal forces, and then is local law enforcement helping or refusing? And during the hearing today, there was a dispute between the two parties on. On whether or not local law enforcement was helping or not.
- [08:07]
Benjamin Wittes
All right, so there's taking the government's argument at face value, which I understand the plaintiffs here do not. There is a violent protest centering on one ICE facility, and the government in response is planning to send federal troops to Portland or National Guard. What are. What. What is planned or what has been announced that this suit is in response to?
- [08:46]
Lauren Voss
Right. So Secretary Hegseth issued a memorandum federalizing 200 Oregon National Guards members under Title 10124 06. That was the same statutory provision that was used in Los Angeles. There's a debate on, you know, which of the different provisions underneath it they're using as a factual predicate, but it's the same one as before. And so those 200 troops are supposed to be to protect federal property and federal operations, but presumably around that one ICE facility.
- [09:23]
Benjamin Wittes
All right, so the government announces this, you get a lawsuit, and then we swap. Before we even get to today's hearing, we've got like musical chairs with the judges. What's going on there?
- [09:40]
Lauren Voss
Yeah, so yesterday, defendants filed a brief suggesting that Judge Simon recuse himself to avoid the appearance of partiality. His. His wife is a. Is in state government. And so they said that she'd interfaced within her official capacity with the defendants, and she had made public statements that this was a violation of law. You know, she'd been in a press conference with the governor. The judge decided to recuse himself yesterday. And so we had a new judge appointed late yesterday afternoon, west coast time. Judge Immergut. So she just got this yesterday. She had the hearing today.
- [10:24]
Benjamin Wittes
And what do we know about Judge Immergut other than that she continues the long tradition on lawfare live of judges with vaguely amusing names.
- [10:37]
Lauren Voss
We know that she was appointed by Trump during his last administration. I haven't seen a whole lot on her, on her rulings or personalities since then. So we, I can't tell you much more than that. She is indeed a Trump appointee. But during the hearing today, she seemed like she had done a lot of research. She was somewhat skeptical of some of the arguments the government was providing, even if, you know, she was deemed to need to be highly deferential. She was like, you know, where in the record are these facts that I'm looking for? And she said that she would rule either late today or at the latest tomorrow.
- [11:18]
Benjamin Wittes
And so tell us a little bit about, and you know, I ask about what we know about these judges partly because, you know, oftentimes judges, particularly at the district court level, are just, you know, way more complicated and interesting than people assume based on the party of their appointing president. And particularly in places like the 9th Circuit, in a state with two Democratic senators, the fact that somebody is a Trump appointee actually may mean very little about what you can expect of them from a, from a performance in a particular case. So tell us about the hearing today. You said it ran just under two hours. What was, what was Judge Immerse main concerns in talking to the respective parties?
- [12:21]
Lauren Voss
Yeah. So in her opinion, this is going to come down to the statutory claim of 124 06. And she read it actually to the parties. Right. And so just to remind everyone, that allows three predicate situations to mobilize National Guard. So the first is invasion or danger of invasion by a foreign nation. That one's not one we're talking about today. The second is rebellion or danger of rebellion against the authority of the government of the United States, which is one of their claims. Interestingly, the judge opened it up. I said, I don't think anyone's actually argued that we're in danger of rebellion, but correct me if I'm wrong. And they were like, actually we have, we have argued that. And then the third one is it.
- [13:05]
Benjamin Wittes
The government's argument is that there is a rebellion ongoing in Portland, Oregon, that.
- [13:11]
Lauren Voss
There is a danger of rebellion.
- [13:13]
Benjamin Wittes
I see, okay. Danger of rebellion. That's like the necessary and proper clause. It's like, you know, it's. It's a degree of attenuation from actual rebellion. But. All right, all right, so we got dangerous rebellion. What else we got then?
- [13:31]
Lauren Voss
The third one is the President is unable, with the regular forces to execute the laws of the United States. Right. And so that's the one that we saw in the LA case, and that's what the Ninth Circuit decided that the federal government was likely going to be able to prevail on. And so we saw a lot of conversations specifically on that today, and whether or not that was met. I'd say the judge, though, did look a lot to the 9th Circuit decision and Newsom versus Trump, you know, on how deferential she needed to be on whether or not those statutory preconditions were met. Right. And so that opinion talked about needing to be highly differential, but the opinion that that decision needed to be conceived in good faith in the face of an emergency and a colorable basis. Right. For those decisions. So there is, you know, some level of review on, like, you know, the government arguing that it is not something that can be reviewed. The 9th Circuit didn't really look at that subsection on rebellion because they thought, you know, the section on enforcement of federal laws was enough. They did go on to state, you know, that minimal inference interference is not enough. Right. If it was just minimal inference, why would you have subsections one and two? They would just be completely subsumed. But that then leaves the judge with some questions, because this is a very different scenario than LA. Right. There was 2,000 troops. There was actually violent protests going on. So she had a couple questions. First was like, how was this decision actually made by the President? What am I looking at? So the Secretary of Defense, when he authorized those 200 troops federalized, included that June 7 memorandum that the President put out, which talked about violence across the nation, but was assumed to deploy troops to la.
- [15:22]
Roger Parloff
Right.
- [15:23]
Lauren Voss
And there was no specifics in it, but it's also from June 7th. So she had a question of, is this what we're referring on and is it from that long ago? Then what is. You know, then you can't say. It's about current and ongoing events. And so she had some specific questions on, okay, is this the decision that we're looking at here? And then what are the geographic and temporal requirements of this decision? Right. Is it, you know, is it the fact that there was a shooting in Dallas at an ICE facility? You know, is that what you're counting and everything that you seem to be having in the record was about earlier incidents of violence, you know, June type things. The defendants did talk about President Trump's true social posts as a possibility of how that decision was made. She seemed skeptical that we should be turning to true social to determine presidential determinations of federalization and deployment of National Guard, but that they. Oh, you're muted, Ben.
- [16:24]
Benjamin Wittes
Oh, sorry. I said, really? It seems like they are official presidential statements. Unless somebody wants to challenge the authenticity of a truth social post as representing the position or view of the President. I'm not sure why it's any different from the president standing in the, you know, before a podium in the press room and saying, here's what I think.
- [16:53]
Lauren Voss
Well, and that was one of the pushbacks that the defendants had is there's no requirement in the statute for how these determinations are made. They don't even have to be written. Right. They could. They could be oral decisions. I will say that one of his true social posts came out after the decision and the deployment. And so there was something about, okay, well, you can't, like, post hoc say, that's. That's what did it. So it seems to. Then, you know, she's trying to actually understand the facts here, which we already talked about a little bit of, like, what really happened here. Right. So they did talk through the DHS request for assistance that was provided in the case as well. And at least DHS is arguing that the facilities have come under a coordinated assault by violent groups intent on obstructing lawful federal actions. Those groups are aligned with designated domestic terrorist organizations. Right. And so that is at least the claim on their side. The judge really seemed to focus, though, on specific examples and look at what dates they occurred. Seemed to not think that including things like Dallas was in the scope, but then started to really look at. Okay, well, talk to me about the federal forces not being able to execute the laws. Right. The Ninth Circuit said there has to be more than minimal inference, but it doesn't have to be no ability to execute the laws. And it was hard for the parties to come up with an example where that had been overwhelmed. So the government argued that, well, we've had to move more federal forces in. We had to move 100 different people from different organizations. The state of Portland introduced a number of night logs of the police force in the nights leading up to this order, showing that there was quiet and no request for forces for numerous nights prior. So the argument back is that there's just, you know, at most there is Minimal interference. But once again we get down to the facts in that case and what's really going on.
- [19:06]
Benjamin Wittes
And did Judge Immerse discuss at all the significance if any of these being allegedly coordinated by a designated domestic terrorist organization? The reason I ask is that, you know, the president issued this executive order designating antifa, which is not obviously an organization, as a domestic terrorism organization, which he does not have the obvious authority to do in any sense other than that you have the authority to designate something a domestic terrorist organization. But now in your description they're sort of arguing that in court that this has some significance. And I'm curious how Judge Immergut responded to that.
- [20:04]
Lauren Voss
Yeah, so it actually didn't come up in that level of detail. It was used to say like here's the predicate decision, here's what's been going on. But most of the focus was on the fact that secretary had says actual order and what they say they're going to be doing is a small amount of troops doing federal property and federal mission protection. And they didn't really talk about those wider claims of war ravaged Portland, the terrorists coming out full force because they now seem to be saying that their mission is actually going to be much more narrow and just be protection of that ICE facility in a small number against protesters. So there really wasn't a conversation about what does this mean if domestic terrorists are involved.
- [21:00]
Benjamin Wittes
All right, so she says she's going to rule on the tro, I assume tonight or imminently. Is that, is that the status of things?
- [21:14]
Lauren Voss
Yeah, that is what she said said either tonight or by tomorrow. I will say she also did both in her questioning and in this and the remarks made by both sides get into a little bit of debate over Posse Comitatus and whether or not that applied here. And that I would say was particularly interesting because the government's argument now is that 12406 is not just a mobilization authority, it's also a mission authority and as such is an explicit exception to Posse Comitatus which is a little bit different. When they originally, originally in the, in the LA case, in the Newsom case, they argued, you know, a constitutional Article 2 authority. But then by the time they were in court and you know, by the time it came to the ninth Circuit, they seemed to be arguing this same thing, which is that 12406 allows them to deploy forces and allows them to do law enforcement. But they, you know, they make a couple other, you know, arguments which is, oh, we're not going to do law enforcement. So don't worry anyway. Right. Like, that's not what our mission is. It's the protection of these federal properties. They also say that, you know, posse Comitatus, criminal statute, no civil course of action. That's similar to what they've argued previously. Interestingly, in this case, the state of Oregon argued, okay, but we're also making an APA claim and you can try to get into the APA through a criminal statute. Statute. So we'll see what happens there. But there was an interesting discussion on PCA that I think is interesting because there seems to be a debate actually on what counts as law enforcement activity and how much, whether or not, you know, they're doing the federal protection mission that is law enforcement or not. And there was really some, you know, up in the air descriptions of activities both from what happened in the 9th Circuit in LA and what's happening here and whether or not that that would be law enforcement. And so we don't really have a good answer on the PCA piece and where that's going to go. But I just wanted to mention it in the context of the, you know, this new argument that 12, 406 is sufficient both as a mobilization authority and a mission authority. Right. And so they've kind of moved away from that constitutional argument.
- [23:38]
Benjamin Wittes
All right, Roger, you listened to this hearing as well. Do you have thoughts on it?
- [23:44]
Roger Parloff
Just a few. I, I totally agree with what Lauren said. I thought she was very skeptical. And I, I think it may be interesting because we may get, you know, the, the ninth Circuit standard here was something like colorable assessment of the facts and law within a range of honest judgment. And it sounded like she, she did not think that any of the things being said by the government fall within that range, which is quite a, quite a criticism on the, on the Posse Comitatus Act. I also agree with Lauren, but I think the thing there is that it might just not be ripe. They aren't even deployed yet. They're, they're being, they're in training and, and, you know, remember, Breyer waited until the initial hearing. He didn't rule on Posse Comatitis, and then he took a lot of evidence and then made a ruling. I don't think they're there yet, so it might just not be right.
- [24:48]
Benjamin Wittes
All right, let us move on to our weekly immigration roundup. And we're going to begin with a sort of an immigration case. A massive, I think it was, 166 page opinion out of Massachusetts from Judge Young, which has some of the most extraordinary rhetoric of Any district court opinion I have ever read. Eric, tell us a little bit about Judge Young's opinion in aaup.
- [25:28]
Roger Parloff
Did you want me to start on that, Eric, or.
- [25:30]
Benjamin Wittes
Oh, oh, sorry, Roger, you were going to get us started on that one.
- [25:37]
Roger Parloff
It certainly is an immigration opinion. And you know, there's two things in there. There's the ruling and there's how it gets, how it, how it expresses itself. Those are really separate things. Things. It's a very ambitious case. It's brought by the American association of University Professors and the Middle East Studies association. And basically they allege that there's been this ideological deportation policy executed by both the State Department and the Department of Homeland Security to deport and to remove people and to cancel visas of high profile people who have merely protested, participated in pro Palestinian protests. So it's a First Amendment viewpoint discrimination thing. And of course, neither of these organizations have been expelled. Their theory is that this is being done in order to suppress speech across the board. Protests across the board, and that their speech members, the members of these organizations, their speech has been chilled. And so it looks at all the cases we've been talking about individually, Mahmoud Khalil Yunseo Chung Badar Khan Suri Mohsen Madawi Rumesa Ozturk, and sees them sort of big picture. What's the policy here? And he held a nine day trial.
- [27:33]
Benjamin Wittes
So I want to stop you right there because if I'm Sam Alito, I don't need to hear more than I've already heard, which is you're aggregating a whole bunch of individual cases of people who are perfectly capable of litigating their own cases. And you're doing it under the auspices of MESA or aaup. And I know that trick and I also know how to get rid of it, which is to say something about individualized in injury and standing and stuff. And so my question is, before we get to the merits of this, how vulnerable is this to, you know, okay, that's all very nice, 161 pages or 166 pages of opinion, but there's no standing on the part of these organizations to raise this thing in the first place.
- [28:38]
Roger Parloff
So there will be a big issue about standing. And it's, and it gets into organizational standing and associational standing and which is not within my expertise. And it's also sufficiently arcane that if you don't want a grant standing, you can do it. But I also think they made within the boundaries of the existing law. You know, members of their associations testified about the work they were doing and why they stopped doing it when they saw what was happening. And so, and not just one. You know, it's a lot of evidence. I think it's plausible within the bounds of what the law used to be or was, you know, right up until this case was decided. So I don't, I don't, I think it's plausible. But you're right, that'll be a big issue. And so it's a, at times, the piece, the article, it's 161 pages and a lot of it is meticulous. I mean, a lot of it is informative and meticulous and new stuff, I mean, stuff I haven't seen before. And the conclusion is this court finds as fact and concludes as a matter of law that Secretaries Noem and Rubio and their several agents and subordinates acted in concert to misuse the sweeping powers of their respective offices to target non citizen pro Palestinians for deportation, primarily on account of their First Amendment protected political speech. They did so in order to strike fear into similarly situated non citizen pro Palestinian individuals, proactively curbing lawful pro Palestinian speech and intentionally denying such individuals, including the plaintiffs here, the freedom of speech that is their right. And so that's the theory. And, and, and there's a lot of strong specific evidence that showed that, you know, in internal discussions, the public officials, quote, consistently referred to campus protests related to Palestine as per se, pro Hamas. You know, things that, and he talks a lot about the wiggle words antisemitism. And it's never defined pro Hamas. And it's never defined some Hamas sympathizers. And it's never defined. And so these parts of the ruling are quite convincing, in my humble opinion. Then there are places where the rhetoric, I think, goes off the rails and undermines the seriousness with which his findings ought to be taken.
- [31:41]
Benjamin Wittes
And just to be clear, this is a Reagan appointee.
- [31:44]
Roger Parloff
It's a Reagan appointee. He's 85. William G. Young. I should have said that early, early on. District of Massachusetts. He says, though it was unnecessary to decide. At one point, he suggests that Trump, who, you know, we're talking, that we're not trying, the case is really against the secretaries and their subordinates. And, but he's saying that Trump, in approving this stuff, in ratifying this behavior, is violating his oath of office and the take care clause. And then to my mind, he implies that in, you know, in a more gracious era, he would have been impeached or prosecuted. It says, in the golden age of our democracy, this opinion might end here. After all, the facts prove that the president himself approves truly scandalous and unconstitutional suppression of free speech on the part of two of his most senior Cabinet secretaries. One would imagine that the corrective would follow as a matter of course from the appropriate authorities. Yet nothing will happen. The Department of Justice represents the president and the Congress is occupied with other weighty matters. And then the end of the decision from 148 until the end, he sort of despairs about whether any remedy is possible. If you were going to look at this in a charitable way, it might be sort of like, if you remember Judge Wilkinson's ruminations for the Fourth Circuit and I think, the Abrego Garcia case. But it's not really as classy as Wilkinson. He says the reason is the the rapidly the reason he doesn't know if a remedy is possible is the reason is the rapidly changing nature of the executive branch under Article 2 of our Constitution. And while he is properly not now a defendant in these proceedings, the nature of our president himself. And then he goes into that. I think I'll I'd like to hear what Eric thought about the rhetoric and anything else here.
- [34:08]
Benjamin Wittes
Yeah. So, Eric, first of all, what do you make of the standing question? Is the is the idea that there's going to be standing here going to hold up as this goes up on increasingly conservative appeals, or is this going to run into a buzzsaw? And number two, assuming that the opinion itself is bulletproof, what do you make of the rhetoric?
- [34:41]
Eric Columbus
First, I just want to note, just in the interest of full disclosure, I used to work for the plaintiffs council here, the Knight First Amendment Initiative, and I did some research, some background research that eventually made its way into this case, but I did not work on it at all. So in terms of standing, I think standing is notoriously malleable. It kind of remains to be seen in what higher courts have made of it. I also think, and one reason why it remains to be seen is that we don't know what the remedy is yet. And as the Supreme Court has emphasized, your standing depends upon the remedy you seek and obviously the remedy that is eventually given to you. And it's not clear what that remedy is going to be for reasons that Roger explained. In terms of the style, I agree that it is quite weird. It's written in the form of a letter to an anonymous correspondent, if you will, who sent a postcard to the judge in June that said in kind, like creepy handwriting, Trump has pardons and tanks. What do you have? And then the Judge wrote, Dear Mr. Or Ms. Anonymous, alone I have nothing but my sense of duty. Together we, the people of the United States, you and me, have our magnificent Constitution. Here's how that works out in a specific case. And it's literally at the top of the opinion. And then the rest of it is, then it starts below that with a case caption and 161 pages of analysis. And then at the very end there is like a conclusion to the letter writer and say basically like, you know, this is how I came out. And, and then literally it says the next time you're in Boston, stop into the courthouse and watch your fellow citizens decide the case.
- [36:45]
Benjamin Wittes
And it's sufficient to say that's not a normal way of writing a judicial opinion.
- [36:50]
Eric Columbus
Yes. And the phrase YOLO comes to mind when you're at the end of a distinguished legal career and you're not particularly happy about what's going on. You want to maybe write something that will get read more often than the typical district court opinion. He goes, he's multiple aside, some of which Roger has mentioned, but he has a footnote where he talks about the birthright citizen, the moves to cancel birthright citizenship by Trump and how that's unconstitutional. He has, I think, I think it's like four pages on why the use of masks by ICE agents is a terrible thing. And you know, none of this is necessary for the case and most judges would accordingly leave it out. But I think Judge Young may be kind of despairing of what's coming. But also, as Roger said, a lot of it is very meticulous and there's a, a huge section, I think from pages 15 to 93 or so that discussed in great detail summarizing the testimony of this two week trial and explaining how the administration went about deciding to go after each of these pro Palestinian non citizens and mark them for, for deportation. And it goes into great length in that and it's really valuable, it will be valuable for the historical record down the road to have that. It's also I think quite interesting that, I mean these, this is ice. The administration could have in theory said, you know, screw you guys, we're not going to play ball this here and we're not going to send our, our agents to testify. And that under normal circumstances would not have ended well for them. But we have seen in other cases the administration doing things that are quite unusual. But instead it was a fairly normally handled case by the administration in that ICE agents, several of them, I don't know how many, testified and at Great length. And we had a very long a trial about this which led to lots of information coming out and both testimony and documents that had not been available for before. So it was a very interesting case.
- [39:16]
Benjamin Wittes
All right, so we have a new suit or a somewhat new suit on federal grant conditioning on immigration enforcement. This is State of Illinois versus Nomenclature. Eric, tell us about it. What's, what's going on in this case?
- [39:39]
Eric Columbus
This was a case where DHS conditioned some disaster and emergency relief and management grants on states cooperating with federal immigration enforcement in a variety of ways. And it followed a presidential executive order intended to prevent money from flowing to so called sanctuary jurisdictions. Twenty blue states sued in federal court in Rhode island. And the cases before Judge William Smith, an appointee of George W. Bush. And among other things, the states argued.
- [40:13]
Benjamin Wittes
This was, who is not to be confused with William Jones, an appointee of Ronald Reagan, William Young. Young, sorry, Young Smith, yes. William. It's very confusing.
- [40:27]
Eric Columbus
Five letter, monosyllabic, Anglo Saxon names, among other things they argued was arbitrary and capricious agency action and also that it was unconstitutional under the spending clause because it was coercive and ambiguous and not reasonably related to the purpose of the grants. And you may recall the spending clause analysis from the Obamacare case in 2012, I think, where the Supreme Court struck down the requirement that states expand their Medicaid programs in exchange for 90% funding from the federal government. And the court's reasoning was that it was coercive to the states to basically say, you must do this or else you will lose this tremendous amount of money. So DHS had some threshold arguments that said, look, you know, we've actually decided not to enforce this for many of the grants. And the court said, well, you know, you're doing that only for FY 2025 and you're, you're still asserting your ability to do this, so it's not moot. So DHS said, okay, okay, fine, but it's, but it's not right because we have yet to publish our notice of funding opportunities for future years. The court was like, come on, your grant announcements have these terms. It's obvious what you're going to do. DHS also tried to channel this into the Court of Federal Claims, as we've seen in some other cases. And the court said, well, that we've seen that in cases, recent cases involving grant terminations and damages claims, not cases involving conditions for future fundings. The court then went on to the merits and concluded that this was arbitrary and capricious because it was very much of a blunderbuss approach by dhs. They didn't consider whether specific statutes allowed it at all. They didn't consider competing policy concerns. They just noticed, oh, it's all dhs. And DHS is involved with immigration enforcement. Therefore your FEMA grants, even though they have got nothing to do with immigration, can validly be conditioned on your playing ball with us on immigration. Then the court went to the spending clause analysis and concluded that one, it's coercive because there are massive amounts of money involved, like 22 billion, and secondly, it's ambiguous and that it was not really clear what is being asked of the states of what it means, even though some requirements were listed, what does it mean for them to comply in immigration enforcement? And third, that it wasn't reasonably related to the funding program at issue. These were immigration, this is a FEMA emergency grants program and you're importing conditions relating to immigration enforcement. And the Supreme Court said in a case called South Dakota v. Dole that you have to there has to be a reasonable match between what the grant program is about and the condition you're trying to apply in that case. In South Dakota v. Dole, the court upheld a requirement that you could condition certain federal highway funds on states raising their drinking age to 21 because of the close nexus between driving on highways and injuries caused by underage drunk drivers. So that the court's writing this down, I think it's probably a bulletproof opinion. It's not even clear to me that the government will appeal at this point.
- [44:33]
Lauren Voss
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- [45:13]
Eric Columbus
AI is transforming customer service. It's real and it works. And with Fin, we've built the number one AI agent for customer service. We're seeing lots of cases where it's solving up to 90% of real queries for real businesses. This includes the real world. Complex stuff like issuing a refund or canceling an order order. And we also see it when Finn goes up against competitors. It's top of all the performance benchmarks, top of the G2 leaderboard and if.
- [45:37]
Benjamin Wittes
You'Re not happy, we'll refund you up.
- [45:38]
Eric Columbus
To a million dollars, which I think says it all.
- [45:40]
Lauren Voss
Check it out for yourself at fin AI.
- [45:43]
Roger Parloff
Did I talk too much?
- [45:44]
Benjamin Wittes
Can't I just let it go?
- [45:46]
Roger Parloff
Thank you so much.
- [45:52]
Benjamin Wittes
Take a breath, you're not alone. Let's talk about what's going on.
- [45:56]
Roger Parloff
Counseling helps you sort through the noise with qualified professionals and online therapy makes it convenient. See if it's for you. Visit betterhelp.com randompodcast for 10% off your.
- [46:08]
Benjamin Wittes
First month of online therapy and let life feel better. I know no one starts a business for the joy of calculating tax withholdings. I have been having a tax withholding nightmare with my poor little substack recently and I wish I had known about Gusto because it takes the stress out of payroll, benefits and HR so that you can focus on why you started your business in the first place, which is writing the substack. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere. Unlimited payroll runs for one monthly price. No hidden fees, no surprises. It's quick and it's simple to switch to Gusto. Just transfer your existing data to get up and running fast. Plus, don't pay a cent until you run your first payroll. Try Gusto today at gusto.com lawfair and get three months free when you run your first payroll. That's three months of free payroll at gusto.com lawfair one more time gusto.com lawfare were most of us pretty numb to it now, but wow, has this been a wild ride. AI is coming for your jobs or it's not. Geopolitical changes are disrupting century old alliances. Or maybe they're not and the market is reacting in ways we've never seen before. Or maybe it's doing just fine. It's no wonder that most of us are born buckling down, saving and just looking for ways to protect our futures. And hey, one sure way to do that is life insurance. It's old fashioned, I know, but gosh, you've probably underinsured. I hate to say it, but it's true. You're overpaying and you're underprotected, especially if your policy is through your job. That's why I recommend finding a new life insurance policy with Selectquote for over 40 years, Selectquote has been one of the most trusted brokers in insurance, helping More than 2 million Americans secure over $700 billion in coverage. Their mission is simple, to find you the right insurance policy for your unique needs. They shop, you save. Unlike the one size fits all life insurance companies, their licensed agents work for you in as little as 15 minutes. They'll compare policies from top rated carriers to find you the best fit for your health and budget. And it's free. Don't have a medical exam? No problem. They partner with providers offering same day coverage for up to $2 million without needing to visit your doctor. Got high blood pressure, diabetes or heart disease? They have partners with policies designed for many pre existing health conditions so you get the protection you deserve. Head to selectquote.com and a licensed insurance agent will call you right away with the right policy for your life and your budget. Get the right life insurance for you for less and save more than 50%@SelectQuote.com Lawfare you can save more than 50% on term life insurance@SelectQuote.com Lawfare today to get started, that's SelectQuote.com Lawfare so just another example of assuming, Eric, that you're right, of when the lower courts do their jobs really well, you get compliance and no appeal. And, and then we forget about the cases. And so we tend to see the ones go up where there's some degree of vulnerability in the lower court opinions and we forget and sort of pocket the gains of when the courts do their job well. All right, Roger, let's turn to.
- [51:03]
Roger Parloff
Some.
- [51:04]
Benjamin Wittes
Of the individual immigration matters. We finally have a US Citizen suing over wrongful immigration detention. Roger, just for those who don't know, how often should US Citizens be detained in immigration detention? It's not a trick question.
- [51:28]
Roger Parloff
Well, this is, it's actually about stops and, and I guess if they're only stopped for 20 minutes, Kavanaugh doesn't really matter. It doesn't really care.
- [51:40]
Benjamin Wittes
But this person was not stopped for 20 minutes, right?
- [51:44]
Roger Parloff
Well, one of them was 20 minutes, one of them was a little over an hour. So I don't know if this is going to pass muster, but it is a citizen and it happened twice within three weeks. And this is a complaint. So these are allegations. It's not very far along, but the allegations are interesting and that's why we're going to pay attention to it. This is Leonardo Garcia Venegas, or Venegas. He's a construction worker in the Mobile, Alabama area. This is in the Southern District of Alabama. In front of Jeffrey Beaverstock is the judge. He was born in the U.S. mexican heritage. And he's not a day laborer. He works for a, you know, a particular company that works on private, big, private construction sites that are usually owned by, you know, big companies like Lennar or is it Dr. Horton or something like that. Big, big companies. And so there are raids going on on these sites. And as he describes it, you know, armed men in camouflage with masks run past the white and black workers and grab him and the other Latino workers. And he shows them his real ID, which is supposed to, you know, now show your U.S. citizenship. And they say, well, it's fake, or we think it's fake or it's not. And they take him off site and, and there's some manhandling, there's some. He alleges assault, and it's not a very polite procedure. And, and, you know, it can be 12 blocks away. And then they check to see if his Social Security number is real. And if it is, they, they do release him. So. And I understand, I've seen on the Internet some people are now calling these Kavanaugh stops because he sort of wrote his concurrence in the Vasquez Perdomo case saying, you know, it happens. So I don't know. He's suing.
- [54:20]
Lauren Voss
The.
- [54:22]
Roger Parloff
The attorney is making a big point of the fact that it's private property and there's no warrant. I sort of don't know if that. If he has standing to raise that, because it's not his property. And I don't think Lennar is going to go up to the Trump administration and say, you were on our property without. I don't think Lennar is going to make a stink. So I don't know if he has. I don't think he has standing to raise that. I, I might be wrong. I might be wrong. I shouldn't. I should know. Fine, but that'll be an issue.
- [54:56]
Benjamin Wittes
And certainly the seat. It's not just a stop. He's moved 12 blocks. He's seized. Right.
- [55:07]
Roger Parloff
I may be like, I think when.
- [55:09]
Benjamin Wittes
You'Re talking about a Terry stop, which is where this idea of a stop comes from. It's a brief, momentary stop on the street with a few questions and maybe a, you know, a pat down. You're not talking about being put in a van and then moved someplace and then have to be released. It's a stop, not an arrest. And I think it is something very mischievous about conflating the two.
- [55:41]
Roger Parloff
Well, maybe, maybe that will be a strong point for him. I just don't know the The Terry stop definitions.
- [55:53]
Eric Columbus
But I'm sorry, if I could just jump in.
- [55:55]
Benjamin Wittes
What.
- [55:55]
Eric Columbus
That was. Ben, what you said makes a lot of sense. That was also true, however, in the. The case that went up to the.
- [56:02]
Roger Parloff
Supreme Court and Vasquez Perdomo case.
- [56:05]
Benjamin Wittes
Yeah.
- [56:05]
Eric Columbus
And that.
- [56:05]
Benjamin Wittes
Right, but the. The difference in that case is that Kavanaugh is writing only for himself and nobody else is commenting on it. Right. And so you could imagine that Kavanaugh is saying something that he has exactly one vote for. Although. But I don't understand how the government defends, under Terry or under the interim order in Vasquez Predomo, a case where they're, you know, shuffling people away and holding them in detention for an hour. You know, that doesn't sound like a Terry stop to me.
- [56:46]
Roger Parloff
They're holding them at the vehicle while they. At the police vehicle while they check.
- [56:53]
Benjamin Wittes
His Social Security and after moving him 12 blocks.
- [56:56]
Roger Parloff
Yeah, I mean, it required.
- [56:58]
Benjamin Wittes
That's more than. I don't know if it's an arrest, but it's more than a stop. I don't know. I mean, it's been a while since I've read Terry v. Ohio, but. But it. It doesn't seem to me like that's a. I. I know how Kavanaugh described it, but it doesn't seem to me like a brief kind of momentary stop and check or stop and frisk.
- [57:23]
Roger Parloff
Yeah. Another challenge is that he's seeking an injunction. And of course, last time, of course, it was just Kavanaugh, but there was a stay. And what Kavanaugh said was that they hadn't met the Lyons test. That. That. How do we know, okay. It's happened to him twice. How do we know it'll happen a third time? And.
- [57:47]
Benjamin Wittes
Right.
- [57:48]
Roger Parloff
Yeah.
- [57:48]
Benjamin Wittes
I mean, I would just say we don't ask that question in the First Amendment context. Yeah, right. In the First Amendment context, the. The chill is itself an injury. And I think once you've been arrested or detained or stopped twice for being Hispanic in a zone where it's apparently lawful to be white or black, but not to be Mexican American, I. There's got to be some point at which a presumption attaches that you're. You're suffering a risk by dint of. You're suffering an injury by dint of the risk.
- [58:29]
Roger Parloff
But I think one of the Vasquez Perdomo plaintiffs had been stopped twice also. And I don't know if Kavanaugh knew that, but.
- [58:39]
Benjamin Wittes
Well, he would have known it if he'd bothered to. Bothered to read the record or the.
- [58:45]
Eric Columbus
Or the dissents or the descent.
- [58:48]
Benjamin Wittes
But I suspect he has even less regard for the dissent than he does for the record. That's just a guess. Okay. So Roger, we also have an update in the Abrego Garcia case, which I guess we're now supposed to call the Abrego case, but I'm going to continue calling the Abrego Garcia case because I'm afraid that people won't know what I mean if I don't. The. This is. An immigration judge has refused to reopen his withholding of deportation case. I assume that is good news for him, right?
- [59:37]
Roger Parloff
No, no. He was trying to reopen it in order to make an asylum claim. And, and we have not seen. At least I have not seen. I don't think we have seen the ruling. The. It's these asylum, these immigration things are supposed to be confidential unless the alien releases them. And he did not. The only reason that we know about it at all is that Department of Homeland Security violated that privilege and, and issued a tweet that gave its version of what happened. So I, I don't want to comment too much about what the theory was, but it seemed to be that one aspect was that if for third party removals it's really up to. It's a different procedure that's within the dhs. You don't go to the immigration court. Another problem is that the, the threat of removal is not concrete enough here. There's been talk of him going to Uganda or to Eswatini. Eswatini is. I'm. I'm sure I'm not pronouncing it correctly. It's the former Swaziland. It's. But apparently it's not. There is no order of removal to these either place. And so the immigration judge won't take it seriously. Which raises the question of then why are you detaining him? Because he's not detained in the criminal case anymore. And if removal is not imminent, that'll, that'll be an issue. Anyway, this will get hashed out. There's an October 6th, that's Monday hearing in before Judge Sinis in the second habeas case or the second case, which is a habeas second civil case. He's now detained in Moshannon. He's been moved from Farmville. So hopefully we'll, we'll learn more about it. His lawyers are trying to get discovery. His. The government is trying to avoid it. Government is also claiming that, you know, trying to get in a stay because of the shutdown. The Government. He has responded that no, that would violate the habeas. It would be amount to suspension of habeas corpus, among other things. There's also though a big development in the criminal case that just happened and it's a 16 page ruling that I haven't read, but we have.
- [62:47]
Benjamin Wittes
This is to give you an idea of what an awesome audience we have. Andrew Steele of the Greek Chorus is currently reading the Crenshaw opinion in Abrego Garcia for us, having alerted me that it exists while you were talking. And he will come on as soon as he is done eyeballing it to give us a sense of what, what's going on in, in that, in that decision. This is in the criminal case. Yeah, in the.
- [63:26]
Roger Parloff
I'm sorry, go ahead.
- [63:27]
Benjamin Wittes
In the meantime, Roger, talk to us about the mandatory detention cases. We've got some action on on summary judge, on, on on class certification and summary judgment out of the District of Washington.
- [63:48]
Roger Parloff
Yeah. So remember, we've got all these cases, probably more than 30 at this point around the country. The On July 8, the government changed its policy regarding interpreting two different detention statutes which are honestly not crystal clear, but they've been interpreted in a certain way for 29 years and the government decided to change it. There's one provision, 1225-B2 8 USC 1225, that says for an applicant for admission or an alien seeking admission, there's mandatory detention. And that's been interpreted to mean, you know, somebody apprehended at the border. And then 1226 A says if you're waiting awaiting for a pending, if you're waiting for a decision on removal, you're eligible for parole or a bond hearing. A bond hearing, not parole. But and the change is that almost everybody, even if you're, you've been in the country for 10 years, even if you're in Kansas, even if you've been here 30 years there, if you aren't, if you didn't go through inspection, they're treating you as an applicant for admission and there's no end. Detention is mandatory. So all these cases, about 30, almost all have gone against the government. About three have gone for the government. The first class action was decided this week, but it's in the Western District of Washington, Tacoma, but it only applies to that district if that it really only applies to the Northwest ICE Processing center and the Tacoma Tacoma Immigration Court. It rules against the government and it has to be a declaratory judgment because there is a jurisdiction stripping clause that prevents injunctive relief in class actions. And we're going to have another one of Those in Massachusetts, October 14, a hearing on that. And she just ruled for the individual, granted an injunction for the individual in that case. But what she does about the class will come up October 14th.
- [66:26]
Benjamin Wittes
All right. Meanwhile, esteemed audience member Andrew Steele has read the Crenshaw opinion in in Abrego and what we got.
- [66:41]
Eric Columbus
Andrew, Too kind, Ben.
- [66:43]
Benjamin Wittes
Thanks for having me on and glad to chime in. I want to credit Chris Geidner, law dork on substack, for his notification that alerted me to this, which was this was within the past 20 minutes or something. So it's a 16 page memorandum opinion on defendant Abrego's motion to dismiss for vindictive and selective prosecution. The government obviously opposed and the court walked through this, the different grounds that were raised. I'm not going to really go into the different cases that were analyzed and distinguished because I haven't looked at those. But the background, of course, is Abrego living in the United States for a number of years and the traffic stop heard in Tennessee in November, November 30, 2022, this was by the Tennessee Highway Patrol and they didn't even issue him a ticket and sent him on his way. But they made a referral to Homeland Security investigations the next day or just around then, which didn't follow up on the investigation. And until sort of 2025, it seemed like that case had had effectively gone away. But then it turns to the deportation of Abrego under the Alien Enemies act to seek out and his his exercise of his his sort of rights to challenge that. Then the very same day that Kristi Ngo made a statement that Abrego was was arrested after his release, that he's a Christy Noem stated that He's a known Ms. 13, gang member, trafficker, domestic abuser. And the same day Todd Blanch stated that the government had started investigating Abrego after a judge in Maryland who is Judge Sinis, questioned the government's decision. So this is sort of the background on the government's actions, first deportation and then in June after his release, opening a criminal investigation that led to to his indictments. If I recall correctly that the local head of the criminal division in the middle district of Tennessee resigned. That doesn't come up in the opinion, but I guess we'll get to whether it might come up in discovery. So then the court sort of analyzes all of that context of what the judge, Wesley Crenshaw, breaks down as actual vindictiveness versus implied vindictiveness. And I think the actual vindictiveness is what he sort of locates in those statements from, from Noem and from Blanche and basically saying that the deputy Attorney General statement sort of raised the suspicion. Yeah. Could directly establish the motivations for Abrego's criminal charges stemming from his exercise of his constitutional and statutory right to bring suit against the executive of defendants. And that that was pretextual rather than a genuine desire to prosecute him. And then basically along the same lines, there's a concept of presumptive vindictiveness where sort of like a reasonable third person viewer would infer it from exactly the.
- [70:14]
Situation and so does it conclude. I take it it doesn't throw the case out. It grants discovery on the part.
- [70:22]
Lauren Voss
That's exactly right. Yes.
- [70:25]
Benjamin Wittes
So that's where. That's where things stand. The, the conclusion and is that Abrego has carried his burden of demonstrating some evidence, the prosecution against him might be vindictive, and that without further discovery, the court cannot move forward so the government could produce evidence showing legitimate reasons. I'm interested to see how the, the Justice Department officials resignation plays into that discovery or whether it would involve like, depositions or discovery from, from Todd Blanche himself. So, yeah, that's, that's where it's at. It seems like it's a win for Abrego alongside what might not have been in the other decision today, and a.
- [71:08]
Win for Jim Comey as well.
- [71:10]
Yes, indeed.
- [71:11]
You know, these motions very rarely proceed past the, the get past this stage. And if you're contemplating filing one, having a judge in the middle district of Tennessee say Grant 1 or Grant Discovery in one based on the behavior of Todd Blanche, that's a, you know, going to be a, a boon to the people who are writing another motion and they're going to be reading that very carefully. Thank you, Andrew.
- [71:52]
Eric Columbus
Got it.
- [71:54]
Benjamin Wittes
All right, we got a few more cases to go through. It's time to play our favorite weekly game show, who Wants to Dismantle a federal Agency. And our contestant this week is Eric Columbus, who is going to be firing lots of people using the shutdown as an excuse. He's going to be riffing them in the parlance of our time. And he's got a problem, which is that the American Federation of Government Employees has sued to stop him or stop the administration from shutdown oriented rifts. I got the same question I've got about all these cases about this, which is standing. You know, it's a, this is a union suing to stop something that hasn't happened yet and that we don't know if it's going to happen. Why should I take this seriously at this point, Eric?
- [73:08]
Eric Columbus
So the union is the American Federation of Government Employees, which as you might guess from the G in their name has folks in the federal government who may be affected by a reduction in force. And at this point it's they, they filed a complaint, I think it was on Tuesday. And they have not done anything else yet. They have not asked for tro, they have not asked for a preliminary injunction in I think in large part because there have not been any actual reductions in force yet related to the shutdown. What has happened is that OMB sent a memo to agencies in the waning days of the fiscal year by which I mean I think either Monday or Tuesday, instructing them to consider reductions in force for employees in programs that lack funding due to the shutdown and that are, quote, not consistent with the President's priorities. And what the plaintiffs are arguing is that the work necessary to do the reduction in force process, which would be conducted by people who are not themselves rift is not covered by any exceptions in the Anti Deficiency act with regard to what you can do when there's a lapse in appropriations. So to back up, the Anti Deficiency act is a statute, a long standing statute that says that more or less you can't spend money that Congress has not appropriated. And interpretation of that statute is why we have government shutdowns. The Office of Legal Counsel has said you can in fact do work that is necessarily implied by other statutes. For example, Social Security funding is not done pursuant to yearly congressional appropriations. It's done out of the Social Security fund which it comes from money that we have paid into it and it is legally allowed to happen and it mandated to happen regardless of whether there is a lapse in appropriations. So then that then raises the question of like well these checks don't go out by themselves. There are human beings who are responsible for the bureaucratic tasks that require that are involved in that process. And therefore it is a necessary implication of all the other statutes that say Social Security checks are supposed to go out the door. It's a necessary implication of that that you have to have people, humans involved in that process. So what the government is saying basically is that this the work needs to be done for to implement a reduction in force is fairly implied by other statutes. This is really kind of terror incognita in that it has not come up in during previous shutdowns. As we have seen, this administration is eager to take any opportunity to reduce the federal workforce. Despite the president being the same as the president during the last long shutdown in, I believe, 2019. His rhetoric is very different than it was then about the value of federal workers whose jobs are being threatened. And that's, I think many people would say, largely the effect of the fact that he has given such prominent roles to people like Russell Vogt, who is the head of the Office of Management Budget and who has previously said in 2023, as a private citizen, but as someone who's very much in the Trump circle, that the goal should be to, quote, traumatize federal workers as much as possible. It's an interesting symmetry between what the government is trying to do to undocumented immigrants as to what they're trying to do with federal workers trying to get people to leave by. By attrition. Either leave the country or leave the government. Nick Bednar, who is a professor at the University of Minnesota and a, if you will, kind of a hero of the republic over the past year. He's a professor who studies public.
- [78:00]
Benjamin Wittes
The.
- [78:00]
Eric Columbus
Role and the law of public employees, has written two pieces for Lawfare just this week on reductions in forest during shutdowns. And I can't improve on his analysis. He concludes that it's very difficult to predict what might happen, but that the government might well prevail on the theory that the agencies need to prepare for the possibility of what life looks like when the government reopens. If the government reopens at a much lower level of appropriations than what has previously been appropriated in that case, then these rifts could be considered to be necessarily implied by other statutes. He points out, however, that the procedurally riffs are very hard to get right and that it is quite possible that the administration will mess it up in some way and then maybe confronted with the fact that when appropriations are resume that employees who have been riffed get sent to the front of the line in terms of hiring and they may need to rehire some people who they had riffed under this process.
- [79:11]
Benjamin Wittes
All right. One federal employee who had a good week was Lisa Cook of the Fed, who got a. I don't know, is it proper to call it a stay of execution from the Supreme Court, which they issue, you know, pretty rarely her dismissal. They have now granted cert in her challenge to her dismissal for alleged mortgage fraud. And they have done it with.
- [79:48]
Roger Parloff
Agreed.
- [79:49]
Benjamin Wittes
To hear the case, I believe in January and said she can stay on while they do it. This is the opposite of what they usually do, which is to say, you know, we're not going to hear something and the administration can do whatever it wants in the interim. So am I right Eric, to look at this as a pretty good sign that there are five votes in on the Supreme Court for the idea that Bill Pulte saying you committed mortgage fraud is not cause for dismissal of a Fed Governor.
- [80:28]
Lauren Voss
I.
- [80:30]
Eric Columbus
Would say it's more likely than not. I would not bet any sums of money that I would be reserving for my kids college education or, or, or for a mortgage or even for a.
- [80:42]
Benjamin Wittes
Decent sized we're going to keep mortgages out of this.
- [80:45]
Eric Columbus
Well yeah.
- [80:47]
Benjamin Wittes
Don'T go there with the mortgage. That's a fair point because you bet your mortgage on it then you'll be accused of mortgage fraud by the Federal Housing Administration.
- [80:56]
Eric Columbus
Yes, that's very fair point. So this is my fourth consecutive week discussing the Lisa Cook case and I, I, I enjoy it and I won't go rehash it again as I did the first three times. But this is the area where the Supreme Court has attempted to carve out some protections for the Fed from the its general soon to be formalized rule that the President can fire basically anyone even if they have for cause protection that those statutes are invalid and there will be an overruling of the Humphreys executor case and the legislation in which this is the sorry the litigation which this has come up is a case called Slaughter which will be argued in which the Supreme Court has basically said in every other in all these cases they've let Trump fire the person temporarily pending resolution of the case in the merits. The Slaughter case is going to be argued in December and I would bet my kids college education on the fact that they're going to overturn Humphrey's executor and allow the Supreme Court allow Trump rather to fire to tear up for cause protections for presidential appointees. But in the Slaughter, in their brief order lifting the stay in the Slaughter case they had dicta saying oh well but this doesn't apply to the Fed because the Fed is special for reasons that no one really nothing to do.
- [82:43]
Benjamin Wittes
With its old and it has to do with the Nash first bank of the United States. And, and by the way it would really suck if the President could fire Fed governors. Right.
- [82:55]
Eric Columbus
Basically basically that. So then Trump said well okay fine I will, I guess I'd have to fire her for cause.
- [83:05]
Benjamin Wittes
Sorry by the way you guys are all fired for cause. It's, it's you know, mortgage fraud.
- [83:10]
Eric Columbus
It's the only one. So Trump said fine, you Want me to fire you? Say I can only fire her for cause. Fine, I'm firing her for cause. She's committed mortgage fraud. And it has since emerged that, you know, quite likely she has not committed mortgage fraud. You'd be shocked to realize that the Trump administration may be playing a little bit fast and loose to the facts here. And basically what's going to happen where the Supreme Court then said is that just this week after it was all briefed, we're going to hear this case, the oral argument in January. So this is probably a good sign for Lisa Cook. However, Steve Vladek has pointed out that in the there have been only like four cases where the Supreme Court has agreed, has moved, suffering from the shadow docket, or let me rephrase it, has decided to hold oral argument on, on the shadow document, on occasion, the shadow docket. And in all four of those cases, they wound up overturning the lowercase, the lower court's opinion, I believe. So it's, it's, you know, until they end, of course. So it's, it's still anybody's guess as as to what might happen. This is probably, this is a good sign for Lisa Cook, but there's still a lot of, a lot. We're in, you know, maybe the fifth inning. There's a lot of ball game left to be played.
- [84:45]
Benjamin Wittes
But at least we don't have to talk about Lisa Cook next week, right?
- [84:49]
Eric Columbus
Yes. I'll be struggling to find something to talk about, but luckily there have been, I think, literally four cases, one of which we've discussed already, that would be law, fair, live worthy, that have been decided since we began talking at 4 o'.
- [85:05]
Benjamin Wittes
Clock. All right, finally, Roger, it's been a banner week for the politicization of the Justice Department. We've got a bunch of stuff. Let's tick through them. We have new grand juries and guess where in Fort Pierce, Florida. What do we know about that? How, what crimes have, have, you know, been committed recently in Fort Pierce that you would want a grand jury there?
- [85:37]
Roger Parloff
So we don't know a whole lot about this. And so, but I just wanted to put it on the radar screen because Mike Davis put it on the radar street screen. He's a conservative activist who's very well placed for things going on in the Trump administration normally. And he broke, I think, the news that the Southern District of Florida U.S. attorney had opened two new grand juries, one in Fort Pierce and one in Fort Lauderdale. And the very fact that Mike Davis was tweeting that as something important suggested that this might have something to do with either the Mar A Lago investigation or, or the special Counsel's team or. But we, we really have Z. I have zero information on that. I just wanted to put it on the screen.
- [86:42]
Benjamin Wittes
Yeah. I will say it almost certainly means something and it almost certainly means something bad. That's I think all we can say about it. Meanwhile, speaking of bad things, we have an ongoing bloodletting among prosecutors in the Eastern District of Virginia. I think we've lost three so far, including Jim Comey's son in law, but there it may be four. What do we know about who they are? Roger?
- [87:18]
Roger Parloff
So the new ones that I've learned, of course Eric Siebert was pushed out or whatever happened there. The U.S. attorney.
- [87:27]
Benjamin Wittes
Right. I'm, I don't count political people, but I'm talking about the career people.
- [87:32]
Roger Parloff
Okay. This week we learned of Maya Song, who was Sievert's top deputy and also ye, I think Wednesday, Michael Ben Arie.
- [87:48]
Benjamin Wittes
Both of whom I believe served under Lisa Monaco in the Deputy Attorney General's office. Is that right?
- [87:55]
Roger Parloff
Certainly. I think that's true of Michael Ben. Maybe both.
- [88:00]
Benjamin Wittes
I think Maya did as well. Although don't hold me to that. And neither of them, to your knowledge had anything to do with the non pros decision that was then overturned with respect to Comey? Right. Well, I'm involved in the case.
- [88:25]
Roger Parloff
I one, you know, right wing influencer apparently said so online and, but I, I don't know that, that, I don't know that that makes it true. There was also, there were, I think there was right wing influencer activity relating to the Lisa, Lisa Monaco connection. So. But he was the top national security official in the office.
- [89:01]
Benjamin Wittes
Right. We don't want national security security prosecutors in the Eastern District of Virginia. That's. And he's know what they can get up to.
- [89:10]
Roger Parloff
Yeah, he's the lead prosecutor on a case that is set for December and it's a big case. It's the alleged plotter of the terror attack in Afghanistan that killed 13American servicemen during the withdrawal and 170 Afghans, Mohammed Sharafoula. So that cannot be a good thing for the office to lose the top guy on that case right at the moment.
- [89:48]
Lauren Voss
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.com store SourceFT to read more and save 40% on a digital FT subscription.
- [90:31]
Benjamin Wittes
Did you see the game last night?
- [90:33]
Roger Parloff
Of course you did.
- [90:34]
Benjamin Wittes
Because you used Instacart to do your grocery restock. Plus you got snacks for the game, all without missing a single play. And that's on multitasking.
- [90:42]
So we're not saying that Instacart is a hack for game day, but it might be the ultimate play this football season.
- [90:48]
Roger Parloff
Enjoy $0 delivery fees on your first three orders.
- [90:51]
Benjamin Wittes
Service fees apply for three orders in 14 days.
- [90:53]
Excludes restaurants.
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Instacart.
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Roger Parloff
We're here.
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Benjamin Wittes
What makes a great pair of glasses at Warby Parker? It's all the invisible extras without the extra cost. Their designer quality frames start at $95 including prescription lenses plus scratch resistant, smudge.
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Lauren Voss
Resistant and anti reflective coatings and UV.
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Benjamin Wittes
Protection and free adjustments for life. To find your next pair of glasses, sunglasses or contact lenses or to find.
- [91:21]
Lauren Voss
The Warby Parker store nearest you, head.
- [91:23]
Benjamin Wittes
Over to warbyparker.com that's warbyparker.com all right. Meanwhile, down in the 11th Circuit in the blast for the from the past department there is our mandamus petitions seeking the release of volume two of the Jack Smith report. Remember all that. Volume two is the volume that deals with the classified documents case. Roger, am I wrong to be exceedingly pessimistic about the likelihood of success of this case?
- [92:05]
Roger Parloff
Well, it depends how you measure success. I think there's some interesting things here. So yeah, two nonprofits, the American Oversight Group and the Knight foundation have been trying to lift Judge Cannon's order from January, I think it's January 21st of this year, indefinitely keeping that entire report under wraps. What happened was, and you may remember she was a, she regards herself as sort of a stickler for Southern District of Florida local rules. And there is a Southern District of Florida local rule that says you're supposed to rule rule on motions within 90 days. And if you don't, the, the movement is supposed to make file a notice to remind you to move to, to rule. And so each of These people waited 90 days. Nothing happened. They filed their notices and then another 90 days passed. 180 days with no ruling, no denial. And I just have to ask, you know, what non political reason would there be to just let it sit there? I mean how is that not an act of political loyalty? And I, I You know, we remarked before that there were things about the way she handled things that we thought were odd. And maybe as a result, a lot of conservative professors came to her defense and said, oh no, she's fine judges, we're just biased. How do you explain this? What is that? Other than just delaying this as long as possible, what I think will happen, obviously now that there is a mandamus, she'll rule, she'll deny it and that will be appealed, but she will have delayed the whole process 180 days now down the line, you know, as long it's up to Pam Bondi, I think, whether to release it. Unless you, I don't see how, I don't know if a Freedom of Information act could get around the fact that it's normally, it's up to her. She has discretion. So it's not coming, I don't think it's coming out during the Trump administration, but I still think it's an interesting thing that happened here.
- [94:52]
Benjamin Wittes
Yeah, I, I, look, I mean, I, the Knight Institute folks, I back, I want to say like nine months ago at the, when they were contemplating this, I, I actually consulted a bit with them about it and, and I think it's a completely righteous case and it is outrageous that we have a president who handled classified information in this fashion and has managed to bury it with the assistance of a federal judge. I mean, it's very, it's really, really upsetting. And I, and you know, and is now gonna supervise the indictment of John Bolton over what will surely be less outrageous handling of classified information. And so, you know, it's, it's a, it's a grotesque thing. And I, I really wish the petitioners well on this. I wish I were more optimistic about the likelihood of success. But a very righteous case. All right, two more cases to get through. Lindsey Halligan has not yet been disqualified as U.S. attorney in the Eastern District of Virginia, but the U.S. attorney for Nevada has been and that brings, I think, to two After Alina Haba in New Jersey, the running count of U.S. attorney disqualified qualifications. What do we know, Roger, about what happened in the great state of Nevada? Wait, you need to unmute yourself.
- [96:58]
Roger Parloff
Not enough is the answer. I don't know enough. I, I, this is one that sort of escaped me. I, I do assume it's another alien Haba analysis. And I think we have another case brewing against the Los Angeles US Attorney Bill as Saleh but, and you remember James, took us through the very rather tortured analysis of what happens to US Attorneys and what should Happen and so on. One, but I don't have much. I don't, I don't have that one.
- [97:38]
Benjamin Wittes
All right, finally we have a no true bill in another grand jury matter. And this one has a twist, which is that the U.S. attorney here in the district decided, okay, I know how to get around this because I'm also the local prosecutor. So I will go across the street to Superior Court or across the square to Superior Court and indict the same case in a different court. And for reasons I just can't imagine, that sort of pissed off the magistrate judge. So what do we know about what's happened here?
- [98:21]
Roger Parloff
Yeah, there was an article in the New York Times about it by Alan Foyer. It say, and it's sort of a routine case. It's not a, it's a, you know, it's a drug possession. I mean, it's a firearm possession case. It's not a politically sensitive thing. It's not throwing a subway sandwich at a, at a, at an ICE guy or something like that. But they couldn't get an indictment. He had been in custody and they had to release him. And the prosecutor, this was in the, before the federal grand jury. And so the prosecutor did go to the superior court grand jury, which you can do in the u. In, in the D.C. you, there is no other place, I don't know, maybe in Guam, but you know, there is no other state where you could do this and went before the superior court and did get an indictment and brought it to the magistrate judge. And the magistrate judge was angry, Zia Faruki and wrote a angry decision and then just today and rejected it and said, but no, come back and tell me why you did this. And we can talk about with. But I've never seen this done. I, we did it during COVID because the federal grand jury wasn't sitting. But that wasn't a situation where, you know, the federal jury said no and you went around them back and there were other federal grand juries you could have presented it to. Now the interesting thing is why would it be easier, you know, two blocks away? I mean, it's the same. It's a D.C. grand jury. And so I don't know the answer to that. I think, you know, it could be that there's something about this federal grand jury that has become hostile to this U.S. attorney's office. I don't know if that's personalities or past practice, but anyway, the Janine Pirro's office came in with an 18 page motion today, emergency motion to set aside Judge Magistrate Judge Farouki's order went into James Boasberg, he's the chief judge. And they had a hearing at 2:30 and, and I couldn't attend because I was listening to the Oregon hearing. So I don't know where that is and how it's going to be handled. The papers from the US Attorney, I have to say we're sort of convincing. I haven't seen the other side as far as there is a mechanism to do this. And it sounds like it might be mandatory for the magistrate to accept it. But it does also sound like, I don't know that this has ever been done before as a way of circumventing, you know, a federal grand jury that's hostile to you.
- [101:33]
Benjamin Wittes
All right, we have one question in the queue and it is from Dexter. Dexter, the floor is yours.
- [101:43]
I, I just want to understand the, the reason why we're not freaking out about the fact that federal money wasn't spent, appropriated by Congress. And from my understanding that money is gone now. So why even pass a budget bill? Why even shut down the government? My wife works for the federal government. So I don't understand why we should just pass it because he's just going to say next year I don't want to, I don't want to do it anymore. And the Supreme Court has basically allowed that. I'll leave that to, to the discussion.
- [102:33]
Yeah. So I have a few thoughts on this and then if anybody else does, feel free to add on. So the first thing is when you say why we're not freaking out about it. A lot of people are freaking out about the, the impoundment issue. And there was a lot of litigation about it both in front of Judge Ali and in the National Endowment for Democracy case, which was actually successful. The. So I mean, what I think is fair to say is that the Supreme Court is not freaking out about it, at least not in the sense of doing anything on the emergency docket about it. And they did allow the pocket rescission to happen. They did not say that the pocket rescission was legal, by the way. And so I think you actually have a kind of complicated picture that basically looks like as long as there is a Republican Congress that won't do anything about a pocket rescission, the Supreme Court is not going to intervene on an emergency basis. But it has not said that a pocket rescission is lawful. And I do think the picture would change pretty dramatically if you had Democrats in control of one of the houses and could vote down the pocket rescission. In a timely fashion.
- [104:13]
If I may bend.
- [104:14]
Roger Parloff
Can I. Can I ask the question.
- [104:16]
Benjamin Wittes
Yeah, please.
- [104:17]
What is functionally the difference? If they, if they do a pocket rescission but the Supreme Court hasn't said that was lawful, then I, I'm struggling to understand what the difference is. They've literally done the thing they wanted to do.
- [104:38]
Yeah. So there's a big difference between the two. And it is that in one case it has been validated and in the other case it has simply not been stopped. And there are other mechanisms that you could imagine that one might use to stop it, just not in a situation in which the part you have unified party control over both the executive and legislative branches. But for example, if these, if these appropriations had been clearer, not grant, basically not appropriations for grants that had not been assigned, but appropriations for that affected particular individuals, those people would have standing to sue, much like the National Endowment did. And they got their money. Right. And so I think it really matters on the specific. And of course Congress can stop a rescission. So, you know, not saying that it's lawful matters. It doesn't matter for this particular incident.
- [105:55]
Roger Parloff
Right.
- [105:55]
Benjamin Wittes
For the specific appropriations that went forward here, I don't think, you know, the administration wins this round for those $4 billion or whatever it was.
- [106:07]
And I may eat up too much of your time, but I'll just, I'll just throw out my last point that. That had me mad, madding. I was like going off the issue is there, is that. Okay, so the Taft Act, I guess, puts them into a contract legal negotiation and that's what the Supreme Court said you need to do. But then the money's no longer available. Now we're in a shutdown. And I mean, I just don't understand like if, if you were a lawyer, like, because I don't believe this is a Trump thing. This is Russ Vaught and I think he knows that if you were a lawyer litigating this case, it doesn't matter because I can just do this. He intentionally submitted the rescission.
- [107:12]
Roger Parloff
Based on.
- [107:13]
Benjamin Wittes
The timeline that he knew would not.
- [107:16]
You know, there is no violate the law. There's no question that it was dirty pool. And I. You're not going to get me to defend it. You're not going to get me to say that it's okay. I'm merely saying that it is different from, from the Supreme Court affirmatively okaying it. It's more passive than that. Roger, you get the last word today.
- [107:48]
Roger Parloff
I just want to say I, I am freaking out about this and it may be that I'm I might have this wrong, but that ruling, the the emergency ruling from the Supreme Court in the AVAC case, it said the application, it said the government at this early stage has made a sufficient showing that the Impoundment Control act precludes respondents suit brought pursuant to the APA precludes it. It's not like it precludes the $4 billion claim. It conclude it precludes all of it. And I think what they're saying is this notion that I think is pretty crazy and that the Impoundment Control act, which was meant to strengthen Congress's hand against the executive, actually cuts its hands off that unless the head of the GAO brings a suit, which isn't good. There's no other way to challenge these things anymore. And that seems to be their tentative ruling is granted, it's only a state, but it's I yeah, I'm freaking out about that.
- [109:14]
Benjamin Wittes
With Roger freaking out, we are going to leave it there. Lauren Voss, who dominated the first 25 minutes of the show and has been a silent presence ever since. Eric Columbus Roger Parloff thank you all for joining us today. The Lawfare Podcast is produced in cooperation.
- [109:38]
Eric Columbus
With the Brookings Institution.
- [109:40]
Benjamin Wittes
You can get ad free versions of.
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Lauren Voss
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- [109:44]
Benjamin Wittes
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- [109:57]
Lauren Voss
Look out for our other podcasts, including Rational Security, Allies, the Aftermath, and Escalation.
- [110:04]
Benjamin Wittes
Our latest Lawfare Presents podcast series about.
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Eric Columbus
The war in Ukraine. Check out our written work@lawfaremedia.org the the.
- [110:13]
Benjamin Wittes
Podcast is edited by Jen Patya and our audio engineer this episode was Ian.
- [110:17]
Eric Columbus
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- [110:19]
Benjamin Wittes
Our theme music is from Alibi Music.
- [110:21]
Eric Columbus
As always, thank you for listening.
- [110:37]
Benjamin Wittes
Elevate your sales performance with the Agile.
- [110:39]
Eric Columbus
In Sales course from Scrum Alliance. In just eight hours, you'll master Agile frameworks and strategies to close deals faster, drive market expansion, and deliver more customer value. Earn your micro credential@scrumaliance.org today.