The Lawfare Podcast

Episode: Lawfare Daily: The Trials of the Trump Administration, Sept. 12

Date Released: September 15, 2025
Host: Benjamin Wittes, Editor in Chief
Panelists: Scott R. Anderson, Anna Bauer, Roger Parloff, Eric Columbus, Mike Feinberg

Overview

This episode of The Lawfare Podcast brings together Lawfare’s senior editors and fellows to break down a whirlwind week of legal and policy developments involving the Trump administration. The discussion focuses on major Supreme Court interventions in cases involving tariffs, immigration enforcement, and executive authority, as well as appellate decisions concerning Trump’s personal liabilities, and dramatic developments in the FBI’s internal politics. The episode’s tone is urgent, analytical, and at times wry, reflecting on the continual stress-testing of U.S. governance and the rule of law under extraordinary circumstances.

Key Discussion Points & Insights

1. Supreme Court Takes Up Tariff Authority: VOS Selections and Learning Resources

(05:03–15:25)

• Scott R. Anderson explains two seminal cases—VOS Selections (Federal Circuit) and Learning Resources (D.C. Circuit)—challenging the breadth of presidential tariff authority under IEPA (International Emergency Economic Powers Act).
• The Supreme Court granted expedited review for both, signaling the high stakes for U.S. foreign and economic policy.
• Scott: “I think this is more a reflection of how the Supreme Court usually approaches these things. They're super, super, super reluctant to grant cert before judgment ever.” (08:22)
• Benjamin Wittes argues the text of IEPA is broad and expects the Court's conservative majority will uphold the President’s authority, but Scott is less certain, citing the Major Questions Doctrine’s potential as a limiting tool.
• Notable Moment: The team debates whether the major questions doctrine applies to core national security powers, noting its application here could reshape the boundaries of presidential authority in economic and foreign affairs.

2. AID Fund Appropriations & Judge Ali’s Hard Year

(15:25–25:08)

• The Supreme Court stayed Judge Ali’s order requiring the government to continue processing foreign aid before congressional rescission deadlines.
• Scott: “This is his very first year as a federal judge…It is a really hard case with genuine questions of first impression.”
• The panel explores the complexities of government budget law, the interplay of the Impoundment Control Act, and the practicalities of bureaucratic compliance with fast-moving court orders.
• The justices’ move is seen as possibly tipping their hand in support of the government or as a holding pattern pending further review.

3. Second Circuit Upholds $83 Million E. Jean Carroll Judgment

(26:02–37:11)

• Roger Parloff details the Second Circuit's decision to uphold a massive defamation judgment against Trump, assessing the likelihood of further appellate review.
• Roger: “The record in this case supports…the degree of reprehensibility of Mr. Trump’s conduct was remarkably high, perhaps unprecedented.” (29:28)
• The conversation covers the constitutional limits of punitive damages and the quirky issue of presidential immunity—debated here in the context of a president’s private conduct versus official acts.

4. Supreme Court Stays LA ICE Injunction (Vasquez Perdomo)

(38:28–49:57)

• Eric Columbus explains the Supreme Court’s summary stay of a district court injunction that barred ICE from targeting stops based only on race, language, job site, or occupation.
• The nuances of Fourth and Fourteenth Amendment standards for “reasonable suspicion” and the Court’s terse handling—contrasted with a blistering dissent by Justice Sotomayor—get close analysis.
• Eric (quoting Sotomayor): “Any Latino who works a low wage job is fair game to be seized at any time…until they provide proof of their legal status.” (47:00)

5. The Guatemalan Children’s Case: Emergency Removal Litigation

(49:57–56:26)

• Anna Bauer reports on hearings concerning the sudden removal of unaccompanied Guatemalan children, government arguments for repatriation, and a judge’s apparent skepticism of DOJ rationales—especially after discovering previous government misstatements about parental consent.
• The segment underscores the humanitarian and due process stakes of rapid executive action at odds with longstanding statutory protections.

6. Expanding Mandatory Detention & Expedited Removal in Immigration Policy

(56:32–62:52)

• Roger Parloff highlights fundamental shifts in immigration policy: expanding mandatory detention to nearly all undocumented entrants and broadening expedited removal, setting up significant conflict with district courts and potential Supreme Court review.
• “This is a big, big shift in long standing practice…People who have been here 15 years…who have children and grandchildren…not eligible for bail.” (57:44)

7. Tumult at the FBI: Firings and Lawsuits

(62:52–70:04)

• Mike Feinberg analyzes lawsuits brought by top FBI officials fired for refusing to execute White House–directed personnel purges, viewing this as a new phase of politicization.
• “They are firing people for refusing to carry out personnel decisions that are clearly in violation of FBI policy and clearly illegal.” (65:00)
• Discussion covers career risks, the chilling effect on future dissent, and the broader fear climate at the Bureau.

8. John Bolton’s Hacked Email: A Mysterious Affidavit

(70:04–79:26)

• The recently unsealed search warrant affidavit for John Bolton hints at a foreign hack of his AOL account, raising questions about how such sensitive SIGINT makes its way into unclassified legal filings.
• Mike: “I cannot stress how rare that is…in two decades of counterintelligence work, I don’t know that I ever saw us get approval for affirmative use of SIGINT…in an unclassified case.” (75:19)

9. Select Agency Firing Litigation: The Fed & FTC

(82:27–91:58)

• Roger and Eric relay developments in litigation over Trump’s attempts to fire Lisa Cook of the Federal Reserve and Rebecca Slaughter of the FTC, bringing the Humphrey’s Executor precedent—and its pending fate—into focus.
• On the Fed: “The statute allows removal for cause…The judge drew line basically saying it has to relate to in-office conduct.” (86:52)

10. Fourth Circuit En Banc on DoJ Access to Social Security Data

(93:13–100:17)

• En banc Fourth Circuit wrestles with how to proceed after the Supreme Court’s cryptic stay, discussing deference, cursory appellate rulings, and the integrity of the judicial process under pressure from the high court.

Notable Quotes

• Scott R. Anderson on the major questions doctrine:
  “If you subject this case and the statutory authorization to the level of scrutiny the major questions doctrine suggests… it becomes a much harder case for the government.” (14:19)
• Benjamin Wittes on presidential immunity:
  “Nixon v. Fitzgerald says the President is absolutely immune from civil liability for conduct within the outer perimeter of his presidential duties...I would think that responding to allegations made in official fora is plausibly within the official duties.” (31:26)
• Eric Columbus on ICE enforcement:
  “Any Latino who works a low wage job is fair game to be seized at any time, taken away from work and held until they provide proof of their legal status...It would be a fantasy to expect that law enforcement could and would inquire whether a given individual was among the named plaintiffs before stopping them.” (47:00, 49:03)
• Mike Feinberg on FBI firings:
  “The people that are being promoted by design are individuals who are not yet eligible to retire and receive their pension. So you're not going to see pushback from those people.” (69:15)
• Mike Feinberg on Bolton’s affidavit:
  “The inclusion of that headline in an unclassified document was really weird… there was some very seriously high executive branch approval for what happened.” (76:15)

Timestamps by Segment

• Tariff Cases and Supreme Court Action: 05:03–15:25
• Foreign Aid and Judge Ali: 15:25–25:08
• E. Jean Carroll 2nd Circuit Ruling: 26:02–37:11
• ICE Injunction and Vasquez Perdomo: 38:28–49:57
• Guatemalan Children Case: 49:57–56:26
• Mandatory Detention/Expedited Removal: 56:32–62:52
• FBI Internal Politics: 62:52–70:04
• Bolton Search Warrant: 70:04–79:26
• FTC/Slaughter, Fed/Lisa Cook: 82:27–91:58
• 4th Circuit Social Security Case: 93:13–100:17

Memorable Moments

• Judge Ali’s Trial by Fire: The panel notes with a mix of empathy and incredulity the intensity of Judge Ali’s first year and the pileup of first-impression cases on his docket.
• Withdrawal of DOJ’s Representation: At the Guatemalan children’s hearing, Anna Bauer reports the government “walk[ing] back” an earlier statement about parental consent, under judicial scrutiny.
• John Bolton’s Hacked AOL Account: The panel unpacks whether the U.S. received the information through friendly intelligence partners, direct hacking, or a strategic disclosure from an adversary.

Conclusion

This episode documents another week in an era of unprecedented legal turbulence, at the intersection of law, politics, and executive power. From foundational questions of statutory interpretation and agency authority to the granular realities of immigration court and the inner workings of the FBI, the Lawfare team’s analysis provides crucial context, skepticism, and expertise for each fast-moving story.

Listeners seeking further details should check out Lawfare’s written deep dives and ongoing expert coverage at lawfaremedia.org.