The Lawfare Podcast: Lawfare Daily – The Trials of the Trump Administration, Oct. 31 (2024)

Host: Benjamin Wittes
Guests: Marty Lederman, Lauren Voss, Scott R. Anderson, Roger Parloff, Eric Columbus

Overview

This episode dives deep into the historic legal battles surrounding the Trump administration, focusing on the Supreme Court's engagement with federalization of the National Guard, significant criminal prosecutions, ongoing controversies over government appointments, and the politicized administration of justice and social programs during a government shutdown. The panel of Lawfare experts breaks down the latest developments from multiple frontlines: the Supreme Court, circuit and district courts, and the ongoing effects of Trump’s legal and personnel maneuvers.

Key Discussion Points and Insights

1. Supreme Court & Federalization of the National Guard

Domestic Deployments and Hot Litigation Zones

• The episode opens with discussion of legal controversies over federalizing National Guard troops in Oregon, California, and Illinois, centering on the interpretation of 10 U.S.C. §12406 (the President’s authority to mobilize state guard troops).
• The 9th Circuit is set to rehear en banc the Oregon case (Oregon v. Trump), vacating a previous panel opinion but maintaining a partial stay that allows the troops to be federalized but not deployed ([04:40–08:25]).

Factual Error in Government Submissions

• Lauren Voss highlights a factual correction in court records: prior reliance on an exaggerated claim that 25% of federal officers nationwide were diverted to Portland, when in fact the actual figure was closer to 4%—potentially undermining the basis for prior rulings ([08:25–10:37]).

District Court Trial Developments

• Voss summarizes ongoing trial testimony, noting judicial frustration at both sides:
  • Plaintiffs focus on post-federalization conduct rather than the initial decision to federalize.
  • Judge challenges the government's slow response to court orders and questions about deployment timing and legal analyses ([10:55–16:56]).
  • Military witnesses assert National Guard deployments are always calming/deescalatory, which panelists challenge with historical examples like Kent State and Louisville ([15:45–16:56]).

Supreme Court Briefing on 12406 – Meaning of ‘Regular Forces’

• Marty Lederman discusses his amicus brief that catalyzed Supreme Court interest in whether “regular forces” means federal military (the Army) or civilian law enforcement (ICE, FPS). The panel critiques how no party had previously researched the legislative history, which clearly leans toward “regular forces” as the professional military ([21:54–27:28]).
  • Quote: “Not a single party on either side has looked at all to what Congress was doing in this statute… I find that kind of shocking.” – Marty Lederman ([27:04])

Consequences for Practice and Presidential Authority

• SCOTUS’ request for briefing suggests the outcome may turn on this reading.
• Lederman refrains from specifying thresholds for Presidential findings, calling attention to the ambiguous standards and urging courts not to rush determination of Insurrection Act predicates ([30:54–37:02]).
  • Quote: “If Congress has precluded the use of the regular military, it follows a fortiori that he can't use the Guard.” – Marty Lederman ([31:10])

2. Other Key Cases and Judicial Rulings

California Deployment Challenge

• 9th Circuit holds the district court retains jurisdiction over new mobilization orders. California likely to pursue another TRO.
  ([41:01–43:04])

District of Columbia v. Trump – Guard & Mayor’s Power

• Hearing focused on scope of mayoral power versus federal authority over D.C. National Guard and out-of-state Guard under Title 32.
• Plaintiffs struggle to establish concrete harm; Judge shows skepticism but is wary of DOJ’s claim of essentially limitless presidential authority ([48:40–56:39]).

7th Circuit Writ of Mandamus – Chicago

• The panel discusses a rare 7th Circuit order against a district judge requiring daily court appearances from a CBP official—a practice the appellate court deemed a “separation of powers” violation ([57:50–61:44]).
  • Quote: “The order infringes on the separation of powers ... sets the court up as a supervisor of Chief Bovino’s activities.” – 7th Circuit ([60:41])

3. DOJ Politicization & Appointment Controversies

Acting U.S. Attorneys – Legal Shenanigans

• Roger Parloff explains maneuvers to circumvent statutory time limits on acting appointments, contrasting the Comey and Letitia James cases (where U.S. Attorneys were forced out for not pursuing Trump’s desired prosecutions) with more clear-cut abuses in other districts ([62:32–70:00]).
  • Quote: “On day 118 or 119, they begin to engage in shenanigans and the person suddenly resigns.” – Roger Parloff ([63:36])

Grand Jury Materials and Role of Appointed Judges

• Judge Cameron Curry, an out-of-district appointee, now holds keys to crucial grand jury materials; she wants to establish how central allegedly unlawfully appointed prosecutors were ([71:47–72:53]).

Wave of Defense Motions in Comey Prosecution

• Panel walks through a multi-pronged defense: ambiguous questions, legally insufficient indictment, unlawful appointment, and vindictive prosecution. The motions collectively paint a picture of a vindictive, botched prosecution—possibly fatal for the government ([72:53–83:20]).
  • Quote: “I have never seen a group of pretrial motions that are collectively as devastating to a case as this one.” – Benjamin Wittes ([79:51])

4. Shutdown Litigation & SNAP/Social Benefits

SNAP Litigation

• Courts press USDA on failure to continue benefits during shutdown, with Massachusetts and Rhode Island courts issuing strong rulings compelling the administration to use contingency funds ([99:45–101:34]).

Federal Reductions in Force (RIF) Litigation

• Ongoing chaos in civil service layoffs: Judge extends preliminary injunction, rebukes government for “morally right” justification and failure to defend RIFs, noting explicitly the political retribution motive ([95:58–99:27]).

5. Justice Department Messaging and Trump’s Retaliation Calls

DOJ Sanitizes Jan. 6 Sentencing Memos

• Prosecutors placed on leave, public records scrubbed, and Judge Nichols rebuffs DOJ attempts to retroactively seal original narrative about Jan. 6 violence, calling it “outlandish” government behavior ([83:43–87:52]).
  • Quote: “It’s all exceedingly, it’s outlandish. It’s really creepy and good for Judge Nichols for not tolerating that kind of behavior from the Justice Department...” – Roger Parloff ([87:52])

Trump Calls for Indictments of Biden Officials, Critics

• Trump targets FBI agents, Jack Smith, Lisa Monaco, Norm Eisen, and even Biden for prosecution, continuing the theme of personal and political score-settling ([88:53–91:24]).

6. Personnel Fights: Library of Congress & Copyright Office

• Supreme Court petition looms over whether the President can fire the Register of Copyrights. DOJ appears to slow-walk the case, perhaps reflecting odd political dynamics between Trump, Musk, and Congress ([91:56–95:58]).

7. Immigration Litigation Lightning Round

Deportation to 'Third Countries' (Liberia!?)

• Judge Sini keeps injunction in place as government tries to transfer non-citizens to non-native countries over their objections ([102:17–104:43]).

Vindictive Prosecution in Nashville

• Judge in Nashville to hold in-camera review of privileged communications related to prosecution, underlying claims of political vendetta ([104:48–107:36]).

Notable Quotes & Memorable Moments

• On Legal History Neglect:
  “Not a single party on either side has looked at all to what Congress was doing in this statute... I find that kind of shocking.” – Marty Lederman ([27:04])
• On National Guard ‘De-Escalation’:
  “That claim that it always deescalates and it’s always peaceful is strange... Kent State is one we can think of.” – Lauren Voss ([15:45])
• On the Flawed Prosecution Motions:
  “I have never seen a group of pretrial motions that are collectively as devastating to a case as this one.” – Benjamin Wittes ([79:51])
• On Appellate Rebuke to Judicial Overreach:
  “This puts the court in the position of an inquisitor… the order infringes on the separation of powers.” – 7th Circuit ([60:41])

Timestamps for Key Segments

| Segment | Timestamp | |---------------------------------------------|------------| | Show intro and National Guard overview | 01:18–04:40| | Oregon (9th Circuit) litigation update | 04:40–10:37| | District court factual disputes & testimonies| 10:37–16:56| | Supreme Court’s ‘regular forces’ briefing | 21:54–29:55| | Lederman’s statutory history argument | 26:42–30:54| | Practical consequences for Insurrection Act | 30:54–37:02| | District of Columbia v. Trump hearing | 48:40–56:39| | 7th Circuit writ of mandamus | 57:50–61:44| | DOJ appointment controversies | 62:32–72:53| | Comey defense motions | 72:53–83:20| | DOJ sanitizes Jan. 6 sentencing | 83:43–87:52| | Trump’s retaliatory social posts | 88:53–91:24| | Library of Congress/Copyright Office fight | 91:56–95:58| | Federal RIF/Shutdown litigation | 95:58–99:27| | SNAP litigation | 99:45–101:34| | Immigration lightning round | 102:17–104:43| | Nashville vindictive prosecution hearing | 104:48–107:36|

Tone & Style

The episode is fast-paced, sometimes wry (with Halloween costumes and quips about Crosby, Stills, Nash & Young), but consistently serious in legal analysis. Panelists use direct, clear language; they often cite statutes and case history, question government logic, and are critical of bad faith arguments or government opacity, reflecting Lawfare’s commitment to nonpartisanship and rigorous legal scrutiny.

Final Thoughts

This episode offers an uncommonly rich and detailed tour of active, high-consequence legal battles across the Trump-era legal landscape. It’s essential listening for those tracking the ongoing implications for separation of powers, federal-state relations, and the durability of legal norms under political pressure.