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- [00:00]
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- [01:19]
Benjamin Wittes
It'S the Lawfare Podcast. I'm Benjamin Whittis, editor in chief of lawfare, with Lawfare contributor Marty Lederman, Public Service Fellow Lauren Voss and Senior Editor SC are Anderson, Roger Parloff and Eric Columbus. In the October 31 episode of the trials of the Trump administration, we discuss the Supreme Court's handling of the legal challenges to the federalization of the National Guard in Chicago, James Comey's motion to dismiss the indictment against him, litigation over the Trump administration's attempts to suspend SNAP during the government shutdown, and much much. It is Friday 31st October. I bet you can't guess what day that is. It is 2024. It is 4 o' clock PM in Washington. No trick or treaters have yet come to my house and I can't do the entire show with this mask in.
- [02:31]
Roger Parloff
Front of my face.
- [02:32]
Benjamin Wittes
So I have layered costumes. Yes, there is the mask thing, but then when you pull away the mask, when you rip it away, I've got a barrister's wig as well. You're watching Lawfare Live. I'm Benjamin Wittes, editor in chief of Lawfare, and I am here with a pregnant skeleton, Lauren Vahasan. Yeah, and we've got a cow, Roger Moo. And we've got, I think, Alexander Hamilton maybe. Is that right, Eric and Scott R. Anderson, who comes dressed as Himself, as.
- [03:19]
Scott R. Anderson
Always, senior, lazy middle aged father, as is my want.
- [03:24]
Benjamin Wittes
And we got a whole lot of material to cover this week, folks. And for those who are wondering, yes, we have abandoned Zoom after last week's technical disaster, which was not the fault of anybody associated with Lawfare. It was, in fact, Zoom problems and a lot of them. So we're going to be migrating Lawfare live over to Riverside, where we do most of our other stuff these days. And thank you for bearing with us on that. All right, we got a lot of material to cover. Let's get into it first this week. A lot of domestic deployment news. And so, Scott, why don't you get us started with what's going on in Oregon where the 9th Circuit. I'm honestly, you know, just a news consumer here and I cannot keep track of what is going on in the 9th Circuit. So catch me up and I suspect I will not be the only one who needs the catch up.
- [04:41]
Scott R. Anderson
Yeah, needless to say, there is a lot happening. I will just say, you know, when I studied the Insurrection Act, a lot of these related legal questions in law school, I was the line was, man, these haven't been before the Supreme Court since the middle of the 19th century and they probably never will. And now not only are they before the Supreme Court and before lower courts, they are in like multiple ongoing, very complex matters. Something's happening every week, so it's not easy to take care of. And we have a special guest who's gonna join us to talk about one of these cases in a second. Hey, Marty, we just started talking about a few of the other cases and we're gonna circle back to the Illinois case in just a sec, starting with the Oregon case. We did get some news out of the 9th Circuit starting at the end of last week. Coming in this week, the ninth Circuit had been considering whether to rehear en banc the second panel opinion that had stayed the preliminary injunction issued by the district court in Ore. V. Trump. That this came a few weeks ago. This case, the ninth Circuit had said we're considering rehearing it sua sponte, at the motion of a judge. They had briefing last week, I think shortly after Lawfare Live last week, if I recall correctly, the en banc coordinator, Sid Thomas, indicated there had been administrative stay issued on the stay issued by the preliminary the panel pending the decision on rehearing en banc that was gonna last until Tuesday at 5pm Pacific. And lo and behold, shortly after 5pm Pacific on Tuesday, we a decision in which the en banc court in the 9th Circuit did decide they're going to rehear this matter, and that effectively vacated the opinion by the panel. Although it does something a little different with the preliminary injunction. I'll get to in a second. This does mean the 9th Circuit's going to rehear at en banc because it's the ninth Circuit. It's a little weird. That means that all of the active judges, a majority of them, voted to rehear at en banc, but the next actually en banc reconsideration is going to go to a panel of 11 judges, the chief judge, and then 10 randomly selected judges. In theory, it could, after that, if there's further, further dissent from the court, go to an actual full rehearing en banc of all the active judges. Although my understanding is that very, very rarely, if ever happens in the ninth Circuit. So a little strange procedure, though different from other circuit courts. I mentioned that something a little stranger than that happened in regards to the stay that the panel had initially issued of the preliminary injunction. Recall that the district court in this case had issued two preliminary injunctions, had said initially, I'm gonna join you from federalizing National Guard troops in Oregon and deploying them to Portland. And when there reports a few days later that the Trump administration is considering sending federalized California National Guard troops to Oregon instead issued a second TRO that said, essentially, hey, I am going to enjoin you from also deploying any of these federalized National Guard troops to Oregon. Only the first TRO is technically appealed, but once it was stayed by the three judge panel, the district court had said, hey, I'm going to rapidly reconsider whether I need to reconsider the basis for my second tro. It was in place pending a decision of a rehearing on banc by the ninth Circuit. And now my understanding, at least we haven't seen anything contrary that I'm aware of coming from the district court, is that that second TRO is going to stay in place. But notably, the ninth Circuit issued a clarification saying that even though they vacated the decision by the panel opinion, they're leaving in place the stay issued by the panel opinion regarding the first tro. That essentially means that troops in Oregon will be able to be federalized and mobilized. They're not able to be deployed, which is kind of the status quo split that the panel has decided on. That's kind of been in place since the init matters of appeals kind of came forward. We also saw an interesting bit of a factual question come up in this Matter. And Lauren, I want to hand over to you to talk a little bit about this question about a little bit of a correction on the record that came forward and got implicated in some of these decisions.
- [08:25]
Lauren Voss
Yeah. So it's a question of whether or not there's causation here or not in the en Vallequiri hearing. But plaintiffs sent a letter on October 23rd to the 9th Circuit saying there was a material factual error by defendants and that the panel had relied on it to grant the stay. So they requested either withdrawal of the order or the en banc court to vacate it. And cited twice in the opinion for the stay was this percentage, which is that the record reflects 25% of officers nationwide were diverted to Portland. And this is FPS officers were diverted to Portland, and that the President could rely on this evidence in determining whether he's unable to execute the laws. The other reference said 25% of a nationwide capacity. That's irregular and unsustainable. The plaintiffs wrote a letter saying it was never 25%. It was a number of individuals over time that added up to a certain number, but it was never 25% at once. So the defendants clarified in another letter on the 28th of October, they had the wrong number of FPS inspectors. They claimed originally, you know, it was 25% of the national force. It was actually only, you know, like 85 unique individuals and not all of those were inspectors. So once you get down to inspectors, 13.1%. Right. And so they're saying, though, that part of that was caused by redeployment of some individuals and county non inspectors. But redeployment means that not all these people were deployed at once. Right. So if you go back to the plaintiff's letter, there was never more than 31 people at once. And even if you assume they were all inspectors, which the defense letter says they were not all inspectors, the highest amount you had at once was 6%. And then leading up to the actual federalization order, it was 4%. And that's assuming that they were all inspectors. So 4% versus 25% is a pretty big difference between, you know, how much of the national capacity was actually used. So if the court did actually rely on that number, this is worth this coming up.
- [10:38]
Scott R. Anderson
Yeah, it's a really interesting exchange there. And this isn't the only factual question. We saw a lot of development in particularly around the Oregon deployment because, of course, we had the district court trial go on, or we saw a lot of hearings and actual evidence and discussion about what's actually been proposed and discussed on the ground. Lauren, you listened into most of that. Talk to us a little bit about that as well.
- [10:55]
Lauren Voss
Yeah, so I think it's on lunch break right now, but it's been going on the last three days. I probably listened to two thirds of it. Remember, in this trial is on the preliminary injunction and the merits, and, you know, they're bound by the 9th Circuit standard, colorable assessment of the facts and law within a range of honest judgment. A couple things that I think were interesting so far. Plaintiffs have been very focused on some events that occurred after the federalization. They spent about an hour and a half on a specific event in October 18th when federal forces appear to have launched ammunition that hit the building, and then federal forces on the roof responded. Right. So they thought it was the protesters, and it was actually, you know, a question of whether or not it was a negligent discharge. But basically federal. Federal forces causing another federal force response and, you know, CS gas into the crowd. The judge, Judge Emmergup, seemed really frustrated with plaintiffs, especially on day two, that they'd spent so much of their time focused on events that were past federalization and past the federalization time period. So she kept emphasizing, my focus is on the original decision to federalize. Why aren't you doing that? And basically said, okay, well, you know, it's your trial. You can say what you want, but this is what I'm focused on. But she was also pretty upset with defendants and that it took a long time to get that first TRO order out that Scott was talking about and stop the operational usage of the National Guard at the ICE facility. So on day one, defendants come out and say, okay, you issued the order at 3:40 Pacific Time. It looks like troops were deployed after that. And then around midnight, we pulled them back when their shift ended. She goes, well, is this direct contempt of my TRO asking that question? On day two, the defendants clarified that the Oregon National Guard was already at the building providing protection when that TRO came out. The DOJ lawyer was unsure who was actually responsible for telling the National Guard that they needed to be pulled back. And, you know, she says, well, you know, if. If you were really, you know, you were able to get the Texas National Guard mobilized and the California National Guard mobilized, you know, and said you were going to move them to Portland, so if you wanted to move faster, you really could have. And she also said, you know, I told them I was going to issue an opinion as soon as I could that weekend. Isn't this in bad faith that you deployed the people anyway. And their response was no, we really needed those eight National Guardsmen that we deployed. So that was the number that was put out at that time period today was particularly interesting. The acting Assistant Chief of the National Guard Bureau testified he's the one that sent the memoir memo to the Adjutant General of Oregon. Right. The one saying you have 12 hours to deploy under Title 32 or, you know, threat we're going to do Title 10. Major General Rieger, some interesting questions for him. They asked him specifically about the legal analysis that was conducted prior to the decision to federalize under 12406. And note, he is a JAG. He was previously the principal deputy general counsel for NGB. Right. But he basically said, you know, he had no awareness that there was any legal analysis conducted beforehand, which you would think he would. Ben's going to distract us all. So he also said that getting to the actual on the ground piece of it, that the National Guard's always armed. He can't think of a mission where they're not. Which was an interesting thing to say. I think that's, that's not true. We know of instances where they're not. Maybe he's thinking of armed, meaning that they have their service weapons at a location nearby that they can get them. I've seen that in some cases. But also most missions of the National Guard do or state active duty and NGB doesn't necessarily oversee those. So he's not actually aware of a lot of those missions. Granted, he's from the California National Guard, so we could talk to that. And then trying to get to the plaintiff's injury claims, he's asked a lot of questions about what the effect is of deploying the National Guard. And he states that the National Guard always has a calming effect. Always has a calming effect. He can't think of any instance where they haven't and they de escalate. Granted, they clarified the only time he's seen a 12406 deployment. So a title 1012406 deployment is in California. Right. He had seen it nowhere else. Yeah. And I see in the quotes or in the comments, you know, Ken. But yeah, so right. This is. We know this isn't accurate. Right. So Kent State is one we can think of. That was before his time. He said he's got 30 years of service, so too far back for him. But we have the low flying helicopter in D.C. right. Remember that in 2020 that was considered escalatory. We also have a 2020 National Guard shooting in Louisville, Kentucky, where the DOJ investigation showed that a police officer fired at an. Or fired a weapon at an individual. Non lethal weapon. Her uncle fired some shots in the air. There was, I think, 19 shots then fired at that individual, including some by National Guard. And it was determined that National Guard were the actual ones that shot and killed him. That did not deescalate the situation that resulted in more violence. So it just seems like that claim that it always deescalates and it's always peaceful is strange. And then, you know, I don't want to.
- [16:36]
Benjamin Wittes
It'd certainly come as a surprise to, you know, Crosby, Stills and Nash.
- [16:43]
Lauren Voss
So, yeah, it was.
- [16:45]
Marty Lederman
Sorry, Ben, but that was sacrilege. Neil Young wrote the song.
- [16:51]
Benjamin Wittes
Okay, sorry. And then I stand corrected.
- [16:56]
Lauren Voss
Interestingly, before we get to Marty's remarks, one of the things that he was specifically asked about was, were active duty troops considered for this deployment? Were they attempted to be called out in Poland? It was asked a couple different ways. You know, what was the potential to use active duty instead of National Guard here. But he said he had no knowledge one way or the other. Who asked whom?
- [17:21]
Marty Lederman
Lauren?
- [17:22]
Lauren Voss
That was what the DOJ lawyers asked the acting Assistant Chief of ngb. So Major General Reiger, he was the one that issued. Yeah.
- [17:35]
Roger Parloff
Oh, no, no.
- [17:35]
Lauren Voss
You know, you're right. That wasn't DOJ lawyers. That was on cross. That was the plaintiffs. I believe it was the State of Oregon's attorney, but I don't have notes on which attorney it was.
- [17:49]
Marty Lederman
Because I was going to say, with all respect to your deep dives into these cases in California and Oregon, this seems otherworldly to me.
- [17:59]
Benjamin Wittes
How so?
- [18:00]
Marty Lederman
Are they not. Is no one paying attention to what's going on in the Supreme Court of the United States? Like they're having these trials about questions that strike me as probably not terribly germane to the legal assessment that's supposed to be made here.
- [18:16]
Scott R. Anderson
Well, that gets us.
- [18:17]
Benjamin Wittes
Unpack that for us.
- [18:18]
Roger Parloff
What?
- [18:19]
Benjamin Wittes
You know, the Supreme Court hasn't reversed the overturned. So what are they supposed to do?
- [18:27]
Marty Lederman
I'm not sure what they're supposed to do. To do. I'm just. I'm curious. This is why when Lauren finally said, I guess the. Or the plaintiffs in Oregon now seem to be making noises about whether the regular army was called out first. That they are. Have they said that that's the requirement, the precondition. That has to be met.
- [18:50]
Lauren Voss
They have not. This was just a question they asked on cross of this.
- [18:54]
Benjamin Wittes
This.
- [18:54]
Lauren Voss
Of this NGB general, but they didn't put it in context of why they were asking it.
- [19:00]
Marty Lederman
So what's been going on in all three places, Louisiana, Portland and Chicago, has been that everyone's been litigating the trials, the appeals, all of this on the presumption. So the language of the statute is that the president is unable, with the regular forces to execute federal laws. And the Ninth Circuit construed that to mean somewhat like out of nowhere, sort of based on nothing, that there needs to be a significant impediment, whatever that means, to the execution of federal laws or, you know, a good faith belief in a significant impediment. But that seems to have been pulled out of the air in part because both parties proposed constructions of what it means to be unable to execute the laws seem too extreme at one extreme or the other. Right. On the one hand, the plaintiffs are saying that means you have to be completely unable to execute the laws in any respect. And the government saying you have to have the President said, you know, there has to be any impediment whatsoever. Right. So if the president were right, it would mean he could always call into place the guards. And if the plaintiffs were right, you could never do it because you can always implement the law to some extent.
- [20:16]
Scott R. Anderson
Marty, before we circle back on this, let me tee this, listeners who may not be familiar with this, because I want to get to your brief in the Illinois case, but let me just tee it up for folks who may not have caught this development and then we can circle back to that. Is it okay for like one second? Because we are talking, I think we're previewing the other line of litigation that we saw a big development in this week. That is Illinois v. Trump. This is, of course, the case where we did see a planned deployment to Chicago getting joined by a District Court. The 7th Circuit then upheld that on appeal, did not issue a stay as requested by the government. The government then went to the Supreme Court, requested an immediate administrative stay as well as a stay, did not receive the immediate administrative stay, at least as in yet no rule on the stay. But we saw the Supreme Court do the first thing this week, and that is they said we want additional briefing on exactly this question, a question that really was not, I think, squarely teed up by really any of the main parties briefing, which is that in the statute the government relies on 10 USC 12406, the third prong of that, the one that at least the 9th Circuit panels were persuaded was checked that looked at this in the California, the Oregon cases, says the president may use these forces to Enforce federal law where otherwise determines he's unable to do so with the regular forces. I'm paraphrasing, except for that regular forces quote. And so the Supreme Court's now asked for additional briefing that takes us into mid November, meaning presumably we will not get a stay before then, but that we are going to see additional briefing on this question. That question was raised by none other than Marty Lederman, almost exclusively, I would say, in an amicus brief before the Supreme Court, filed week before last, just last week, actually, I think in relative recent order.
- [21:54]
Benjamin Wittes
Does we have Marty Lederman right here In a Marshall McLuhan like fashion.
- [22:01]
Marty Lederman
You know, nothing of my work, if I may quote. La dee da. La dee da.
- [22:08]
Scott R. Anderson
Well, so, Marty, I want, you know, it's a really fascinating debrief. I mean, you have really seized on a legal aspect that was not fully developed. You know, I have theories as to why people may have glossed over this particular meaning of this language. I suspect a lot of it has to do with the relationship between 12604, the 406, the provision they rely on here, and the Insurrection act that has vaguely similar language, but seems to say something very different where it says about unable to enforce federal law about through normal judicial proceedings, and here they're talking about regular forces. But your brief makes a pretty persuasive case that in 1908, when this language was put in the statute, regular forces meant something a little different. So can you walk us through this a little bit for folks who haven't read the brief, talk to us about what your case is, about what that actually means in this context.
- [22:52]
Marty Lederman
So I will but let me just preface frame this in terms of what's going on in the Ninth Circuit cases. The fact that the Supreme Court asked for briefing on this issue on which forces are relevant suggests we don't know for sure. Who knows, a thousand different things could be going on in the court. But it suggests that there were not five votes for upholding the TRO in Chicago, which is, I think, the easiest of the cases to uphold the injunction. But for this question. Right. And that could be for a lot of reasons. It could be because they think you need to defer to the president's assessment. It could be that they think that the phrase unable to execute is much closer to Trump's view of what that means than what the 9th Circuit says it means, some combination thereof. Maybe they're uncertain. It's certainly not the case. If there were five to just uphold the injunction in Chicago, they would have just done that it wouldn't have mattered whether I'm right or not about the regular forces. And so I would have thought that in Oregon and Los Angeles now the judges would be asking the parties, are we even talking about the right question here? What do you think? Now, my understanding is that California has actually abandoned my reading of the statute and has argued that DOJ is right, that the regular forces responds to forces from the Department of Homeland Security, which is a little bit odd given that the statute was written in 1908. But there you have it. And this whole litigation is proceeding both on the idea that the question is, what ice and what's the name of the other entity within dhs, TPS or something?
- [24:45]
Scott R. Anderson
Cbp.
- [24:46]
Marty Lederman
What is it?
- [24:47]
Scott R. Anderson
Customs and Border Protection?
- [24:48]
Marty Lederman
No, no, the one that's protecting the ice. It's in my fridge somewhere. Something protected.
- [24:54]
Eric Columbus
Federal Protective Service.
- [24:55]
Marty Lederman
FPS. FPS and ICE are the forces that are relevant here and that the metric is, were they substantially impeded from executing the. You know, from executing the law? Both of which are questionable. It's not clear to me that what the courts are doing in the 9th Circuit, it corresponds to the way the Supreme Court justices are thinking about this case. And I would have thought that the parties and the judges there would have taken the court's order and said, well, wait a minute, let's do it. Let's rethink this and see whether we're even asking the right questions here and expending so much energy on those. So, basically. So this is what occurred to me, right? You have all of these states and DOJ and all of these judges, save for the district court judge in Chicago, all assuming that the regular forces refers to ICE and FPS. And I looked at the statute, and I say, well, that's strange for a few reasons. First of all, the phrase is the regular forces, and it was written in 1908. And unless the Congress in 1908 was incredibly prescient, I don't think that they were talking about ice. And yet no one, as far as I know, not a single one of the parties or judges in this case has bothered to go and look at this, the legislative history or context or anything of this statute, which was first enacted in 1903 and then amended in 1908. And that's a really strange way to litigate a case, right, where there's all these.
- [26:42]
Lauren Voss
Judge Graeber didn't bring it up.
- [26:44]
Marty Lederman
What's that?
- [26:45]
Lauren Voss
Judge Graeber did bring it up in the 9th Circuit hearing, like, a week and a half ago, where she said, you know, does it mean regular forces, mean the military? But she just looked at 12, 4, 05 and she's like, look at the provision before, you know, what does this mean? But the parties were like, no one's arguing that.
- [27:03]
Benjamin Wittes
So I know.
- [27:04]
Marty Lederman
So everywhere across the country, everyone's trying to construe a statute. And as far as I know, I'm probably wrong about this. But from what I saw in all the briefs that I read, not a single party on either side has looked at all to what Congress was doing in this statute. And I find that kind of shocking.
- [27:25]
Benjamin Wittes
And what happens. Talk to us that.
- [27:26]
Roger Parloff
Marty.
- [27:27]
Scott R. Anderson
Sorry, go ahead.
- [27:27]
Marty Lederman
What happens if you do that?
- [27:29]
Benjamin Wittes
Yeah, well, according to, how does the.
- [27:31]
Marty Lederman
Analysis, according to the amicus brief filed in the Supreme Court in the United States, it is absolutely evident, you know, it's unambiguous that it refers to the regular Army. It refers to the professional standing military. And the whole point of this statute, or not the whole point of this statute, the statute was a much broader statute about finally creating a very effective and efficient and well trained and well subsidized, well equipped National Guard that could be brought in to supplement the regular Army Army. And this provision of that statute, the one involving calling forth the National Guard in cases of rebellion, insurrection, and to execute the law where the President is unable with the regular forces to do so, was meant to make the National Guard the next entity in the line of order, in the sort of order of operations behind the regular army, but ahead of the volunteer units which were present at the time, which no longer exist, but which were being used in the Spanish American War. And so basically, as I read the statutes, there's an order of operations. There has to be some level of breakdown of the ability of civilian law enforcement, whether it's local or federal, to execute federal law, at which point you can use the, the regular army and maybe simultaneously, but usually afterwards, if the regular army is not available, let's say they're off fighting a war or something like that, or they're not sufficient numbers or there's not enough present, then you can call forth the National Guard. And Donald Trump didn't even think to ask this question, would I be able to execute the law using the United States Army? And therefore he didn't make a finding that he was unable to do so using the United States army in conjunction with ICE and tps, and therefore, for that reason alone, so I argued in the brief, he has not satisfied the predicates for the calling for invoking 1, 2, 4, 06 and so thrust of my brief was that what all of the parties and judges are doing in all of these cases is sort of looking in the wrong place for the wrong things.
- [29:55]
Scott R. Anderson
It's a fascinating argument and I think a really compelling one. You have a lot of circumstantial evidence about the uses of regular force in a variety of contexts, but there's a lot of parallel usage of the term regular forces and other provisions in the 1908 Act. You point out that it's hard to avoid the conclusion where it's even clearer than in that plain language there they are clearly talking about regular military forces at least. Certainly those other provisions and the same language seem to apply. A question I have two questions for you about what this means in practice though. As we weigh as the court, assuming they abide, your argument then have to go on to the next stage to say what does this mean in consequence And I'm curious what your views on this are. The first is what is the threshold the president has to meet here?
- [30:34]
Lauren Voss
Here?
- [30:34]
Scott R. Anderson
Is it simply a declaration of his finding that I have determined that this cannot be met? Is it that he has to try it to go further and say he can't be met? Do we have a sense or do you have a sense about what is necessary to surpass the threshold if it is interpreted properly as you understand it?
- [30:55]
Marty Lederman
You mean if he had used the US Force, the regular forces, or if they weren't available, if he determined they.
- [31:00]
Scott R. Anderson
Weren'T available, or what is a Presidential.
- [31:04]
Marty Lederman
Determination act to be unable to execute federal law?
- [31:08]
Scott R. Anderson
Exactly what is the threshold of evidence he has to present?
- [31:11]
Marty Lederman
I have not taken a position on that question in part because I haven't drilled down onto it. That is the principal question that's been litigated going back to the Judge Breyer decision in the summer in the Ninth Circuit. And that's how the court came up with this significant impediment test based on good faith. You know, all of the they basically jerry rigged. I don't mean to be completely pejorative. This is what courts do. They come up, there's vague statutory language, open ended statutory language and they tried to operationalize it. It's not an unreasonable way to do it, but it does seem to be rather randomly chosen as a test. You can imagine a looser test, you can imagine a tighter test than the one that the ninth Circuit came up with. I don't have a position on that that's any more well thought through than anybody else's. Scott. My point is simply in the first order of things, the President has to use the regular Army. And then this might be your second question. Is he legally authorized to use the regular army? And if not, and what's the test for that? And if he's not, can he use the National Guard? And I do argue in the brief. The second question, no, he can't. If Congress has precluded the use of the regular military, it follows a fortiori that he can't use the Guard. So that obviously tees up the question, are the predicates present for him to call in the army under the Insurrection Acts? And that is a notoriously and famously difficult fraught question. What the standards are in a case.
- [32:48]
Benjamin Wittes
Of fraud politically as well as.
- [32:50]
Marty Lederman
I guess so it is very interesting to me that they have not yet invoked the Insurrection Act.
- [32:56]
Benjamin Wittes
I mean it does seem like that is a political impediment because although Stephen Miller seems to get a, you know, a tingly feeling up his leg about invoking the Insurrection act, the President hasn't actually done it yet and he has sort of alluded to it it a few times. But there does seem to be a psychological or political impediment to doing it that I'm not sure I fully understand. But it does seem to be a restraint.
- [33:29]
Marty Lederman
Yeah, I don't either, Ben, and I find this to be rather curious. Do they think that it's politically or optically worse to have regular army forces in there than the National Guard and or ice? I mean the irony is that the regular army is going to be far more disciplined and far more careful and less arfit arbitrary and brutal than these other forces. In today's world, ICE is the least trained and the least subject to control of all these forces. It's sort of very different world than it was in 1903 and in 1908. But Ben, what I suggest in the last four pages of the brief is actually, and I'm going to posit here, that maybe longstanding DOJ views are still playing some role within the Trump administration. Humor me here for a second. There's this important memo from Eternal Marty.
- [34:32]
Benjamin Wittes
What hope springs eternal?
- [34:36]
Marty Lederman
So there's this important memorandum that Nick Katzenbach wrote as the Deputy attorney general in 1964 to LBJ about the seemingly open ended language of two of the provisions of the Insurrection act that seemed to give the President virtual carte blanche if read literally to use the regular army whenever he has determined that. I forget what the word is, that it's not unable, it's a looser term than that to execute the law.
- [35:10]
Roger Parloff
But.
- [35:11]
Marty Lederman
The understanding of DOJ as of 1964 and as far as I know, the continuing understanding, but I don't know for sure, has always historically been that, in fact, it takes quite extraordinary circumstances in order to call forth the army outside of two contexts. So it's alleviated if either the governor is asking for the national help that describes most of the historical cases, or a handful of cases in which the governor is getting in the way, or the state officials are not being cooperative, but the federal government calls in military forces in order to enforce a court order, the most famous example of which is Little Rock in 1957. And what Kazemak says is outside of those two circumstances, it has to be a situation in which basically all order has broken down. The state has either become complicit with the insurgents or can't control them at all. And when the Ku Klux Klan has taken over, has become the state actors, become the sheriff in town. And short of that, these statutes have not been invoked. So I don't know if that was gonna be your second question, Scott, but so at the end of the brief, I urge the court not to say anything about what the standards are for invoking the Insurrection act, because I don't think that's something that should be decided over the course of a weekend on the emergency dock it. But I do try to say to them that, for instance, Jack Goldsmith and Bob Bauer wrote this New York Times piece, and Jack wrote a piece on his blog saying that the Insurrection act is like nothing. You can just invoke it anytime you want. And I want to start pushing back against that idea that has not historically been the understanding of that statute.
- [37:03]
Scott R. Anderson
That's really useful context, Marty. And you did anticipate my second question. I have one follow on to that I think you may have implicitly answered, but I want to drill down as we think about the follow on consequences, if your argument is right, because I think it's really interesting, which is that I think you read your argument for 19 for 124063 to have the sort of bite you're suggesting to be a limitation on the deployment of National Guard troops or federalized National Guard troops, you would have to read it as limiting the authority provided to call forth state militias and presumably National Guard troops provided by the Insurrection Act. So it's actually a limitation on the Insurrection act, which I think would render a lot of invocations of the Insurrection act over the 20th century inconsistent with the law, because many of them were of state National Guard troops without that prior finding, depending on I guess, what standard you settle on, without either a prior finding that active duty troops were inadequate or a prior effort to deploy active duty troops. I don't think that means it's wrong. Everyone might be right. But it raises an interesting practice question and I'm curious how that might enter into the arguments here, how you think it might weigh in with the court. I think I'm right about that. I could be wrong, but I'm Fairly certain most 20th century deployments, at least in the latter half, were mostly state National Guard troops. And that's kind of been the modern practice on the interaction accidentally go first to state to National Guard before active duty, at least in the last few decades. Well, it hadn't happened that all for the last few decades, but the last half of the 20th century. Do you think that weighs at all or is it more of a formalist distinction than forcing?
- [38:34]
Marty Lederman
Scott, I have to confess I haven't done that work. Two all nighters is two too many, so I haven't done that work yet to drill down on it. My understanding is that most of the cases the regular army is used at least in conjunction with the National Guard or not. But don't take my word for that. I don't know how often it hasn't been. What I do know is that the vast majority of the cases have involved the governor wanting the National Guard and asking for the National Guard to be called forth. Not now. I don't know how all these pieces fit together. That's one reason I'm urging in my brief. I urge the court not to be precipitous in answering these Insurrection act questions because I think they're hard and I think the history is quite complicated or at least uncertain with respect to them, which is to say I haven't done the work yet. So I don't know the answer to your question there.
- [39:35]
Scott R. Anderson
It's a fascinating argument and it is really interesting to see it come full force and we're about to see a whole round of briefing on it that frankly, as you noted, the parties really have not really squarely addressed this in the future. Do anybody other folks here have any questions for Marty before we move on from the specific question of his brief? Marty, you're welcome to stay for the rest of the discussion. We have a bunch of other cases we're following and going to talk about as well. Or Marty, if there's any last thing you want to get off your chest about this but really appreciate you finding the time and coming to talk to us about.
- [40:03]
Benjamin Wittes
About it?
- [40:06]
Marty Lederman
No, no, no, not really. I mean, I'm, I'm here for you guys and whatever you think your, your viewership would be interested in.
- [40:13]
Benjamin Wittes
Well, hang around and we're going to, we're going to move on. And you should.
- [40:17]
Marty Lederman
Are we talking about the Caribbean?
- [40:19]
Benjamin Wittes
Oh, no, not this week. Not this.
- [40:21]
Scott R. Anderson
Because it's litigation.
- [40:23]
Benjamin Wittes
That's the thing about non justiciable issues. They don't show up in the Trump.
- [40:28]
Marty Lederman
I see. This is just the litigation.
- [40:31]
Benjamin Wittes
It's just litigation we got to draw. If you want to blow up boats, you can do it on your own time, Marty. Or if you want to stop the administration from blowing up boats. All right, we got to move on. We got. The 9th Circuit says it doesn't have jurisdiction over this goes back to like August. Scott, help me out. What's going on in Newsom v. Trump?
- [41:01]
Scott R. Anderson
So this is a really interesting little twist that we talked about a little bit the last two weeks. Essentially, the California deployment was extended in August, I believe August 5th was the date where the president issued an additional order saying, I'm extending the federalization of some California National Guard, much smaller portion than had been extended before. State of California brought this to the district court. Judge Breyer, that initially had enjoined or issued tro, I should say that was then stayed, staying the initial mobilization order and said, we want to challenge this. Situations have changed. It's a totally different factual assessment. Like we think even under the appellate court's somewhat refined and more generous standard, it falls short of this order and we can challenge it. And that should not be blocked by the prior findings under very different factual circumstances. District court judge said, look, it's on appeal right now. Like literally that matter is directly on appeal to the Ninth Circuit. I don't have jurisdiction over. You're going to have to go to the Ninth Circuit. The state then went to the Ninth Circuit to say, hey, we want you to issue injunctive rights relief and to say, oh, in fact, we can and should receive a stay of the August 5th mobilization order because the factual predicates are not met in this case. And at the time, at least under the ninth Circuit under this panel's own decision, it was a fairly generous, essentially a colorable determination that 12, 406 conditions were met, made in good faith. They argued that that was not Met and the 9th Circuit panel did not give them what they want, but they gave them half what they want. They said, said, well, we're not going to rule in this matter. Because the district court judge was wrong. In fact, he does have jurisdiction because that matter is not before appeal. It's only the first mobilization order, not the second one. So that decision came down, I think day before yesterday. So presumably, although I haven't seen it yet, the state is now going to go back to the district court with a new filing and say no. In fact, we actually still want to challenge this August 5th order and we're going to get another round of potentially, I suspect from Judge Breyer, another TRO of that August 5th order and then we'll see if what the 9th Circuit panel does with that. But obviously they were not prayer friendly. The other one. And notably we have one other matter we've been following, that's the District of Columbia v. Trump.
- [43:04]
Benjamin Wittes
We now have two other matters. But first we're going to deal with the District of Columbia. Then we will deal with the writ of mandamus that the seventh Circuit just issued. But you do the District of Columbia and then Roger can do the writ of mandamus. Hey folks, Ben Whittis here. And this wild year that we are going through, I don't know, are you numb to it yet? AI is coming for your job. Geopolitical changes are killing historical alliances. The market's bouncing around like a yo yo. Tariffs are on, they're off. The Supreme Court may strike them down, it may not. It's no wonder that many of us are hunkering down, down, saving and looking for ways to protect our future. And one way you may have forgotten about is through the right life insurance policy. You've heard about life insurance, but did you know that it's cheaper than you think? The younger you are, the cheaper it is, like double the price if you wait to buy a decade from now. And by the way, you may not be alive a decade from now. And then you'll have missed your chance. And that's why I think you should look for a life insurance policy today with Select Quality Quote. So maybe you're new to life insurance and you're not alone. If that's true, select quote has for 40 years helped more than 2 million Americans understand their options and get the coverage they need. Over $700 billion in coverage and counting. As a broker, their mission is simple, to find you the right insurance policy at the best price. They take the guesswork out of finding the right life insurance policy. You don't have to sort through dozens of confusing options. Your own one of their licensed agents will find the right policy at the right price for you. Comparing plans from top trusted insurance companies to find a policy that fits your health, your lifestyle and your budget. And guess what? It's free. And if you have a pre existing health condition, no problem. Selectquote partners with companies that offer policies for people with conditions like high blood pressure, diabetes or heart disease. It makes life insurance simple. Simple. Even if it's your first time thinking about it, life insurance is never cheaper than it is today. Get the right life insurance for you for less and save more than 50%@SelectQuote.com LawFair save more than 50% on term life insurance@SelectQuote.com LawFair today to get started. That's SelectQuotequote.com Lawfare hey there folks. Ben Whittis here and I gotta tell you I'm just gonna lay it on the line. I am skeptical of crypto investments. I don't do them, I don't trust em, I don't believe in them. If you're looking to create a stable financial future, gold IRAs let you hold real, real tangible assets in a tax deferred or tax free retirement account. Noble Gold is the number one ranked gold IRA company four years in a row with over $2.5 billion in precious metal transactions. There's no funny business here. Pricing is clear and upfront. No hidden fees or tricky fine print. It's a US based team, available 6am to 6pm Monday through Friday and Saturdays, offering personalized and consistent service. They're helpful, they're here to serve, they anticipate questions and they guide people through complex topics with patience and clarity. And that's empowering. They want people to feel more confident and in control after hearing from them. So take advantage of this limited time offer. Open a new qualified IRA or cash account with Noble Gold and get a free 10 ounce silver flag bar plus a silver American Eagle proof coin. Visit noblegoldinvestments.com lawfair that's noblegoldinvestments.com lawFair.
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So plaintiffs, remember, they'd been arguing that the legal basis for mobilization is incorrect. That although the President is the Commander in Chief, he can only activate them under the circumstances set forth in the D.C. code 49404. Right. Which is like federalization as part of the U.S. government or for execution of the laws or suppression of riots. And then we have the two other provisions in law that shows, like how you do that. They also say the out of state troops require the D.C. mayor's consent pursuant to the Home Rule act and the emac. We talked through that before when this first came out. I'm obviously skeptical of those arguments, but when it comes to missions, then. Then they also argued that the authorities to conduct law enforcement functions violate the Home rule Act. Posse Capitatis 10 U.S.C. 275. Right. And then interestingly, there's a command and control question here. Right, because they're in Title 32, but they argue it's more akin to Title 10 because they have the federal chain of command. Right. So that is kind of like the state of play of where we were. Bottom line from the trial last week or from the hearing last week? Week is that Judge Cobb did think that there has to be limits to the 502F scope, but she seemed really skeptical at the harm as proposed by the plaintiffs. Right. So starting with the DC Guard, she was asking, you know, I just. I don't understand this home rule argument. Can you. Can you tell me what you're trying to make here? What is the mayor's policing power and how is that able to check the National Guard? Remember, remember, the president is commander in chief. He's the one that can call them out. The plaintiff's response was, there's no statute that allows law enforcement done by the National Guard in the circumstances presented as they're doing here. And they are indeed doing law enforcement. Right. So there is provisions specific to execution of the laws and suppression of riots, but Instead they're using DC Code 49, 102, which is kind of akin to 502F for Title 32, where, you know, it's a phrase about doing parades, inspections, and other, you know, other things. And so they're using that to do the deployment versus the one that's specific on execution. So, yeah, it's drills, inspections, parades, escorts, or other duties. And they're saying this fits his other duties. Right. And the defense's argument to that was 49.103. The one that's specific, specific to execution of the laws is not the only restriction. It is just a procedural way to request support because it requires you to go through a certain process. Then we turn to all of the other states. Remember, they're 502F here. And there was a long argument about the uniqueness here because the D.C. national Guard is under federal command. Remember, President, Commander in chief, delegated, detective, delegated to Secretary of the Army, Army. The plaintiff is arguing that this is federal control and subject to the pca. Right. Federal government calls it coordination. And so there's discussion between command and control and coordination. And what this actually is here. Plaintiffs show that daily orders are coming from the federal government straight to the forces. Defendants argue, well, the governors could call them back. They're still administratively in charge. And it's really unclear where this kind of like, comes in out in their view. So then there's a question of 502F, what missions can be conducted? The plaintiffs are arguing just training and training, related missions. We know that that's not accurate. Right. You have homeland defense missions, which are explicit in title 32. Section 904 says you can do them under 502F. You have drug interdiction, section 112 that you can do under 502F. Right, right. But what you have to focus on here is that 502F is the mobilization authority, and then you have to find that mission authority elsewhere. And I think that's what was confusing the court here is like trying to figure out what the scope was, because the judge asked the defendants, okay, so then what is the limit on 502F? Can you do anything underneath it? And the DOJ lawyer was really struggling to come up with a limitation and said, well, I can't find it. I'm looking at the statute. The only thing that's in there is that it has to rise to the level that The President or SecDef asked for it, but otherwise there's not a limitation. And the judge seemed to be very nervous about that argument particularly. But I think that's because they're getting confused, like I said, about that mission authority piece of it. And so where is that coming from? So, I mean, there's two core points here that I would say are worth remembering, which is they're arguing, you know, the D.C. guard, you can't turn it into a federal police force under a phrase that talks about drills, inspections, parades, and other duties. Right. That's not a fair reading of the DC Code. And then for the out of State Guard, you can't turn them into doing DC law enforcement functions under a broad reading of 502F's training and other duties. Right. So there's parallel arguments there. However, the defense made a motion to dismiss based on. And a big portion of that is the harm, which is really hard to prove here. Right. So the judge kept asking, what is this irreparable harm to a sovereign power? What sovereign power are you talking about here? This is a mayor. This isn't a state. You don't have the same type of power. So plaintiffs try to argue, okay, well, it's more of local autonomy. That's the power we're talking about here. And the police power is in the local government, and the troops are doing law enforcement. So the judge, Judge Cobb, seemed really skeptical that these harms had come to fruition. She's like, point me to the record. Tell me how this has happened. And you're talking about the potential for deadly harm. But a lot of time has passed now, and none of this has come up so the plaintiffs went back to the same arguments they make in their brief diversion of resources. The public's not calling the police because they're afraid they'll come with the military. African Americans are afraid of their daily life, and then that, you know, increased risk of deadly harm and then an economic harm. Defendants mentioned the mayor's executive order, or technically her mayor order to collaborate, and said, you know, crime is down. This is not the language of repelling an invasion. The mayor doesn't seem to think that there's the same problem that you do here. And I think that really does make this hard here on the injury side of the house. You know, you know, the mayor is unhappy with out of state troops. She's not really said anything about the D.C. national Guard deploying there, but it doesn't really seem like she is, you know, helping these arguments and saying that there actually is this violation of her police power. So, you know, ended with the judge, you know, taking it under advisement, but seeming to be skeptical on the arguments over the scope of powers and missions, but really worried about trying to find that. That actual tangible harm.
- [56:40]
Benjamin Wittes
Well, I will just say what the National Guard is actually doing in the Dupont Circle area, because I walked out of the Brookings Institution the other day, and I walked up to Dupont Circle, and I found the National Guard, and they were leaning intently over the chessboards of the chess hustlers in D.C. learning how to play chess. And the chess hustlers and the National Guard guys were getting along great, great. And. And I think there's a lot of chess education going on in Dupont Circle. And it's, you know, it's cross racial. It's a beautiful thing. And I just want. I. I got some pictures of it. It was. It was gorgeous.
- [57:25]
Lauren Voss
All right.
- [57:27]
Benjamin Wittes
In the meantime, while we have been continuing their unbroken record of screwing up lawfare live, the federal courts have. The 7th Circuit has issued a writ of mandamus in the middle of our show. Eric, what is going on here?
- [57:50]
Eric Columbus
So this relates to Chicago, where ICE is doing all kinds of things, as always, and not just ICE, rather, but also in large part Customs and Border Protection. And the judge had issued a. Basically an order, in essence, enjoining the government to basically follow the law and not use excessive force and to pursue aggressive actions only where necessary. And this is in a suit that was brought by a group of journalists and protesters, including a Presbyterian minister. And it was kind of the unusual case where you have a. Get a ruling under the Religious Freedom Restoration act in a case involving law enforcement and we've spoken about this at earlier times in our, in our little Friday chats. And recently the government has been accused of just violating the judge's order left and right. And there are hearings held before the district judge, Judge Ellis, I believe she is Obama appointed and Greg Bovino who.
- [59:04]
Benjamin Wittes
Is, who is not to be confused with Dan Bongino, though I know everybody is tempted in that direction.
- [59:13]
Eric Columbus
There's Danny Bongino, there's also Dan Scavino and he. None of the three are related.
- [59:20]
Benjamin Wittes
Although I will point out that Bovino and Roger's hat today have an important, you know, Bovine, it's an important common thread here. Anyway, all of this has nothing to do with the writ of mandamus so far.
- [59:43]
Eric Columbus
So basically the, the judge ordered CBP to make sure that everyone has body worn cameras and to have identifiers on their uniforms that everyone can see and, and that provide her information about the use of force and people arrested on a recurring basis. The part, the only part that CBP felt motivated to appeal was the requirement that Greg Bevino appear in court in person 5:45pm every weekday to report on CBP's use of force each day, day. And the government really didn't like that and sought rid of mandamus from the 7th Circuit. And the 7th Circuit basically immediately issued an administrative stay of Judge Ellis's order to the extent that it required Bovina to appear in person every day. And just now, minutes ago, they issued.
- [60:41]
Lauren Voss
A.
- [60:43]
Eric Columbus
They, they blocked her order. And I got an alert on my phone for it was whenever Kyle Cheney tweets, my phone makes a little noise. And the 7th Circuit said that this puts the court in the position of an inquisitor rather than that of a neutral adjudicator of the party's adversarial presentations. And the court noted this was not something the plaintiffs had asked for and that it sets the court up as a supervisor of Chief Bovino's activities. Activities intruding into personal management decisions of the executive branch. These two problems are related and lead us to conclude that the order infringes on the separation of powers. One interesting thing about 7th Circuit practice, which I think is unusual, but I think they're probably not alone in this, is that the panel in these emergency motions cases, the panel is anonymous. So we do not know which three judges countermanded Judge Ellis.
- [61:45]
Benjamin Wittes
Interesting. All right, we are going to too a radical change of subject. And we are going to go from domestic deployment of the military which has operated, not operated, which has occupied the first 54 minutes of this show, we are going to turn to now all the other stuff, stuff that we have been following this week, and we're going to have to move fast to get through it. Let us start with Justice Department politicization stuff. Roger is the acting U.S. attorney in the Central District of California serving lawfully.
- [62:32]
Roger Parloff
He is not, but he can do almost everything he could have done if he were. So it's not a very powerful ruling, by the way.
- [62:48]
Benjamin Wittes
Just if he's not serving lawfully, how does he get to do all those things?
- [62:54]
Roger Parloff
He's not serving as U.S. attorney lawfully or as acting U.S. attorney lawfully. Lawfully, but he apparently is serving in, in this judge's opinion as first assistant U.S. attorney lawfully. And in that capacity, he can still supervise most of the prosecutions.
- [63:17]
Benjamin Wittes
So, so it's kind of like if, you know, Natalie Orpet, who's executive editor of lawfare, started describing herself as acting editor and chief chief. And, you know, a judge might say, no, she can't do all the things that Witus can do, but she can do almost all the things that WIs can do.
- [63:36]
Roger Parloff
That's, that's right. Now, this is actually, I don't like this opinion. No, this is actually, I mean, this is actually different from the ruling on Alina Haba in New Jersey and the one on Chatta Seagal Chatta in Nevada. They were both disqualified from supervising. Now, all three of these are actually, I think, fairly irrelevant to the Comey and Letitia James cases. Challenges. Excuse me, Palagan. In, in Virginia, all of these cases, the Aseli Chada and Haba are, were pretty obvious shenanigans. There are two different statutes. There's 546, 28 USC 546, which says, you know, when a U.S. attorney attorney position becomes vacant, the AG can appoint somebody and basically that person stays for 120 days. And if in the interim, the supreme, the president has not nominated and had the Senate approve somebody, then the district court decides who the U.S. attorney should be. In all three of these cases, they followed that procedure and they realized that Trump wasn't going to get anybody approved by the Senate. And So on day 118 or 119, they begin to engage in shenanigans and the person suddenly resigns. And then Pam Bondi appoints them in, in essence, to be first assistant. And then they try to use a different statute called the Federal Vacancies Reform act to say the first assistant replaces the, the, the official. That's a broader statute that applies beyond just federal U.S. attorneys. There's a lot of reasons, besides what I just described, that this sort of the scumminess on its face of what you're doing, you're evading the statute. That, that it doesn't really apply. That it doesn't seem to apply. The, the, the. This is a statute where you really. The. The first assistant is supposed to be there. All the judges have ruled so far in place when the vacancy occurs. And it's really when a somebody who has been approved by the Senate either dies or resigns or becomes incapable of holding the office. It's not a way to get around 546. The thing with Comey's case and with Letitia James in Virginia was different because se was appointed Eric Siebert after.
- [66:59]
Lauren Voss
Maybe.
- [67:00]
Roger Parloff
I think, January 21st, the day after the inauguration Siebert was appointed. You're muted.
- [67:10]
Benjamin Wittes
And he was reappointed by the court under the statute.
- [67:14]
Roger Parloff
He goes through the 120 days, and then the district court says, he's a good guy, he's legit, we'll appoint him. And then he goes for another several months, and then he gets in trouble with Trump. And so the thing there is. And formally, of course, it seems that he resigns. It's very clear he's forced out. And Trump says, I want him gone on social media.
- [67:43]
Benjamin Wittes
And Trump, in fact, announced on social media that he'd been fired. Not.
- [67:48]
Roger Parloff
He claimed.
- [67:49]
Benjamin Wittes
Yeah, he claimed. He says he resigned. I fired him.
- [67:53]
Roger Parloff
Yeah. And that may help Comey's case. But if you. You could imagine a case where somebody resigns after four months in those situations because he wants to spend more time with his kids or where he dies. And what would happen then? Can you. Do you start over again at the beginning of 546 with a new appointment and then 120 days. Days. Or is it the district court that. That has to make the appointment the second time around. And I think that's a. It's not so obvious to me from the statute.
- [68:31]
Benjamin Wittes
Right.
- [68:33]
Roger Parloff
And the argument here, I think, is a little stronger for Comey and, and James because it's so obvious that he was pushed out and that may change things. So far in the briefing in the initial brief, that wasn't crisis crucial.
- [68:50]
Benjamin Wittes
Yeah. I mean, I think it's a different matter if Eric Siebert is dead.
- [68:53]
Roger Parloff
Yes.
- [68:54]
Benjamin Wittes
Than if, than if the president fires him because he will not bring a particular case and then seeks to install somebody who will.
- [69:03]
Roger Parloff
The other thing that's extremely different from Comey's case and Letitia James case compared to all these other cases is that. And this favors Comey and Letitia James James is that Halligan was apparently the only person in the room. She's the only person who signed these indictments. So you can't. It's not going to be possible to say other. Other AUSAs. In many of these cases, they were actually indicted before the guy, even before the defendant, before Esale took or Haba became U.S. attorney. You know, they're saying, I can't be. They're just grasping at straws. You know, they're criminal defendants. But in Comey's and Letitia James cases, there's only one person. It was Halligan.
- [70:01]
Benjamin Wittes
All right, so, Roger, who is Judge Cameron Curry and why does she get to review all the grand jury material in the Letitia James and Jim Cony me cases? And how do I get to be her? Because she sounds like she has a really fun job.
- [70:20]
Roger Parloff
Yeah, she was the one that was selected by the 4th Circuit Chief Judge. All of these cases, these unlawful appointment issues of US Attorneys are being decided by out of district judges. And so I think, and I don't really know, maybe Eric. Eric knows. I think it relates to the fact that under 546, the district court can, after 120 days, appoint the U.S. attorney. So there might be a conflict in what, you know, do the judges want to be the one to appoint the U.S. attorney or leave it up to Trump? So I assume it relates to that.
- [71:05]
Lauren Voss
That.
- [71:06]
Roger Parloff
And so the chief judge of the 4th Circuit and decided on Cameron McGowan Curry, who's from South Carolina. And I have forgotten who appointed her, but it was. She's a senior judge and she's just.
- [71:32]
Benjamin Wittes
Appointed to hear these appointments clause motions in both the. In both the Comey and Letitia James cases. How does that get her to the grand jury material?
- [71:48]
Roger Parloff
She. Yeah. And she on her own asked for that, which is interesting. But it obviously relates to what I just was talking about, the fact that Halligan is the only one who signed this. And so it becomes important. Did anyone help her present it? Did she really present it? Because this. I think, I imagine the thinking is if it had been one of these other cases like we've seen, you know, and it obviously was presented by a career person. Do you even have to decide? You know, that may be enough to say you can't dismiss the indictment. She wants to know, how big a role did this woman play, did Halligan play, and therefore whether any harm, any error that occurred would be harmful. Or harmless. I guess that's the way. That's the.
- [72:54]
Benjamin Wittes
All right, so this leads us kind of cleanly into Jim Comey's second wave of motions which were filed yesterday. Comey's case is about a week and a half, two weeks ahead of Letitia James's case. Just because of the speed at which the Justice Department or Lindsey Halligan had to. Had to move to avoid the statute of limitations. I think we can anticipate similar motions to some of these with respect to James. Some of them are unique to Comey as I. There are basically three of them. One is a motion that says please dismiss this because there's not even assuming the facts true as alleged in these indictment. There's no false statement here, both because the question was so ambiguous and because the answer is actually clearly true on its own terms. Number two, you can't indict somebody without telling him what you're charging him with. And it is the. This indictment is completely opaque in terms of what it's. Ask what it's alleging. And so you got to give a lot more information. And then number three, there's a motion that says, look, there's a prima facie case that there's was a real problem in the grand jury where Lindsey Halligan doesn't know anything about what she's doing. She's making all kinds of rookie mistakes. And there's lots of reason to suspect that this spree of errors is going to cause produce dismissible problems. So release the grand jury transcript to us so we can inspect it. Which, if any of these motions which follow Comey's first wave of motions that the unlawful appointment and the vindictive prosecution motion. Which of these motions do you think has legs, if any of them?
- [75:31]
Roger Parloff
I think the. The motion to dismiss on what's the magic words are fundamentally ambiguous question or literally true answers. Those are actually two different things. I mean, it's one motion, but those are two different concepts. And I suspect the easier to prove here is the fundamentally ambiguous question, the easiest to prove at this stage, because we have this weird situation where the question that he allegedly answers falsely is one that is asked in September of 2020, but alludes back to testimony he gave three years earlier in 2017 before a different senator. And Halligan not only misquotes in the indictment the word, but she does not seem to include the fact that the 2020 questions by Senator Cruz were all focused on whether he leaked to Andrew McCabe. And the 2017 questions which were asked by Grassley were really about whether he leaked to Richmond. And in the indictment, they actually don't. In Cruz's questions, he'll say, so he brings up McCabe over and over, and then he says, do you stick by your 2017 testimony? Which is weird because he wasn't talking about McCabe then. And in the Halligan indictment, they cut out all references to McAbe. And so the question arises, I mean, it's ambiguous on its face. I think that for Comey, what question am I answering? It would have sounded like he was being asked about McCabe.
- [77:55]
Benjamin Wittes
Although candidly, I'm not convinced the answer would have been different if he'd been asked about Dan Richmond. He was. He wasn't asked about Dan Richmond.
- [78:04]
Roger Parloff
And the questions Cruz was asking about McCabe were based on false premises. Right. And so you have misquotation questions that are based on false premises, alluding back to other things. You're taking the context away. Apparently, we don't know the. I haven't seen the grand jury minutes, obviously, but sort of on its face, I think that ambiguity is going to be easy to establish. And then because of all this, he also asked to see the grand jury minutes. Com Lawyer Fitz. Patrick.
- [78:54]
Benjamin Wittes
Sorry, Patrick Fitzgerald.
- [78:56]
Roger Parloff
Yes. And by the way, there's a piece of this case that's being handled by Magistrate William Fitzpatrick, so.
- [79:04]
Benjamin Wittes
Because of course, there is.
- [79:06]
Roger Parloff
Speaking of ambiguity. But anyway, so I think that's a very strong case. Also, what's sort of interesting is the dog that didn't bark here and here I'm speculating a little, but at the arraignment, Comey said that in the second round, he might bring a outrageous government conduct motion. I think we may still see that. I think he wants to get the grand jury minutes, and then maybe if they verify his hunches, we'll see that motion. Because it will be interesting to see how they navigated the. This ambiguity before that grand jury. Did they tell them all about McCabe or not? And these sorts of things.
- [79:52]
Benjamin Wittes
Yeah. So I want to ask you, I did my column about this this morning, but it seems to me that there's two ways to look at this set of five motions. One is as five individual motions, and the other is as reflecting the pretrial Comey defense. That is, this was vindictive and, you know, sort of outrageously vindictive. Lindsey Halligan had no idea what she was doing and was illegally appointed. And by the way, the indictment doesn't specify a crime. And also, it doesn't really tell us what it's alleging. And I'm curious. I have never seen a group of pretrial motions that are collectively as devastating to a case as this one. And understanding that the government has not yet responded to any of them, though, that's going to start on Monday. How do you answer this set of motions?
- [81:02]
Roger Parloff
Yeah, I totally agree. It's going to be something to behold if I can just. There's a piece that I think we also. You're right. All of these motions mention each other.
- [81:22]
Benjamin Wittes
I mean, it's an interlocking set of defenses that tell the story.
- [81:27]
Roger Parloff
And I think one other. And the interesting thing is, even though I would like to see this dismissed because of vindictive prosecution, which is what it is, some of these other motions may be much easier way. And, and for certainly an appellate judge and, but even for this judge, the, the other thing we should discuss is that in part, remember this. The indictment comes down, find or hand it up five days before the statute of limitations runs out. This is also part of the picture of this, you know, mad dash to get him indicted, you know, appointing Halligan. Five days later you get the indictment. Five days later, it runs out. If one of these wins, it's, it's not quite true to say, okay, the. Now the statute has run because there is a statute of limitation. There is a statute, 18 USC 3288 that tolls the statute. Not only tolls the statute once the indictment comes down, but when it's dismissed, it says you would normally get six additional months, calendar months in which to bring a new indication indictment. So I think he's combining all of these to say, when you do dismiss it, you should dismiss with prejudice, given the whole outlandish picture. I've drawn the abuse them the six.
- [83:06]
Benjamin Wittes
Months because they had three days. And yeah, it would be. You give them the six months, you're giving them a windfall from.
- [83:14]
Roger Parloff
Exactly. You're, you're, you're, you're rewarding this outlandish behavior.
- [83:21]
Benjamin Wittes
All right, we got a few more things to get through. The Justice Department is now scrapping reference to January 6, mob violence in its briefs and getting rid of people who use such inappropriate language. Roger, what's going on?
- [83:43]
Marty Lederman
On.
- [83:44]
Roger Parloff
Yeah, I'll try to do this quickly. Taylor Toronto was somebody that was part of the capital. He stormed the capital on January 6, entered the capital. He was actually at the speaker's lobby when Ashley Babbitt was killed. He was not. They did not arrest him immediately. And then in 2023, he was arrested on some new federal crimes. And that's when they charged him with all of those crimes the January 6th and and and the new crimes included that Trump had tweeted out a he had retweeted a Phyllis Schlafly passage from years earlier that contained or purported to contain Obama's home address. And this fellow, I think he reposted the truth social Trump's truth social thing. And then he went to that address in a truck with lots of firearms arms with a number of firearms, including some illegal firearms. Well they're all illegal in D.C. but anyway, so he was charged with all of these. He gets pardoned and that takes away January 6th. But he's convicted at bench trial of the second several of the second wave of crimes. So in the you know, in a sentencing memorandum you tell the whole story story and they told briefly, very briefly in fact they mentioned that he participated in January 6th and they also mentioned that it was Trump's tweet that led him to go to the this address with the weapons. And they wrote on January 6, Thousands of people comprising a mob of rioters attacked the US Capitol, blah, blah, blah, blah. Toronto was accused of participating in the riot. After the riot he returned home where he promoted conspiracy theories about the events of January 6, 2021. Then political reports Kyle Cheney and Josh Gersten Gerstein I think Josh is the first author that the two two AUSAs have been placed on administrative leave. Then we see a new US Sentencing memorandum arrive on the docket and it simply cuts out that paragraph I read and the reference to Trump's tweet. Then we notice that the first and and Kyle and and Josh report this. The first memo has disappeared from the docket. And at the sentencing Judge Carl Nichols, who is a Trump appointee and a Clarence Thomas clerk said praises the pro original prosecutors and and says whereas I just didn't order this original one sealed. How did that happen? And apparently it it seems from Josh and Kyle's reporting that a clerk was sort of tricked into do they told him oh, that was an administrative error of some kind. We didn't mean to file that one into removing it. And so now Judge Nichols has ordered them to explain why the why they seem to want to seal the original filing. But it's all exceedingly, it's outlandish. It's really creepy and good for Judge.
- [87:52]
Benjamin Wittes
Nichols for you know, for not tolerating that kind of behavior from the Justice Department and for calling out appropriate prosecutorial behavior in a case like this. That is Judge Nichols has, you know, taken some positions that including with Respect to Rogers favorite obstruction statute that are relatively outlying on that court. But he's also sat on a lot of cases and done a very good job on some of the January 6th cases. And I just think we should acknowledge that he's behaved like a judge should in this situation. All right. Meanwhile, the President has found some new people he wants indicted. Roger, who are they? And I assume they've all committed grievous felonies, right?
- [88:53]
Roger Parloff
Yeah. So on October 29, in a social media post, he has told us he wants to target the FBI agent Walter Jardina, who has already.
- [89:07]
Benjamin Wittes
That's the same Walter Giardina who has, like, 20 years of service and whose wife was dying of cancer when they fired him.
- [89:16]
Roger Parloff
Yeah, that. That's the Jardino used to.
- [89:19]
Benjamin Wittes
Used to be Cash Patel's pilot. Right.
- [89:22]
Roger Parloff
I'm mixed up. There were several highly decorated FBI agents and veterans who were all let go, and I'm not sure if he was the pilot or not.
- [89:34]
Benjamin Wittes
Okay, well, he's definitely the senior FBI guy whose wife was dying of cancer, and that didn't stop anybody from firing him.
- [89:47]
Roger Parloff
Yeah. And then Jack Smith, Lisa Monaco, Andrew Weissman, some of the old, old favorites. Jay Bratt, Norm Eisen. And he says of him, fake of his. Actually, Norm Eisen is one target, and another target is fake charity crew. So I think the thing to expect there is that tr. That he'll be going after their 501c3 status.
- [90:14]
Benjamin Wittes
Although my recollection is that Norm is not associated with crew anymore. I got to say, I'm. I'm. I have a little bit of Brookings FOMO here. I mean, mean, if President is saying go after Norm, and he's not saying go after Wittis, I feel like I let people down here.
- [90:33]
Roger Parloff
Let's. I'm going to move on. Christopher Ray Merrick Garland, Thomas Windham. Uh, anyway, so some very fine choices, certainly. Then the next day, he named Biden himself. He says he is a criminal and should be in jail. A major low life and failure. An ugly person both inside and out. I beat him badly and love watching him squirm.
- [91:03]
Benjamin Wittes
So I will just point out that you live by presidential immunity, you also die by presidential immunity. There is not really any. You know, there's not. Nothing Joe Biden is alleged to have done is not within his official capacity as president and thus protected by the Supreme Court. Leaving aside whether any of it may.
- [91:24]
Roger Parloff
Be criminal, one last thing I do want to. Before you leave me, I do want to thank Greg Bevino for loaning me this adorable hat for this evening, for Halloween.
- [91:39]
Benjamin Wittes
I think that's an important addendum. All right, Eric, let's talk about federal personnel. Who is Shira Perlmutter, and why does the Supreme Court have to think about her?
- [91:57]
Eric Columbus
Shira Perlmutter is the Register of Copyrights. She's the head of the US Copyright Office, which is part of the Library of Congress. She was appointed by the Library of Congress in 2020. And this is she was then fired. I think it's September, I'm not sure, maybe been August by some combination of President Trump and Todd Blanch, who Trump purported to name as the acting Librarian of Congress. And she lost a district. She sued to challenger firing. She lost district court. She prevailed the D.C. circuit, and now the Supreme Court, the D.C. circuit, the Department of justice, rather, is seeking review at the Supreme Court. This turns in a large part in whether the Register of Copyrights and also Library of Congress, to what extent they are in the executive branch or in the legislative branch.
- [93:01]
Roger Parloff
And.
- [93:03]
Eric Columbus
One kind of odd thing, and perhaps the most interesting thing about here, is the process that DOJ seems to be in no rush to get this reviewed. It was apparently September 10th. She must have been fired in August or maybe even July, because It was on September 10th that the D.C. circuit issued an injunction two to one keeping her in her role. And then DOJ, instead of going straight to the Supreme Court, they sought en banc review in the D.C. circuit, where the conclusion was basically foregone that they would lose, given the numbers of Democratic to Republican appointees. And it seemed like they were in no great rush. So on October 1, the Supreme Court denied DOJ's en banc review request. And then it took DOJ 26 days to go to the Supreme Court to seek a stay pending appeal, which suggests that they don't, maybe not don't care so much about this. And it's interesting to kind of wonder why. One theory is that apparently, from what we've been hearing, that Todd Blanche, despite being named Librarian of Congress, acting Librarian of Congress, is not, in fact, in charge there, and that it's quite possible that the Republicans in Congress actually prefer it remain that way and that they don't really they're so happy about Trump trying to hone in on what they view as their terrain, since the Library is the Library of Congress, at the very least in the title. And also among the things that the Library of Congress supervises and runs is the Congressional Research Service, which is for many decades been doing great nonpartisan work and advising members of Congress and It's possible that's why DOJ is cooperating somehow by slow walking it. There's also some spec. Some indication that Perlmutter was fired because she put out an AI report, a report on AI that was offensive to Elon Musk. This was back in the day when Elon Musk was still a Persona grata in the Trump administration. And it may be that DOJ is not. Doesn't want to be seen or doesn't really care much about carrying water for Elon at this point. And alternatively, it could be that they want to kind of signal to the Supreme Court that there are some things they really, really care about and really want to intrude upon the court's time for. And then there are some where they believe that they're very much in the right, but that aren't worth a five alarm, Five fire alarms.
- [95:58]
Benjamin Wittes
All right, we got a few more things to cover. We have a ruling. Oh, sorry. We have a. Have a hearing on the RIFS litigation in which, I don't know, the TRO got extended, but nothing much else has happened yet. What's going on there?
- [96:19]
Eric Columbus
Well, yeah, well, I was a little bit imprecise in my meeting notes. The TRO actually is now a preliminary injunction.
- [96:28]
Benjamin Wittes
I see. Okay.
- [96:29]
Eric Columbus
And we've discussed this one and also in the past.
- [96:34]
Benjamin Wittes
And which agency is. Is this?
- [96:37]
Eric Columbus
Well, it's a bunch of agencies, and it involves the questions of whether you can do rifts during a shutdown. Both the questions of whether a shutdown is a reason to do a riff and whether you can do the mechanics of a shutdown when the people who should be doing it are riffed.
- [97:01]
Benjamin Wittes
I know.
- [97:02]
Eric Columbus
Not riff, but that they, they're not. They're. That they are furlough or.
- [97:06]
Benjamin Wittes
I know people who are trying to resign and can't resign because the people to whom they have to submit their resignation letters are not, Are currently furloughed.
- [97:17]
Eric Columbus
It's kind of an astounding situation. And, and, and the, the, the judge here basically was like, this is. She basically continued to say, this is just a complete, complete chaos. Just roll out, you know, haphazardly and explicitly intended for political retribution. And, you know, Trump, as always his own worst enemy in litigation or as often, is going around saying, we're going to be shutting down democratic programs and democratic agencies. He didn't use the exact word about the agencies, but things that are in the interests of Democrats. And she rejects all, basically a large array of arguments by the government. She says that government shutdown or the imminence of government shutdown is not a lawful basis for the rif. And you can't actually do a RIF during a shutdown. She knows that on that point, the government didn't even brief a substantive defense on it. We mentioned a couple weeks ago that at a hearing on tro. So the government counsel repeatedly refused to say, refused to mount the defense of whether or not the government's actions on this point were legal, saying they were not prepared to address the merits that day, which is not a great thing to say to a judge. And then at the PI hearing, they raised some arguments, according to the judge, they raised arguments in the first that they had omitted from their briefs. And the judge was sure to note in her opinion that they argued that laying off government workers during a shutdown was, quote, morally the right thing to do. One thing I want to note that was actually not in the judge's opinion, but that was reported in the press, was that the political appointee arguing the case, a man named Michael Velcik, said that the President was elected on this specific platform.
- [99:15]
Lauren Voss
Platform.
- [99:15]
Eric Columbus
He said the American people selected someone known above all else for his eloquence in communicating to employees that you're fired.
- [99:28]
Benjamin Wittes
All right, I don't know what to say to that, but we'll see what the, what the judge has to say to that. Quickly, Eric, we have a ruling in the SNAP litigation today speaking of the shutdown down. What's up with that?
- [99:46]
Eric Columbus
We have actually, we have two rulings kind of back to back. One in court in Massachusetts, one in court Rhode Island. The court in Massachusetts said, look, I pretty sure you guys have the authority to extend the SNAP benefits that you claim up and down. You don't, that you lack authority to extend. And where I'm going to give you until Monday to take a chance to explain to me whether you actually are going to do that or whether. And kind of strongly hinting that she would enjoin them if they did not. And then that was preempted a few maybe 30 minutes later by a judge in Rhode island who enjoined it entirely and enjoined the refusal to allow the SNAP benefits to continue. This is basically about whether or not not the Department of Agriculture can or must use a contingency fund that was established for the SNAP program in order to continue the benefits through at least the month of November. They may not have enough money. They probably don't have enough money to pay out full benefits. The government has argued, look, it will create, among other things, it will create chaos if we try to pay partial benefits and it will make it hard when things start up again. The judge of Massachusetts noted in response that there is actually a set of regulations for how to administer partial payments. Snap, for those who don't know, is the successor to. Was what we used to call food stamps. It was renamed as Supplemental Nutrition Assistance Program a number of years ago. And it's become a big flashpoint in the shutdown debate.
- [101:34]
Benjamin Wittes
All right, we're going to do a lightning immigration round before we wrap border patrol in front of a federal judge about.
- [101:48]
Eric Columbus
We did that kind of already crack.
- [101:50]
Benjamin Wittes
Covered that.
- [101:50]
Roger Parloff
Right.
- [101:51]
Benjamin Wittes
The Mandamus case in Chicago, right? Yeah. All right, let's skip it then. Roger. Judge Sini is not too happy about a plan to get rid of Mr. Rodrego Garcia to Liberia, which is, needless to say, not his native land by today. There was a hearing, I believe, on Wednesday. What happened?
- [102:18]
Roger Parloff
It was a short hearing. It sort of threw everything off. She held a hearing almost two weeks ago about whether to release him under the Zadvitas dispute decision because the government hadn't gotten very far in any of its stated attempts to send him to, I think Uganda, Eswatini, Ghana. And so on Tuesday, they said, oh, we found somebody. Liberia, they'll take him. We got assurances, diplomatic assurances, so on. So she can't really. The Abrego is still taking the position that the. He has said, I will go to Costa Rica, which was offered to me if I would plead guilty. So they will take me if I plead guilty. I don't know. And. And they say under the statute, when the alien designates a country, they have to give that preference before sending him to completely a country to which he has no connection whatsoever. But in any case, they're going to have to brief all that. They're going to have to brief the ultimate due process question, which is that whether the procedures that the Department of Homeland Security is now using to send third parties to. To send aliens to third countries pass muster under the due process. And there will be a hearing on November 21st. So her.
- [104:13]
Scott R. Anderson
Her.
- [104:14]
Roger Parloff
Her p. Her preliminary injunction remains in effect. Effect. So to prevent the government from sending him outside of the. Outside of the United States or the continental United States, I think. And so he, hopefully he's not supposed to be. And he's got. He's got a, you know, he's got a hearing Tuesday and Wednesday in the. In Nashville in the, uh, criminal case.
- [104:42]
Benjamin Wittes
Criminal case.
- [104:43]
Roger Parloff
So, uh, I, I don't think he's going to anywhere except speaking of which.
- [104:48]
Benjamin Wittes
Judge Crenshaw in Nashville wants to do a private review of government documents that are supposedly privileged that he wants to see and use in his vindictive prosecution motion. Last but not least, what's up with the criminal case now?
- [105:11]
Roger Parloff
Yeah, so he has approved of. He's going to review in camera a lot of those materials, emails and memos with, with an eye to turning them over. This includes some emails between the prosecutor's office in Nashville and uh, the, uh, Todd Blanch's office, the deputy Attorney General's office. It also includes, includes apparently two memoranda that Ben Schrader wrote the former chief of the criminal division in the Nashville office explaining why he was not going to bring this case. And so he will review those. The big rub right now, and it could sort of derail things, is that the people have. The Abrego's lawyers have subpoenaed Todd Blanche personally. Well, not personally, but in his official capacity. But they've him and his principal associate James McHenry and associate Dag Akash Singh. And the government is resisting those. Obviously those are unusual. There are a lot of doctrines that ordinarily in an ordinary case would back the government up. But there haven't been many cases, you know, so vindictive prosecution cases that have got that far. And the judge has already held there was a prima facie find finding a vindictive prosecution in part based on some of Blanche's statements in an interview with Fox News. So if, if the government, if Judge Crenshaw refuses to quash those, it's pretty clear that the government is going to try to appeal or mandamus him or at least it's saying it's making noises in that direction. And I don't know if Ben is muted.
- [107:36]
Benjamin Wittes
And when is the hearing on this?
- [107:38]
Roger Parloff
Oh, okay. November, Tuesday and Wednesday, November 4th and 5th. And we have Anna Bauer there.
- [107:48]
Benjamin Wittes
We are going to leave it there. Roger Parloff, aka Mr. Bovine, Eric Columbus, aka Alexander Hamilton. Thank you for sticking with the whole show. And thanks also to Marty Lederman, Lauren Voss and Scott R. Anderson, though Scott did not wear a costume. We will be back next week. You know, the stuff will keep coming and we will keep breaking into down for you.
- [108:25]
Advertisement Narrator
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