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- [00:01]
Benjamin Wittes
This fall marks 15 years of lawfare and we're celebrating the only way we know how by gathering our community of readers, listeners and contributors for an in person celebration in Washington, D.C. get your tickets today at lawfaremedia.org 15years.
- [00:26]
Eric Columbus
From mindless tasks to industrial grade AI.
- [00:30]
Scott R. Anderson
To ease of mind.
- [00:32]
Eric Columbus
Supercharge your transformation with Industrial AI. Transform the everyday with Siemens.
- [00:41]
Mike Feinberg
Did I talk too much?
- [00:42]
Benjamin Wittes
Can't I just let it go?
- [00:46]
Anna Bauer
Take a breath. You're not alone. Counseling helps you sort through the noise with with qualified professionals. Get matched with a therapist online based on your unique needs and get help with everyday struggles like anxiety or managing tough emotions.
- [01:00]
Roger Parloff
Visit betterhelp.com randompodcast for 10% off your first month of online therapy and let life feel better.
- [01:17]
Mike Feinberg
You need to resign. If not, come Monday, we will fire you and you will lose your power, attention and your benefits. Or maybe we'll just transfer you to Huntsville, Alabama, where the FBI maintains a campus.
- [01:31]
Benjamin Wittes
It's the lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, with Lawfare public service fellow Michael Feinberg and Lawfare senior editors Scott R. Anderson, Roger Parloff, Anna Bauer and Eric Columbus. In the September 12 episode of the trials of the Trump administration, we talked about the Supreme Court's staying of multiple lower court orders, including on immigration enforcement and the cancellation of foreign aid funds, a federal appeals court upholding E. Jean Carroll's defamation judgment against the President, the politicization of the FBI, and so much more. It is Friday 12th September, 2025. It is 4:00pM in Washington and I am here with Roger Parloff, who is back in Washington from his stint as a Maquillard in the Jura in France. Roger, welcome back.
- [02:41]
Roger Parloff
Thank you, Ben. Good to be here.
- [02:43]
Benjamin Wittes
And Scott R. Anderson and Anna Bauer, our redoubtable senior editors, are here with us as well. Hey, guys.
- [02:55]
Anna Bauer
Hey.
- [02:55]
Roger Parloff
Hey.
- [02:56]
Benjamin Wittes
And we have two new faces on Lawfare Live this week. Lawfare's newest senior editor, Eric Columbus is here with us. Hey, Eric.
- [03:08]
Eric Columbus
Howdy.
- [03:09]
Benjamin Wittes
So Eric is has written for Lawfare before. Some of you know his byline and many of you, I suspect, know his first Twitter and then Blue sky presence. He is a former Justice Department lawyer, a former lawyer for the House of Representatives, and a general man about Legal town, and the newest member of the Lawfare team, Team Eric. Welcome aboard. And we are going to be joined later in the show by the estimable Mike Feinberg, who I don't believe has ever been on Lawfare Live, but Needs no introduction to this group, has been on lawfare programming before. Mike is our newest public service fellow and comes to us from the FBI and we'll be talking various FBI things. But that is all later in the show because we are starting with tariffs. You know, sometimes you guys complain that we don't give enough attention to the tariffs case. Well, today we're leading with it, Scott. The Supreme Court has yanked the tariffs case, granted expedited review. We're going to like it's going to be the fastest thing ever. What's happened? What do we know and what does this say about where the justices may be on the Federal Circuit's striking down of the use of tariffs for purposes of ipa?
- [05:03]
Scott R. Anderson
So it's an interesting development, not at all unexpected. I don't think anyone that has been following these cases and there's two separate lines of cases. Technically there are a few others, but there are two main ones that have kind of come to fruition alongside each other. VOS selections in the Federal Circuit which came out of the Court of International Trade and learning resources in D.C. circuit, which came out of district court and D.C. federal court vos elections. We saw an opinion we talked about I think two weeks ago now in from the Federal Circuit which chose to hear the matter en banc, meaning they jumped right to the en banc phase, basically rejecting the proposition that the AIPA gives the President the authority to install tariffs of the scope he's installing them. He accept they suggest that some tariffs may be permissible but not the scope under which he's installing them, either under the worldwide tariffs or under the fentanyl country oriented country specific tariffs on Mexico, China and Canada that were challenged separately from the global tariffs. Now what's notable about this D.C. circuit, D.C. district Court, excuse me, had reached a similar conclusion but on a different basis. They actually said IPA doesn't authorize tariffs at all as a statutory matter. And notably the two courts had reached contrary jurisdictional conclusions. Court of International Trade and the Federal Circuit concluding yeah, we actually should hear any challenges to this action exclusively in our court because they relate to tariffs. The D.C. district Court said no, actually CIT Court of International Trade does not have exclusive jurisdiction under a statute over this because in fact this is a challenge to IEPA action. I EAPA doesn't authorize any tariffs. And that was their substantive conclusion, their merits conclusion. IPA actually is excluded from authorizing tariffs whatsoever and therefore no challenge to it can be exclusively vested in the Court of International Trade by a statute that says any statute relating to Tariffs. Challenges to a statute related to tariffs has to be in the Court of International Trade. It's a very unfortunately worded jurisdictional statute for this particular dispute. Because I don't think anyone knows what the right answer is. The Supreme Court's going to have to decide because there has to be one when you have exclusive jurisdiction or not. So it's inevitably going to find its way to before the Supreme Court. What's little novel about this is that people may recall after the district court decision in Learning Resources, the private parties there actually petitioned the Supreme Court for certiorari before judgment, basically saying, let's just go straight to the Supreme Court on this. Now, this was months ago and the Supreme Court's been sitting on that request. Now we see the V.O. s election decision come in two weeks ago, and notably, I should say the Trump administration opposed that request at the time. Now we have the VOS selections decision, which is contrary to the administration. The administration very quickly petitions for cert and says, let's do this on an expedited basis. You can read this as being some tension between the two, and I think some people will and have read this as the court showing some deference or favoritism towards the executive branch on this particular issue because of course, they ignored the request for expedited hearing from the private parties, but granted it very quickly on behalf of the government. And then technically they did grant Learning Resources request as well. So we're going to hear both cases together at the same time in November. 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. And they are usually usually highly deferential to the executive branch in foreign relations and national security cases, which this arguably is at least a foreign relations case in particular, but also generally deferential to the government generally on whether to hear matters at all, whether to grant cert and then the scheduling of those matters, how urgent they are, how they bear on policy matters. And the Trump administration was not shy about saying, look, this VOA selections decision is interfering with our policy, even though the actual, you know, tariffs remain in place because the outcome of that decision was stayed by the court pending appeal.
- [08:46]
Benjamin Wittes
But they're, they're right about that, right? I mean, it stayed for a few weeks or until October. But, you know, their entire revenue strategy and their basis of interactions with, with entire swaths of the world is based on the ability to, for the president to wave his magic wand and impose tariffs. I mean, insofar as they have a foreign policy, it's to threaten tariffs against countries. Right. So they're not wrong that, I mean, if you build a foreign policy on this deranged basis, you do. One thing you do get to argue to the courts is that this has foreign policy implications. Right.
- [09:32]
Scott R. Anderson
Maybe I see a contrary argument here, which is that the actual tariffs were stayed. The court could easily have stayed the tariffs further once it granted cert. If it did grant cert again, it was always going to have to grant cert in this case eventually. And then the real question is the expedited procedures. Well, yes, you know, this is arguably disruptive, even though it's not actually disrupting the policy because there's the threat that it will be invalidated the back end. But, but I would note that has always been a threat here. No one thought that these were on super sound legal ground to begin with. So insofar as certain actors are calibrating their responses to take into account the possibility that the Trump administration's actions will ultimately be invalidated, they're still doing that. And I actually don't think this has changed the party's calculus at all. That said, you know, this is the sort of thing the court routinely defers the executive branch on. I think it's usually for a, on average, good reason, even if you can see contrary arguments in this particular case. And I'm not surprised to see the court do that. This all means we're going to get oral arguments early in November. We're gonna have briefing on a fairly quick clip, although not super expedited before then because all these things have already been briefed before. And then I'm assuming we're gonna get a decision before the end of the year, maybe even before the end of December, just in time for Christmas shopping season. So get ready for at least a little price resolution before you have to buy Christmas presents for your loved ones.
- [10:50]
Benjamin Wittes
And how do you game out the voting on this? I mean, at the end of the day, I look at this and I say, you know, I eat is a super broadly worded statute that basically says the president can do whatever he wants in the economic sphere for foreign policy reasons against anybody. And it doesn't say except for tariffs. And I don't see how, except in a very, you know, I, I don't see how a text oriented court comes to the conclusion that the President does not have the authority to issue tariffs for irrational individual reasons that no reasonable person would see as having anything to do with national security. And I, I Say that just with reference to the actual known philosophical and ideological premises of six of the Justices. It's, it's very hard for me not to count to five on this. Do you think I'm wrong?
- [12:05]
Scott R. Anderson
I am a little more dubious of that. I'm, I'm at least, you know, not confident one way or the other, because this is all going to come down to the major questions doctrine and the scope of the major questions doctrine. Remember, this is this court signature doctrine, something a lot of conservative justices have bought into. And the basic premise is that when you have a statutory delegation from Congress to the executive branch and the executive branch uses it in a way that is not expressly or fairly clearly authorized by the statute, that has broad social ramifications and economic ramifications, then you have to subject that to particular scrutiny and be confident that Congress clearly intended to be able to do this. At least on the global sanctions. I think it is on the global terrorists.
- [12:44]
Benjamin Wittes
Nowhere in our jurisprudence have we ever suggested that the major question doctrine applies in, in national security matters, given the broad deference that this Court owes to the President in fields of foreign affairs.
- [13:02]
Scott R. Anderson
It is. That is going to be the contrary argument. And that is where we saw a portion of the Federal Circuit come down on this bipartisan portion. Again, this was not an ideologically split decision. In the via selections at the Federal Circuit said, essentially, look, the minority said, the center said, we think this is entitled to the level of deference you're going to get. But is this a conventional foreign affairs trade is really different from conventional foreign affairs cases because the domestic ramifications are huge. And if you look at the sheer scale of impact about what's being done here compared to other cases the Supreme Court has said fall within the scope of the major questions doctrine. Think about the student loan cases regarding, you know, the COVID related emergency authorities. The scale is astronomically larger than anything else that has already been found to fall under the scope of the majors questions doctrine. So it really puts the major questions doctrine scope. That's the issue is how far can we push this? Are we just going to say, oh, if anything touches outside the United States matric questions doctrine does or doesn't apply? What I will say is that I'm not sure which way this court's going to go on where the limit is on the matrix question doctrine. I think the fact that it's a trade case, not a sanctions case, makes me think it's more likely it does apply. If this were a sanctions matter, it would be less likely and if you subject this case and the statutory authorization to the level of scrutiny the major questions doctrine suggests is appropriate, it becomes a much harder case for the government. So it really all hangs on the scope of that doctrine and how far it goes. And I will say, I think a lot of the statutory arguments and legislative history arguments we've seen both lower courts pull in here about the 1974 Trade act and how we read that in relation to ipa, those enter in a lot more when you're looking for evidence of clear intent on the part of Congress. And they actually do weigh against the government here, I think, in a way that we wouldn't normally in a normally weighted statutory interpretation. But. But major question doctrine deliberately stacks the odds against the government. And all those factors I think will weigh in more. I don't know which ones the Court's going to hang its hat on. I suspect the justices won't fully agree on that, but we'll get there. Now, this is all about the global tariffs. I think the country specific tariffs specifically related to fentanyl, because they are less about economic policy, even on their face, maybe seeing a better chance of being upheld. The global tariffs are expressly about trade policy. You know, and trade is something that is a. Is certainly a foreign relations issue. It's not exclusively a foreign relations issue. So how foreign relations does it need to be for major question doctrine to not to apply at all or weigh at all? That's a hard question for the court. The Court hasn't clarified that it's a new doctrine. We just don't know.
- [15:25]
Benjamin Wittes
All right. Speaking of the Supreme Court, the Supreme Court equally unsurprisingly slapped a stay on Judge Ali's ruling in AIDS Vaccine Coalition. Scott, remind us what the heck AIDS Vaccine Coalition is and how many times it has gone up and down the ladder and, and what Judge Ali did and why we are so unsurprised that the Supreme Court has stayed. You think you're having a bad year, guys? Imagine being poor. Judge Ali. So remind us about the judge on the D.C. circuit District Court who is having the worst year of any of us.
- [16:12]
Scott R. Anderson
Well, it is his very first year as a federal judge. Judge Ali was sworn in, I believe, in January of this year at the very end of the Biden administration. This is maybe the very first patriot.
- [16:23]
Benjamin Wittes
Very quickly he's ever had to hear.
- [16:25]
Scott R. Anderson
It's extraordinary. There's a wonderful profile of him and using him as a vehicle to examine the D.C. district Court generally that's facing the biggest raft of these cases in the New York Times Magazine, I think by Emily Bazelon maybe two months ago, three months ago. I highly recommend it to folks. He's a very interesting guy. I think he's handled this case very savvily given that it is a really hard case with genuine questions of first impression. Not one, but like several questions of first impression implicated by it. But where we were essentially on this case is that, remember, this case had gone all the way to the D.C. circuit panel where they had rejected a preliminary injunction Ali had issued earlier in the case. Because they said, no, the Impoundment Control act is exclusive remedy for appropriations violation, and that means the D.C. district Court lacks jurisdiction. The en banc looked at this on a petition for rehearing and decided not to create the petition for a hearing. But coincidentally, the panel decided to revise its opinion and effectively change its substantive holding. Where they change their holding to say, actually what we were talking about is just about challenges arising from the Impoundment Control Act. If there is a basis for a claim on another statute like the 2024 Appropriations act, that can be a separate grounds from which we'll have to deal with if the plaintiffs raise that note. The plaintiffs did raise that and judged Lee expressly relied on that for that initial preliminary injunction regardless, a legal fiction so that the en banc could avoid having to reverse the panel opinion, which is something the D.C. circuit does not like to do en banc very. It's doing all sorts of weird things en banc this term precisely because of this friction between these conservative panels and the conclusions they're reaching and their views and their desire not to expressly rebuke them, sent the matter all the way back to Judge Ali, who basically then had to issue the exact same preliminary injunction he issued previously. Clarified a couple around a couple of points about rescission to on the basis of the 2024 Appropriations act exclusively and not the Impoundment Control act that was put in Place on September 3rd. Right before that happened, the government introduced a rescissions request for the majority, not all, but the majority of the funds in dispute in this case to Congress, which has 45 days to process. But this money all expires in less than 45 days on September 30th. So this is the government trying to implicate what is commonly known as a pocket rescissions. The government has argued, including in this litigation now quite expressly, that if this money is still around and Congress hasn't acted on the rescission request, once the money expires, that money will then cease to be appropriated, and therefore we don't have to spend it and we win. To prevent that outcome from happening, Judge Ali, or from, I should say, mooting the case, Judge Ali had installed a preliminary injunction that said, government, you need to keep working on processing and obligating these funds up until the September 30th deadline so that if on September 29th, we decide you have to spend all these funds, you can do it by September 30th, and you don't moot out our potential conclusion that you are obligated to spend these funds just because you were not taking the steps to affirmatively obligate them. Again, it was very clearly designed to try and keep everything as neutral as possible so that the courts would have maximum flexibility. But the Supreme Court has stepped in now and stayed that preliminary injunction. I think three things are possible here in this case, which we don't know which one it is and why the Supreme Court, what it was thinking when it chose to stay this preliminary injunction, which does make it raise the possibility that the government, even if it loses, could say, yeah, but we don't have time to obligate all these funds now because we haven't been doing it for the last week and no one's required us to since preliminary injunction is gone. One possibility is the government's tipping its hand. The Supreme Court, I should say, is tipping its hand that it's going to side with the Trump administration and it thinks the plaintiffs are going to lose in this case. That's possible, and so that they're not going to have to face that outcome. A second possibility, the Supreme Court just hasn't fully wrapped its head around what exactly this preliminary injunction was intended to do or why. I found this doubtful because Judge Ali has been very clear about this and is very express about it, but I wouldn't rule it out entirely as a possibility. The third possibility, which I lean towards, but I'm not 100% sure, is that there were two possible grounds the parties raised, one about the court's inherent equitable remedies and another about a statute enacted shortly before the Impoundment of Control act, intended to preserve the availability of funds that were subject to litigation at the time the parties have put forward. Hey, both of these are grounds by which, even if the courts don't resolve this matter by September 30, the courts can obligate the government to keep that funding available until the resolution of this litigation. And therefore, we don't actually have to firmly resolve this by September 30th. Judge Ali, very understandably, I think, said, I don't want to rely on those at this stage. Let's just do the preliminary injunction and keep the government working on this. I suspect the reason he didn't want to rely on them is because they raised clear separation of powers concerns and they've never been vindicated by the Supreme Court, Even though the D.C. circuit has suggested that they're both valid or at least, at least the equitable remedy is valid. I don't recall whether they had specifically weighed in on the statutory remedy. Well, the statutory remedy, in my mind, is more persuasive because of that separation of powers concerns. So it's possible the court is tipping its hand instead that it thinks one or both of these remedies are likely available. If we get to the point that the government loses and the money cannot be spent purportedly by September 30, then they will use one of these remedies to say, no, actually, the money doesn't need to be spent by September 30th. You've got extra week or two, whatever time you need. Government, until we resolve this dispute with finality. We don't know which of those that is because Supreme Court didn't explain itself on this particular matter. We don't know what the basis of it is. Did say that the parties, the private parties, not the government, are intended to file a brief today. I did not see it filed last time I checked, but I haven't checked the last hour or two. And then we make it Supreme Court additional motion on all that. They will have to issue some sort of indication before September 30th. So I suspect in the next week or 2, we'll have clarity on this.
- [22:09]
Benjamin Wittes
And how much time. If you, if you imagine that we want, we want the ability for Judge Ali and then subsequent appeals to on September 29 say, you must go ahead and process this money and obligate this money. How much time does the government need in advance of September 29th to be in a position where it is, where it can comply with such an order? Well, does anybody know the answer to that?
- [22:48]
Scott R. Anderson
Well, the State Department has actually specifically represented in this litigation an answer, and they said it was going to take them 45 days, weirdly, the exact amount of time that the Impoundment Control act gives Congress to act on a rescissions request, which I don't think was entirely a coincidence. But regardless, they said, hey, look, we need to start obligating this stuff on August 15th if we're going to pay it out by September 30th. And they said this actually months ago in this litigation. And Judge Ali has structured his preliminary injunctions all around that timeline. And he really made, he's made this point time and time again, including a very sharp footnote in this latest preliminary injunction, saying, and the government is complaining about it's the fact that it is somehow unable to do a resistance request or complaining about this timeline. Now, this timeline is a timeline of their own making. They could have made a rescission request months ago. They could have sought to appeal my preliminary injunction months ago, which the government actually did not seek to do. They let it stay in place for a very, very long time. The subtext of that, I suspect, because they were planning to lean on the pocket rescission theory, which did not come into play until 45 days out from the deadline. So this is a timeline of the government's own making. We take it on their face, the representations then the time that they have not for this week, since September 8th, up till today, they have not had to be processing these unless at least they haven't been compelled to do so by the preliminary injunction. That means they may be five days less of worth of obligated funds that will be available even if they decide they are going to lose. And every day that passes, that's less and less and less us. And presumably that is the harm to the government that they sought to stay for. They're going to say, well, look, the court's directing us how we handle our obligations day to day and directing us to obligate these funds that we may not have to pay out. That's a big waste of government resources. And the Supreme Court has suggested, it has been very sensitive to the suggestion that micromanaging an agency and forcing an agency to do things it doesn't otherwise have to do actually is a real cost to the government. They've weighed that very heavily. But in this case, it could also moot out the argument, even on the merits, and that would be a real problem. That's why I think the Supreme Court has to have, unless it's already decided, hey, this is a debt on arrival. The government's in the right on this. I think it has to be open to some of those equitable or statutory remedies, or else it is rendering itself moot because its decision is someone that even if it decides before September 30, the government just genuinely may not be able to comply with by its own timeline.
- [25:08]
Benjamin Wittes
All right, we will keep an eye on this. Speaking of things that the audience often reminds us that we need to check in on. The Second Circuit Court of Appeals this week handed down its opinion in the $83 million Eugene Carroll case, upholding the judgment in some contrast to the holding in the from the Appellate Division of the New York Supreme Court in the in Letitia James's suit against the Trump Organization. Roger, what did the 2nd Circuit find and what do you make of it?
- [26:02]
Roger Parloff
Yeah, this is, as you said, this is the $83.3 million verdict. This is called Trump. I'm sorry, Carol 1. Roman numeral 1. So this was the first case filed in 2019, and this was the Bergdorf Goodman incident. It was just defamation at this point. She was A New York magazine article came out which excerpted a forthcoming book in which she described this incident in the Bergdorf Goodman fitting room. Digital penetration by Trump. And he responded with a series of. She also alleged penile penetration as well, but later on a jury will reject that. Anyway, it's filed as a defamation case, but he is president and he a series of defamatory statements that she is has fabricated this in order to sell the book for political reasons, for other things. There's also the line about she's not my type, which was not one of the alleged defamations, but it figures in that's this case. It's because of a slew, because he's president. There are a bunch of potential problems. And he raises an immunity question called Westfall Act. It goes off and is bounced around in courts for a while. And then Carol 2 is filed. That's when the New York State enacts a law after the MeToo movement that permits adult women who have been raped in the past or had other sexual abuse to bring a suit for a window of time. She brought a new suit. He makes new defamations. That's Carol, too. Carol. He's not president by then. It's a simpler case that goes to trial first. That's the $5 million verdict that's been upheld. That was upheld last December by the 2nd Circuit, and rehearing was denied in June. So this one then goes to trial and it's the big one in terms of money. It's, it's a unanimously upheld per curiam. All the judges are Democratic appointees. So unanimity may not, you know, mean what it might otherwise mean, given everything. I, I think the issues that, you know, we need to look at, some of the issues are state law issues. So I don't think the Supreme Court can get involved on those. And so I don't think we need to really spend much time on them. The ones that are conceivably federal issues. One is just the size of the punitive damages. It's very unusual. The compensatory were 18.3 million. The punitives were 65 million. So that's 3.6 to 1 ratio punitive. That's very high. The Supreme Court has implied that more than 4 to 1 is probably per se unconstitutional. Sometimes in some cases more than one to one will be unconstitutional. If it's grossly excessive. The court here upholds it. Says the record in this case supports the district court's determination. That's Lewis Kaplan. Below that. The degree of reprehensibility of Mr. Trump's conduct was remarkably high, perhaps unprecedented. He's talking not just about the attacks on her, the nature of them, but that they were continuous over five years, they accelerated over time, and that nothing could stop them. They went on during the trial and so on like that. So that is the first conceivable issue that could go higher and that, and.
- [30:26]
Benjamin Wittes
That would just be an extra. A, a straight 8th amendment excessive fines case.
- [30:31]
Roger Parloff
No, it's a due process. I think they.
- [30:35]
Benjamin Wittes
Excessive fines as incorporated through due process. Right.
- [30:42]
Roger Parloff
Maybe so I, I've thought of it as a due process. Okay.
- [30:46]
Mike Feinberg
Would be.
- [30:46]
Roger Parloff
Right. I'm not sure the other is there that he did raise a presidential immunity issue. Yeah.
- [30:57]
Benjamin Wittes
Why isn't all this, all this is conduct from when he was president.
- [31:00]
Roger Parloff
Yes.
- [31:01]
Benjamin Wittes
And V. Fitzgerald says he should be immune. I don't understand why this isn't. I mean, the, the opinion seems to imply that it was all waived. How could his people have waived that?
- [31:14]
Roger Parloff
Alina Haba was his lawyer at that stage.
- [31:19]
Benjamin Wittes
I see.
- [31:20]
Roger Parloff
That's. But they, they chose to. Yeah. The, the other thing is, and, and.
- [31:27]
Benjamin Wittes
For those in the, in the audience who are wondering, Nixon v. Fitzgerald says the President is absolutely immune from civil liability for conduct within the outer perimeter of his presidential duties. And I would think that responding to allegations of. Made an official fora against him is more plausibly within the official duties of the president than, you know, telling Justice Department officials to, you know, to try to flip the Georgia election. But, you know, what do I know?
- [32:14]
Roger Parloff
It's, it's one of those, it's an open question. It was never decided in the Clinton case. Clinton, Clinton versus Jones or. And when the president denies.
- [32:28]
Benjamin Wittes
Right.
- [32:28]
Roger Parloff
That President, something he did beforehand, that's obviously has nothing to do with the presidency, is that an official act? And so that's open. And so, and so they but he never raised it until December 2023, which was four years into the case case.
- [32:49]
Benjamin Wittes
And the question that the Supreme Court would face really is is this a wavable.
- [32:57]
Roger Parloff
Yes.
- [32:57]
Benjamin Wittes
Immunity or is it something that it kind of doesn't matter if you flub it because it attaches to you and gloms onto you and protects you even if you don't plead it?
- [33:13]
Roger Parloff
That's right. And there's an additional issue which is law of the case because this was actually decided. The question of whether he had waived presidential immunity was decided by the 2nd Circuit in 2023. When he raised it, it went immediately up and it was decided. And in fact I mentioned there's Carol 1 and Carol 2 in Roman numerals, in Hindu Arabic numerals, which is where we put the second circuit cases. There's Carol 1, 2, 3, 4 and now 5 and 6. So Carol 3 and this is now Carol 6. Carol 3 was about this. And so, and he did not raise there some of the clever arguments he's now raising here. Now he tries to argue that Trump versus United States changes everything. There was something in there that, that, that he can use. Nobody can see exactly what he's talking about there. But there is another case which existed at the time of Carol3Helski, which was decided in 1979, I think, which has to do with legislative immunity. And it is very, very hard to waive legislative immunity. There has to be, you know, the speech or debate clause. Immunity has to be explicit and unequivocal renunciation. So that's another also. So those are the ones in this decision also this same case. There's a separate opinion that came down in August on the Westfall act too, because he sort of re raised that and they rejected that in a separate opinion. That's another, you know, conceivable federal issue here if, if a higher court wants to reach out and take this.
- [35:09]
Benjamin Wittes
Right. So how do you game the cert likelihood of this? It seems to me Trump has, I don't mean to be cynical about any of our justices, but there are two or three at a minimum who will grant him cert on request, depending on whether you count Gorsuch among them or not. But I don't know that I quite know how to get to four on this. It does seem like if you're a Trump sympathetic but centrist, one of the, one of the non flag flying or RV driving justices, it does. You could argue that this is just money and he's got a lot of it. Right.
- [36:12]
Roger Parloff
Yeah, I I think that Trump will, he has already sought and bank review on the Westfall question even though it was unanimous. So I think, you know, Eugene Carroll is not young and he will delay as long as he can. And so I think he will go through all of these motions. As far as getting the Supreme Court, it does seem even, even to me, it seems like a long shot. And punitive damages, I'm not an expert, but they haven't, I don't think they want to revisit punitive damages. And I think, think Justice Thomas was actually one of the few that did not think there was any due process limit on, on punitive damages. So I, I don't know. I, I, I think it's going to look, it would look so bad to reach out and rescue him from this one.
- [37:12]
Benjamin Wittes
I think that's probably right. Although God knows, looking so bad has never stopped them before. All right, Eugene Carroll wins one this week. Eric, let's stick with the Supreme Court and talk about Vasquez Perdomo, which is the Los Angeles case that had stood for the rather innocuous position that the, that ice, in conducting raids in Los Angeles, can't do obvious discrimination like stopping people because they speak Spanish or because they look like they may be, you know, I don't know what an illegal migrant looks like, but I mean, it seemed like the injunction was pretty baseline. You can't do obviously illegal stuff that the government claims it's not doing anyway. And yet the Supreme Court stays it. So what do we know about what the Supreme Court did here and why?
- [38:29]
Eric Columbus
So just to, to back that up a little bit, the district court had entered an injunction that had barred ICE from stopping people. Where ICE relied on only four factors, either solely or in combination. The apparent race or ethnicity of the person they stopped, whether the person spoke the person speaking Spanish or speaking English with an accent, the person's presence at a particular location, like a day laborer pickup site or a car wash, and the type of work the person does. And so five men. In June, during the midst of the big surge of federal law enforcement in la, five men who had been arrested by ICE sued, seeking an injunction against relying on those factors alone. And they were joined by a couple of advocacy organizations whose members had allegedly suffered the same union worker organizations. The district court granted a TRO, and the 9th Circuit panel denied the government's motion for a stay, pending appeal. And all four lower court judges were Democratic appointees. And as we have so often seen, the Supreme Court granted this day, give the back of the hand to the lower courts without any opinion of the court. Justice Kavanaugh filed a concurring opinion and Justice Sotomayor, joined by Kagan and Jackson, dissented. So there are basically three issues in the case. First, do the plaintiffs have standing? Second, does it violate the fourth Amendment to stop people in reliance on those four factors without more? And third, if so, is the scope of the injunction appropriate to prevent future violations? And we can take those in order. The Seminole standing. The Seminole Supreme Court case actually also comes out of Los Angeles. In 1983 case called the year 1983 called Lyons, a guy named Adolf Lyons alleged that the cops pulled him over two in the morning and for no reason at all, at some point, point put him in a chokehold. He sued for damages and also for an injunction to say, look, look, LA cops, please don't do chokeholds to me or to anyone except to prevent death or serious injury. And in a 5, 4 decision, the Supreme Court said that Lyons lacked standing to pursue his claim for an injunction because it was just speculation to assert that Lyons himself would again be put in a chokehold. Now, the lower courts here in this case concluded that this is a very different case from Lyons because the chances that Lyons would be stopped for, stopped for, you know, pull over by the cops and then put in a chokehold was quite low. Of those two things happening once. But here this is very different because it's just the question of a stop, not a subsequent action. And the lower courts concluded that there was a realistic threat that these plaintiffs would be stopped once again relying on nothing more than the four factors. One, plaintiff had been stopped twice in the span of 10 days. And there was evidence in the record that ICE went back to the same places repeatedly. And you know, Mr. Lyons at least could try to drive in a way that he would be less likely to be pulled over by the cops. But these plaintiffs couldn't do anything to avoid being stopped by ICE unless they, they chose to just stop going about their lives. And Justice Kavanaugh in his concurrence basically says this is a lot like Lyons. And he just did not address the how the lower courts distinguish Lyons. And in these lower courts wrote 130 pages of opinions to between them and he just, you know, doesn't really engage at all. And Justice Sotomayor's dissent echoed what the lower court said. That's the standing issue, the fourth Amendment issue. Then there is a Supreme court case in 1975, the Supreme Court held that to stop someone for immigration purposes, officers need only Reasonable suspicion to believe that someone's here illegally. Now, that's a lower standard than probable cause. And it's the same standard that's used for, say, a stop and frisk. If the cops come up to you on the street and they want to check to see maybe if you've got a gun or something, it has to be specific suspicion about you personally. It can't be, just can't be generalized. The court also held in that case that the border patrol did not have reasonable suspicion to pull over a car when the sole basis was the apparent Mexican ancestry of the occupants. And basically the Supreme Court said, look, there, there, there are tons of people who look like they have Mexican ancestry, but a relatively small proportion of them are. Are aliens or, and who are here illegally. But there's kind of a indicta for, for some reason, they add another sentence that says, well, you know, the likelihood is high enough to make Mexican appearance a relevant factor. It just can't be the only factor. Now, 25 years after that, or 24 years, the 9th Circuit says has a case where, at a checkpoint in a County where 73% is Hispanic. And the Supreme Court says, sorry, the Ninth Circuit says where a majority or a substantial number of people share a specific characteristic, you can't use that for reasonable suspicion. So you can't use apparent Hispanic ancestry, as in the ninth Circuit, or at least you couldn't at all after that case where when you're in an area that is predominantly or very largely Hispanic.
- [44:33]
Benjamin Wittes
Lower court said on the theory, as I understand it, that it's just not probative of anything there because 70% of the citizens or people who are here legally will also have look like they have Hispanic ancestry, whatever that means.
- [44:53]
Eric Columbus
Yes, 70% of the residents, the people who might be going through the checkpoint.
- [44:58]
Roger Parloff
Right.
- [44:58]
Eric Columbus
The total denominator. So the lower court didn't find those fact four factors enough. They noted that about 47% of the Central district of California is Hispanic. As to the factor of speaking Spanish or English with an accent, they said, look, that's far too common. They had stats that show that, I think in that district, 38% of residents speak Spanish at home and 55% speak any foreign language. The third factor of being in a specific location, they couldn't find any evidence in the record that that was probative. Even if there are illegal immigrants who could be found working there and the type of work, likewise, they found no reason to say that was relevant because types of work, like a day laborers typically include both illegal Immigrants and legal immigrants. And Justice Kavanaugh was, was equally dismissive of these arguments. And, and by dismissive, I don't mean that he thought they were stupid, but he, he literally had just one sentence where he basically repeated what the government's case is and did not engage at all with lower courts and said, look, there's a high number of percentage of illegal immigrants in la. They, many of them don't speak English. They, they gather in certain locations to seek daily work and they often work in certain types of jobs that, that are, are especially specifically attractive to them because they don't require paperwork. And that's it. It was literally one sentence. That was a very long sentence, but it was still just one sentence. And Justice Sotomayor in the Sen. Basically unloaded on this and basically said that 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 to the agent's satisfaction. I would modify that slightly to say that that applies in the Central District. It's not clear whether it would apply in cases elsewhere, but certainly might. Sorry, Central District of California. And she, she pointed out that the, the government and suggested that they had cases where a workplace was known to have hired 100 undocumented folks the previous week and they, they might want to go there. And she said, look, if you want to do that, knock yourself out. It's not covered by this injunction because it applies only to those four factors. And if you have additional factors, then that's not covered by this. There's also kind of a tension between Kavanaugh and Sotomayor in what these stops are like. Kavanaugh used the term brief many times.
- [48:04]
Benjamin Wittes
Brief stops and channeling the Terry stop idea.
- [48:08]
Eric Columbus
Exactly. Yes. Of a stop and frisk. But as Justice Sotomayor noted, and there are these, these ideas and the record has as evidence of they're hauling people away and taking them to other locations to check their, their, their documents, maybe where they have better databases to, to verify or better equipment to see whether documents are forgery and taking them away for maybe half an hour, take them away from work, presumably they may not be getting paid for that time. And in some cases the allegations are that the ISA agents have been rather violent in apprehending people. I mean, certainly we've seen that in videos all around the country and in some of these allegations here in this case were that. And to which Kavanaugh says, well, you know, look, if that's a separate issue, if you want to file an excessive force claim, go, you know, deal that somewhere else. And so, I mean, this is, this is like just, you know, again, this, this, what we've seen over and over again, this kind of. Sorry, before I get to that one, the last point, just which Kavanaugh did not get to, was this scope of the relief. The government says you can't have a district wide injunction. It's just like the nationwide injunctions that we've seen that this court has, has, has recently frowned upon and did not address that. Sotomayor said it's very different. It's just district wide. This case is brought in this district and there's absolutely no way to have an injunction that applies only to the plaintiffs because as the district court put it, it would be a fantasy to expect that law enforcement could and would inquire whether a given individual was among the name plaintiffs before starting stopping them.
- [49:57]
Benjamin Wittes
All right, let us turn to the other big case, immigration case that happened this week, which was the Guatemalan children case. And this started in front of Judge Sparkle Sipnanon, but it transferred this week to Judge Tim Kelly. There was big hearing on Wednesday. You were there or you were there, virtually what happened.
- [50:36]
Anna Bauer
Yeah. So this is the LGML case, which we are now calling the Guatemalan children's case. This is the case that arose over Labor Day weekend when the government, in the middle of the night and with, with only an hour or two's notice, began to make an effort to remove minor unaccompanied children to Guatemala. That was Judge Sukhnen who put a stop to it, who was the emergency duty judge. But it now is before Judge Kelly, who is a Trump appointee, who held a hearing this week on Wednesday on the plaintiff's motion for a preliminary injunction, which would potentially, if granted, extend the order to stop these removals while the litigation continues. There's also, as a part of this, the question of whether a class should be certified. At first, the plaintiffs were seeking, you know, just to certify a class that included unaccompanied minor children who are of Guatemalan origin who are in the custody of the Office of Refugee Resettlement, which is the Department of HHS that is in charge of the custody and care of these children. However, it has since expanded its request to include, you know, all unaccompanied minor children in the custody of ORR because of developments that occurred a week after Judge Suganon entered her temporary restraining order, in which it became clear that the government may have been make taking steps to also remove children who are from Honduras and El Salvador. So we get to this hearing on these issues. Roger and I covered it. I am going to try to go through this quickly because we have so much more to get to. We have a piece that Roger and I wrote that's up on the site covering the hearing. I also wrote a piece of that really details all the background of this case. But during the hearing, you know, Judge Kelly, I think, made it clear that he was making an effort to take the government's argument seriously. The government's argument is essentially, you know, even though there is this whole corpus of law that protects these children by, put it, by stating that they have to be put in removal proceedings. Despite that, the government is saying there's a separate authority under the statute that gives the Office of Refugee Resettlement duties and responsibilities with respect to the care of these children. And one provision says that one of those responsibilities is reunifying children with parents abroad where appropriate. The government is reading that provision as a kind of independent authority to repatriate children to their countries of origin where they have parents, regardless of, you know, whatever the other statutory protections might say related to immigration. Judge Kelly was taking this argument, I think, seriously and thoughtfully. But as the hearing proceeded, it seemed to me that it was very clear that he was not buying that argument. You know, he had a lot of questions about where has the government ever made this argument before? Because it is quite clear that the government has not relied on this provision before to mass support unaccompanied children. I will say that one thing that I get the impression from coming out of the hearing is that maybe he has some questions about to what extent he should certify a class and to how broad that protection should be. But one other thing I will mention that was interesting coming out of this hearing before I wrap up is previously we had Drew Ensign, who is, you know, a well known figure for our listeners in these immigration cases. He's the guy who was before Judge Boasberg and jgg, who allegedly made misrepresentations to Boasberg about flights that were leaving in the AEA case. Place in that, in that, in those circumstances, in before Judge Sup Nanon, he made the representation that all of these children were kids whose parents had requested that they return to Guatemala. Well, before Judge Kelly, he asked Sarah Welch, who was representing the government this time around, she's a DOJ official who's a former Jones Day corporate lawyer. And so he asked about this, this representation that was made because it never appeared again in the government's briefs. And when he did, she said, I can't represent anything to that effect. And he said, well, should I treat it as withdrawn then? And she said, yes, you can treat that as withdrawn. I can't affirmatively represent that. That is correct. So it became clear that that was not an accurate representation that DOJ Judge Suknan and, and then they have now walked that back. Roger, you were there as well. Do you have anything to add to all of that and what was your impression?
- [56:26]
Roger Parloff
No, I think that that does it. That that does it. Well.
- [56:32]
Benjamin Wittes
JUSTICE all right, Roger. We have a decision in the matter of Yohuri Hurtado in the BIA case which expands the mandatory detention of aliens, challenging their removability. I confess I was unaware of a case in before the Bureau of Immigration Appeals looking to expand mandatory detention. What on earth is this case? And, and should I have had my eyes on it all the time?
- [57:15]
Roger Parloff
Well, this is, and I'm going to do this broad brush. This is an important case to immigration lawyers. And I, I actually have, there have been cases pending on this same issue. This is a big, big shift in long standing practice. And you know, the Trump administration has been pushing several enormous shifts. And this is one of them. This would, you know, some, I'll say illegal aliens because that's what the government now says are subject to mandatory detention if you catch them. They don't, they aren't, they can't get a bail hearing, others get a bail hearing. And this just says no, long standing practice was wrong. Almost everybody that enters without inspection is subject to a mandatory detention. It's, and, and, and so this would mean people that have been here 15 years, you know, who have never committed a crime, who have children and grandchildren who are US Citizens and they get arrested and, and they're, they can't, they're not eligible for bail while they protest. So this is a big issue. I'm going to sort of leave that one there because it's very gnarly and I'm not an immigration lawyer and I hope that, that there is a practice advisory that actually came out yesterday by the American Immigration Council about this case. They say that there are 29 district courts across the country that have rejected this theory, including two since that ruling, which was just a week ago. So this will be hotly discussed and there's hotly debated and it's a, there's a class action out of the Central District of California. So we'll hear more about it.
- [59:34]
Benjamin Wittes
All right, so we had another decision this one denying a stay at the D.C. circuit of, uh, Judge Jelani Cobb's preliminary injunction in an effort to expand. The theme here is expansion, right? Expand mandatory detention. And here the government is trying to expand expedited removal procedures. So what's going on here?
- [60:03]
Roger Parloff
Yes, and again, I'm going to do this broad brush. I won't do it justice. But actually there are two cases in front of Jia Cobb. One is called make the Road. And on late August, she and in both, both of them involve expansions of the use of what's called expedited removal. So there are two ways to remove people and typically one is called section 240. That's sort of the normal one that you've heard of with an immigration judge. An appeal to the bia, an appeal to the Court of Appeals. This one, there's almost no judicial involvement. Expedited removal. And it was originally used. It was authorized in 1996 and it was originally used, you know, like you capture somebody 25 yards over the border, do you give them all the rights that you know, or can you just take them back to the border, basically. And, and, but the statute that authorizes expedited removal, Expedited removal might take, take a few days. It might take hours. It could be done in hours. The normal process is weeks and months. But the statute that authorizes it is potentially broader. It wasn't applied broader, but it was potentially broader. And now this Trump administration, no, we're going to do it as broad, as conceivable as the statute says. So that would mean anyone who cannot prove they haven't been here over two years and anywhere in the country you could be, you know, and the fact that you can't prove you've been here more than two years doesn't mean you haven't been here for 15. And you aren't going to get the procedures. It's so quick. You may not be able to prove that you have been here two years, even if you have. So these are important. She has tried to stop two expansions and both are being appealed to the D.C. circuit. And the government is saying first of all that she obviously, that she got it wrong. But they're also using some jurisdiction stripping provisions that you can't use injunctive relief for this kind of thing at all. So these are, these, I think they're important case. I just wanted to have the readers be aware of them, the listeners. The other, the other case is called Coalition for Human for Humane Immigrant Rights versus nome. And so we'll Hear more about those.
- [62:52]
Benjamin Wittes
All right. And yes, I did misname Judge Cobb, who is Jia Cobb, not Jelani Cobb, Bob, who is a New Yorker writer. All right, Mike Feinberg, let's change gears and talk about matters FBI. Three of your former colleagues have just sued the director of the FBI and others alleging the improbably, in my view, that they are so obsessed with their social media presence that it's getting in the way of their performance of, you know, things like running the federal government. One of these miscreants is a former acting director of the Bureau. We've talked about him on the show before. Mr. Driscoll, what do you make of this lawsuit? And what, more importantly, what should I make of this lawsuit?
- [64:01]
Mike Feinberg
This is marking a turning point in terms of how aggressively the senior leadership of the FBI, namely Patel and Bongino, and as of now, the second deputy director who I believe reported for work this week, they're really getting more aggressive in their sort of ideological, hierarchical purge of the senior executive service ranks of the organization. What has been happening and what has been widely reported on by people like Adam Goldman over the past six to eight months is that when there was somebody they wanted to push out, they would essentially call them on a Friday, say, you need to resign. If not, come Monday, we will fire you and you will lose your pension and your benefits. Benefits. Or maybe we'll just transfer you to Huntsville, Alabama, where the FBI maintains a campus. This is the first time we're seeing them actually terminate people's employment. And it's the first time that we are seeing them do so not for reasons of what the individuals investigated in the past, although there is some of that here. Here. What we're seeing is they are firing people for refusing out, for refusing to carry out personnel decisions that are clearly in violation of FBI policy and clearly illegal. There were a number of line employees under Driscoll and Jensen, respectively. The assistant director of the Critical Incident Response Group and the Assistant Director and trust charge of the Washington Field Office, who were believed by Patel or the White House to have been involved in investigations against Donald Trump. The Jensen and Driscoll were told to fire these people. Jensen and Driscoll refused, and so Jensen and Driscoll themselves were fired. The case against Evans is a little bit more nuanced. He appears to have been fired because he was one of the senior human resources executives at the time the COVID vaccine policy was being enforced. But what all three of them have in common is that they have been fired for explicitly following FBI policies that conflict with the directors and the White House's personal wishes.
- [66:49]
Benjamin Wittes
And is your impression that. I mean, so far we have seen very few people contest their dismissals. You've spoken publicly about the circumstances of your departure, and you're kind of the only one. Do you take this as a sign that other former bureau people are starting to speak out? Should we look at this as the thin edge of a larger wedge? Or is this three just very egregious cases where, you know, candidly, one of them is a, you know, former were head of the Bureau, if only for an hour and a half, and did service under circumstances that were very widely admired in the Bureau. And so has a. A degree of. I don't know if it's political capital. Political capital that other people may not have. How do you read it with respect to what it says about where others are, about speaking out, about taking legal action, etc.
- [68:11]
Mike Feinberg
So I'll say a couple of things. These three plaintiffs are materially different from everybody else who has left the FBI under what I will politely refer to as strange circumstances that they were fired. Everybody else has resolved, resigned. They have resigned under threat. And I'm personally aware of at least a few who have engaged counsel and do plan on going forward with a firing under. With a lawsuit under a constructive firing theory. But in general, if you voluntarily resign, regardless of the circumstances. I was not an employment lawyer, but the little I. I explored when I was in my own sort of dire straits was that if you want to.
- [69:01]
Benjamin Wittes
Sue, make them fire you.
- [69:03]
Mike Feinberg
Exactly. If you resign, you take a lot of your legal options off the table. I do not think this is going to be the thin edge of the wedge. The people who are getting. Basically everybody who is going to push back against Patel and Bongino is pretty much gone at this point. And 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. I have very personal experience in that matter. You know, I think, frankly, Driscoll and Jensen, one of whom I worked under, one of whom I know personally, are people of unusually high integrity and courage when it comes to stuff like this, and I fear their actions are not going to be the norm.
- [70:05]
Benjamin Wittes
All right. Speaking of things that are not the norm, we have a Bolton search warrant affidavit that was unsealed, and it is almost all completely uninteresting because it is either stuff that we knew or redacted, except for one rather fascinating section heading and. And that section heading may tell us a lot. So tell us a little bit about that section heading and what. What you think it might portend.
- [70:43]
Mike Feinberg
I assume you were referring to the section heading that makes explicit John Bolton's AOL account was hacked by a foreign power.
- [70:52]
Benjamin Wittes
Yes. And there is an entire section that is all redacted. But this strikes me as a highly probative section heading. Yeah, yeah.
- [71:05]
Mike Feinberg
So it raised a lot of questions for me. But I'll confess this may not be the appropriate venue for them because they are entirely quite questions of counterintelligence and cyber investigative techniques rather than pure legal questions.
- [71:21]
Benjamin Wittes
Hey, man, we have at it. It's in litigation, it's in a court. We're allowed to talk about it. The boundaries are porous here. Go for it.
- [71:31]
Mike Feinberg
Yeah, so. So this is weird. Let's broadly break down foreign powers into two categories. Categories friendly and unfriendly. And obviously there's ones who are sometimes one and sometimes the other. But generally you got good guys and you got bad guys. Let's say that this is coming from good guys, which is not as insane an assumption as it sounds, because the government is giving credence and willing to cite it in a. A court document. Why was John Bolton's email account being hacked by a service that is friendly enough to then turn over the fruits of that hacking to the US Government?
- [72:23]
Benjamin Wittes
But should we assume that's what happened, or.
- [72:25]
Roger Parloff
No.
- [72:26]
Mike Feinberg
No, not necessarily.
- [72:27]
Benjamin Wittes
There's.
- [72:27]
Mike Feinberg
There's three possibilities.
- [72:29]
Benjamin Wittes
Hacked it and we hacked them.
- [72:31]
Mike Feinberg
That's one of the three possibilities. The third, the second possibility is a hostile power discovered this and saw that it was in its interests for some reason to turn this over to the U.S. government. And that's not actually as insane as it sounds. Some people in the audience or among the panelists may be familiar with the concept in national security or counterintelligence of a walk in. And a walk in is basically when a US Citizen walks into a foreign embassy and offers to spy for that foreign country. What most people don't realize is the most common result of that is that the foreign country notifies the United States even when it's an enemy of ours. There's a whole bunch of complicated reasons for that, but. But that's generally what happens. And it's entirely possible that this information was discovered by a foreign power and there were reasons that they deemed advantageous to themselves to turn it over to the US Government. That is unlikely, but entirely possible. It raises the issue of creating a really screwed up incentive system for how we treat Cyber intrusion decisions as a matter of policy, but it's not something to be taken off the table. The third possibility is the one that you raised, which is a foreign power hacked into John Bolton's accounts, and we, or an allied nation, probably one of the five eyes in turn hacked into them. Now, that is the one that made. Makes the most sense. But I'd. You know, there's a wrinkle there in order. There's a couple wrinkles, actually. This was not a classified affidavit. There are no banners at the top and bottom which have been Xed out. There are no portion markings for each paragraph. So this was offered to the court under unclassified search circumstances, which means this is eventually going to have to be turned over to the defense.
- [75:00]
Benjamin Wittes
I think we may have lost Mike, so I will. We'll take that over and just say.
- [75:08]
Mike Feinberg
That he's willing to burn some sort of. If we hacked into a foreign government or.
- [75:19]
Benjamin Wittes
You're back.
- [75:20]
Mike Feinberg
Okay, so what I was saying is this is not classified. SEPA is not going to play a role with respect to this search. And what that means is that we are willing to give up in open court the fact that either we or allies have SIGINT or cyber access into a foreign adversary. I cannot stress how rare that is. I don't know that I ever saw us get approval for affirmative use of sigint, which is what this would be considered. Right, in an unclassified case. In close to two decades of working counterintelligence matters, the few times we proposed it to the agency that owns most of those techniques, there wasn't even a discussion. There was some laughter at our expense. But this is not something that's usually done. And what I extrapolate from that is that because this was offered at an unclassified level, there was some very seriously high executive branch approval for what happened. Events may prove me wrong. I could be not thinking of something, but the inclusion of that headline in an unclassified document was really weird.
- [76:49]
Benjamin Wittes
All right, so let me bounce one other thing off you before we move on, which we have to do. It seems to me the other thing that headline says is it answers the question of. Of freshness. Right. This stuff was sitting around. Everything else that we knew, other than stuff whispered in the ears of journalists, was about a book that Bolton published five years ago now.
- [77:19]
Mike Feinberg
UNIF 2020, I believe.
- [77:21]
Benjamin Wittes
Right. So this is more recent. And presumably what's in those blocks, blacked out passages, is X Country hacked John Bolton's AOL account. And in that AOL account was the following. Evidence of classified material that is improperly stored at his house. Is that a fair assumption?
- [77:47]
Mike Feinberg
Yeah, this is probably how they got over it. And I don't know, because the use of SIGINT in a criminal proceeding is, Is so rare. I'm only aware of one case and it was under very different circumstances because it's so rare. I question if this was a recent hacking or if this is an old hacking that got recently processed. You know, a lot of the stuff that we collect we don't actually analyze right at that moment. It sits in storage for a little.
- [78:27]
Benjamin Wittes
While or processed by NSD under one administration which, which declines to process, to pursue it further. And then say a new FBI director who's already put. Has an enemies list, which is convenient because it helps, you know, whom to investigate. Finds out that there is this disparaging material of. About a presidential critic. And that is, of course, catnip.
- [78:59]
Mike Feinberg
Yeah. And I just. Because this is such a set of rare circumstances, I don't know how that gets over the staleness requirements. There's going to. We're going to have to have another discussion about this as the case progresses and we learn when the information was collected, when it was processed and. Or translated and disseminated and how that might toll what would otherwise be a prohibitive statute of limitations.
- [79:26]
Benjamin Wittes
All right, so I am going to skip the Charlie Kirk matter because everybody else is covering it exhaustively and it is not yet fully in litigation. But Mike, do you have. Before we move on from it, do you have any thoughts related to the FBI performance and in that regard that we should talk about before we skip it?
- [79:52]
Mike Feinberg
I have a lot, actually, but I'll keep them short out of consideration for the other topics we still have remaining. The first is the individual. The subject who is now in custody was captured in 33 hours. So I spend a lot of time now critiquing the FBI. I do want to take a moment to praise the workforce of the Salt Lake City office and the local management there. I know the sac, he is a very squared away person of high integrity. I want to also praise local law enforcement, which played a huge role in this. And I also want to, you know, point out that there was a lot of luck involved. The guy turned himself in. It came after information that was revealed in investigation was divulged to the public, which may have upped the pressure. But like, a lot of things came together and that's a good ending. I'm not going to address Cash Patel's tweeting during the investigation other than to say it's anomalous and inappropriate but other people more eloquent than me have done so. I'm just going to point out one thing about his behavior that his not gotten any media attention yet. Anybody who has worked in law enforcement, whether as an investigator or in a prosecutorial capacity, knows in their bones from day one if you have a personal relationship with a victim, that is not an excuse for you to lean into the investigation and take charge. On the contrary, it is something that should mandate your recusal for Cash Patel to regularly talk about the personal relationship he had with Charlie Kirk.
- [81:46]
Benjamin Wittes
And we've lost Mike again, but let's just say I'll finish his sentence for him. Is bad.
- [81:52]
Mike Feinberg
Is. Is horrible. Yes, that is a yet one more huge violation of norms.
- [81:59]
Benjamin Wittes
All right, we're going to leave it there. Everybody else is saturating on Charlie Kirk. We're going to do it minimally here. Instead we're going to focus on Rebecca Rebecca Slaughter of the ftc. Roger, explain to us why we should focus on why we should should talk about Slaughter instead of Charlie Kirk.
- [82:28]
Roger Parloff
Well we, we should only talk about her very, very briefly because that's all the that the Supreme Court did. Chief Justice Roberts granted an administrative stay and I think even the the Supreme Court would agree that that has no weight. It's just, just until September 15th, which I think is is Monday to get a response. But this is she's a commissioner. This case involves two fired commissioners from the FTC and of course this so this implicates the the Humphreys executor line of cases. We've been looking at Wilcox and Harris and Boyle and of course this in some senses is the big one because because Humphrey's executor itself involved the ftc. So we'll be looking to what happened there. Lauren Alican did rule for Slaughter on this. In fairness she ruled back on July 17. She gave short shrift to the Supreme Court's stay order in Wilcox and Harris this but the the court had not yet issued boil which is where it really got angry about people ignoring its its stay orders and and start started insist insisting that stay orders were controlling. So anyway that's where that one stands.
- [84:03]
Benjamin Wittes
All right. We have a clamoring in the chat to talk about Lisa Cook and it is the next thing on our list. Eric. Roger says that Slaughter is the big one but when I think about the Humphreys executor big one. There's big one in the FTC sense of Overruling Humphreys. But then there's the big one in the Lisa Cook sense of does overruling Humphreys imply that that applies even to the Fed? So it seems like like Lisa Cook is really the big one, right?
- [84:40]
Eric Columbus
In a sense, yes, in part because she is doesn't stand alone, but is one of what, maybe 14 governors on the board of governors of the Federal Reserve and could be a stalking horse for whether Trump could fire Jerome Powell or just beyond that was Powell only has what, like a year or at most left on his terms term whether Trump could hold a threat of firing and whether any president could hold the threat of firing of any successor to Powell or to any governor on the border Federal Reserve. So Trump purported to fire Lisa Cook on August 25, ostensibly because she allegedly claimed two different properties as her primary residence on mortgage applications, which when you do that it typically, typically helps you get a lower mortgage rate because you're less likely to default on your primary residence. We don't know anything about the circumstances. We don't know if she actually did something wrong. We don't know if the facts are true. We don't know whether if she did do this, whether it was just oversight by some her accountant. What we do know is that the Federal Reserve Act 12 USC 242 says that each governor has a 14 year term unless sooner removed for cause by the President. Now, as basically Ryder has previewed and listeners may recall, the Supreme Court has basically blown up nearly every statutory protection for presidential appointees. But in the Wilcox case, it carved out in dicta an explicit protection for the Fed. Stated reasons don't didn't really make much sense, but the unspoken reason seems to be that they feel that politically messing with the Fed could carry far worse consequences.
- [86:32]
Benjamin Wittes
It's basically that, you know, the unitary executive is the unitary executive, but the Fed's really important.
- [86:41]
Eric Columbus
Yeah, something like that. I mean I, I thought the whole government was really important, but yeah, but.
- [86:46]
Benjamin Wittes
But, but not like the Fed.
- [86:48]
Eric Columbus
I get let's take all animals. Some animals are more equal than others.
- [86:51]
Benjamin Wittes
Right?
- [86:53]
Eric Columbus
An animal farm. So now, so the statute allows removal for cause. And Cook sued and she argues mainly that her removal was not in fact for cause and that it thus violated the statute. She says that she claims, and I'll pause to say that this every single person in the world would agree basically that Trump's stated reason was protectual, it didn't have to do with her mortgage, and that even if it wasn't, it still doesn't constitute cause. She also says that she's entitled to notice an opportunity to be heard before getting fired, which she did not receive. The government obviously disagrees on those points and says that even if she was fired for cause, Trump's action is not subject to judicial review. So Judge, this is Judge Cobb again had the case and she looked at the history of the statute, similar statutes and dictionaries to try to figure out what it means to be fired for cause. And she noted that generally and this statute dates back to 1913, but then it was removed in 1933. So she focused on 1935 when it was restored. But she found dictionary definitions to be inconclusive. She know that generally speaking, prior statutes around that time limited the grounds to some combination grounds for termination to some combination of inefficiency, neglect of duty or malfeasance for presidential removal of agency heads members. But here Congress said just for cause. So Judge Cobb said, well, you know, that's got to mean something more than inefficiency, neglect or malfeasance. But it can't mean anything the President wants given the, the Congress's strong desire at the time to insulate the Fed from, from political meddling. And so the judge drew line basically say, look, it has to relate to in office conduct. It can't relate to anything that took place before that. Now there's a, a wrinkle there is that the judge said, look, it could include conviction and incarceration because that obviously would interfere with performance. Now, quite tellingly, she did not mention indictment in there because it is certainly possible that Trump would try to, would have DOJ indict her, have a grand, have a grand jury seek to indict her, shall I say, for this behavior. But the judge implicitly indicated that would not be good enough.
- [89:42]
Benjamin Wittes
All right, so, so we need to, we need to speed through the rest. So we have, so what is her status going into? I think there's a Federal Reserve meeting next week, right.
- [89:57]
Eric Columbus
I believe it's on Tuesday. And this, we may be talking about this case again next week because the D.C. circuit said a very, the government appealed. D.C. circuit said a very aggressive briefing schedule, last brief due Sunday. This could be at the Supreme Court Sunday night or Monday morning. And so we might get a resolution very soon.
- [90:16]
Benjamin Wittes
All right. Meanwhile, Speaking of the D.C. circuit, they also issued an opinion in the matter of the Register of Copyrights. I assume that is a similar Humphreys executor type of question.
- [90:37]
Eric Columbus
Well, there's some wrinkles there. Basically, one wrinkle is that the question about whether she is in the legislative branch branch or in the executive branch, but she works the Register of Copyrights, works for the Librarian of Congress.
- [90:59]
Benjamin Wittes
And what is a presidential appointee?
- [91:03]
Eric Columbus
The Librarian of Congress is a presidential appointee, but is generally regarded to be working in the Legislative branch, similar to the head of the GAO know. And it's the Library of Congress is a, is a kind of a hybrid organization. There's, there's D.C. circuit case law that says that with some copyright authorities. The Copyright Royalty Board, I believe it's called, is clearly an executive function, but at the opposite extreme. And ultimately there's case law on it. The Congressional Research Service, which advises Congress, is clearly doing the work of Congress and would be a legislative agency. So there's, there's questions about where she, where she sits.
- [91:59]
Benjamin Wittes
And so where did the D.C. circuit leave it?
- [92:02]
Eric Columbus
The D.C. circuit said concludes so the judge below, Judge Kelly, said there's no irreparable injury here because at the end of the day she'll get her job back or not. And if there's damages, she could get those. But losing your job is generally not a reparable injury. D.C. circuit said not so fast. This is very different. This is a generally extraordinary situation, basically because there are a lot of, there are real separation of powers questions because it's not clear, among other things, whether she is in the legislative branch or the executive branch. And if she's in the legislative branch, then her firing is arguably unconstitutional because only the Librarian of Congress could fire her and she could not be replaced under the Federal Vacancies Reform act, as the President purports do. And the facts are a little strange. Apparently she's like still on the job because of this, the chaos of everything. And the President's kind of apparently not caring much about what happened here.
- [93:14]
Benjamin Wittes
All right. Finally, Roger, we have a argument at the 4th Circuit in one of the Doge cases, one of Anna's favorite Doge cases asks me v. Circumstances Social Security Administration. Remind us about the underlying fourth Circuit panel opinion and what happened at oral argument.
- [93:40]
Roger Parloff
Yeah, this was the, this is DOGE penetrating Social Security Administration getting access to I, I guess I got all the digital penetration cases. Is this today? This is 300 million 400, just hundreds of millions of the most sensitive personal information the entire nation, these poorly trained, poorly vetted Doge children. And Judge Hollander in April 17 said that basically you're hitting a fly with a sledgehammer. Why can't the information be anonymized? In essence, this was a fishing expedition. She issued a preliminary Injunction. The analogous. The tort that this might resemble is my now favorite tort, intrusion upon seclusion. And. And then on April 30, the.
- [94:57]
Benjamin Wittes
Court.
- [94:57]
Roger Parloff
Of Appeals for the Fourth Circuit denied a stay, but agreed to hear this end Bank. On June 6th, the Supreme Court interstayed, explaining nothing specific. Six to three, you know, probably six to three, certainly three dissent. And, and so then it came back. And, and, and they had. Fourth Circuit had already decided that they would hear it en banc. The. So this was that en banc hearing on the preliminary injunction. But the problem is. And so, but more than half, I would say, or at least half of the argument which went on for about 80 minutes, was not about the substance of the case, but about what do we do after the Supreme Court has already stayed, you know, and they said that it's going to stay in effect no matter what the 4th Circuit does. And so some are wondering, well, maybe we just mean. And so there were 15 judges. And of course you can listen to it on YouTube, they don't label the judges. So. And I don't recognize the voices of the 4th Circuit judges. The Politico did do an article where they identified many of them, but basically they were saying things like how do we do anything other than reach the same conclusion? Why don't. I mean, we don't know how or why, but we know what the answer is. Plaintiffs lose. And if. And they were referring in particular to the Supreme Court's opinion in ruling in Boyle, which is the one where they got angry and said, they said they were themselves, their ruling was controlled by what they their stay order in Wilcox. Meaning, Meaning these things do have impact. And, and so there were other judges who felt, well, they have an independent obligation to go forward. One was saying we have 150 page opinion by a district judge after two months of work. And then we have a cryptic, you know, several paragraph opinion with no reasoning, which do we defer to? And the other. And another judge said, well, you know, you deferred to the court above you. So I don't know if they seemed perplexed about what to do. I think they felt almost like they didn't say this, but like a clerk, you know, who's told by the judge, I want to come out this way, go write the opinion. And they didn't perceive that to be their job. So, so I don't know what they're going to do. Some brought up unrelated things. This same court in A similar case, AFT vs. Besant, had a panel decision two to one that adopted a weird, a weird reasoning that actually somebody, one of our participants, regularly participant David Emery, had been asking about earlier and I, I wasn't prepared at that time. But in that panel they, one of the judges said that well, in a preliminary injunction case, you, you're, you're, you, you, you, you, you're trying to decide if the plaintiff is likely to prevail on multiple rooks does it decisions and they have to prevail on all of them, you know, standing irreparable harm the merits. And so I'll just read you that ruling because some of the judges clearly wanted to just take this opportunity to overrule that ruling which was, he explains it in a footnote, an example for clarity. If plaintiffs on a case had a 70% chance of prevailing on each of five independent incidents issues, but they needed to prevail on all of them to receive relief, then their likelihood of overall success is 75% times five, which is about 24%. So despite being three to one favorites on each issue, plaintiffs are three to one underdogs on the case overall. So plaintiffs lose. I, I think they, so one judge wants to take the advantage to, to, to overrule that even though it's, it's not in this case case anyway it's, it's quite a mess. A lot of people were expressing, were venting and one judge, Judge Wynn, according to Politico, he was also pointing out that you need to write so that the judges don't have amnesia later when a different president is there. He's saying if you're going to apply these things equally, there needs to be an opinion because otherwise it's too easy to just rule for Trump Trump and then rule against the Democrat when he takes over. So anyway, that's, that's an interesting argument.
- [100:17]
Benjamin Wittes
All right, quickly, I want to get through a couple of audience questions. I'm going to limit us to audience questions that are directly on matters that we've talked about today. So Josh asks in the most optimistic timeline for Eugene Carroll, when might she get the $83 million? What do you think, Roger?
- [100:45]
Roger Parloff
I haven't added it all together. They're good at delaying. I, I, I, I, I'm, I, it seems like at least another year.
- [100:58]
Benjamin Wittes
Yeah, generally speaking, look, you have, assuming she does not get certified cert or en banc review, you got to give her, you got to give them six months on the cert petition and probably three months, maybe a little more on the en banc review minimum. So I would say if you, you, if, if all goes well for her. She gets, you know, $85 million a year from now. Linda asks, has there been any news of legal repercussions for the murder of election 11 people in that boat off the coast of Venezuela? Answer no. I love it when we do yes or no questions. Matt asks for Eric, is there not a conflict between Justice Kavanaugh's assertion that the plaintiffs lack standing because they are no more likely to be stopped by ICE than the general public and his conclusion that ICE may focus his enforce its enforcement efforts efforts on people who share the plaintiff's specific characteristics, ethnicity, language and occupation?
- [102:09]
Eric Columbus
That's an interesting question. I would rephrase that a little bit. Kavanaugh didn't say that they're not more likely to be stopped in the general public. It's just that there wasn't a sufficient likelihood that they would be stopped at all. So then the question becomes, is this decision itself almost like change the facts such that it would kind of focus ISIS actions to the point where there would be a reasonable probability of them being stopped again? And Justice Kavanaugh would would say no, there still is just a vast pool of people and ICE is not likely to be stopping the same people again, even though the record indicates that in one case they did.
- [102:57]
Benjamin Wittes
Yeah. And even though if you're the sort of person who say goes at to a particular Home Depot parking lot looking for work it and that's a place that ICE hits over and over again, you know, it's, it's not simply a matter of luck who gets who gets stopped. All right folks, we are going to leave it there. We only ran 11 minutes over today. Roger, Eric, thank you for joining us today. Thanks also to Mike Feinberg, Scott Anderson and Anna Bauer who all had to drop off earlier. And thanks to you all for joining us. We will see you next week.
- [103:45]
Anna Bauer
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