The Lawfare Podcast: Lawfare Daily—The Trials of the Trump Administration

Episode Date: September 18, 2025
Host: Benjamin Wittes
Panelists: Roger Parloff, Anna Bauer, Eric Columbus

Overview

This episode of The Lawfare Podcast brings together senior editors Benjamin Wittes, Roger Parloff, Anna Bauer, and Eric Columbus for a deep-dive panel on recent legal battles involving the Trump administration. The show covers:

• Key developments in federal personnel litigation, including the Lisa Cook firing,
• The American Federation of Government Employees case,
• The firing and litigation involving Maureen Comey and other FBI agents,
• Kash Patel’s combative Congressional testimony as FBI Director,
• Major immigration rulings, such as the injunction against deporting Guatemalan children,
• Updates on the Georgia criminal case involving Fani Willis,
• Several cases tied to immigration law and executive authority, and a discussion on the broader implications for the structure of government and the future of administrative law.

The episode is notable for its analytical depth, skeptical tone, and moments of wry humor, reflecting the gravitas and occasional exasperation of the Lawfare team as they untangle legal and constitutional crises in turbulent political times.

Key Discussion Points & Insights

1. The Lisa Cook Firing and the Supreme Court (03:00–16:30)

• Background: Lisa Cook, a Federal Reserve Board governor, was fired by the Trump administration over allegations of mortgage application fraud.
• Legal Framework & Precedent:
  • The Federal Reserve Act grants a 14-year term, “unless sooner removed for cause.”
  • The Supreme Court’s precedent in Wilcox created an exception for the Fed’s independence from presidential at-will firing.
• District and Circuit Court Rulings:
  • Cook sued, won in district court on due process grounds (not for cause and lack of procedural rights).
  • D.C. Circuit upheld the ruling on due process, setting up a high-stakes SCOTUS confrontation.
• Panel Skepticism & The “Embarrassment Factor”:
  • Wittes and Columbus question the norm of deferring to dubious presidential motives for firings, expressing concern about courts repeatedly enabling obviously pretextual sackings.
  • “At some point, the fiction that you are deferring to a coordinate branch... lying when you know they're lying becomes... a bit laughable, right?” —Benjamin Wittes (09:07)
• Prediction: Expect a swift Supreme Court stay but with the “embarrassment factor” looming.

2. Federal Personnel: Union Challenge and Maureen Comey Firing (16:30–25:37)

• American Federation of Government Employees:
  • Judge Alsup ruled OPM’s terminations of probationary employees were arbitrary, with restoration impossible due to elapsed time—partial relief in the form of records correction was granted.
• Maureen Comey Case:
  • Fired under Article II during a “purge” of civil servants, potentially for no cause other than her surname.
  • The dilemma: Merit Systems Protection Board (MSPB) lacks a quorum due to other Trump firings, rendering recourse uncertain.
  • Wittes: “If Trump is right and he can fire somebody because Article II... there's no dispute about Maureen Comey's performance... merely a dispute as to whether the President gets to wave the whole civil service system away entirely.” (24:10)
  • These cases presage a likely Supreme Court showdown over civil service protections versus presidential removal power.

3. Q&A with Eric Columbus: Fed and Wilcox Carveout (26:13–27:54)

• The government is not challenging the Wilcox “Fed carveout” in the current litigation, accepting that for-cause protection is valid there.
• It's unclear how SCOTUS may handle the precedent if it wants to allow Cook’s removal anyway.

4. Kash Patel’s Congressional Testimony as FBI Director (27:54–37:43)

• Format: Anna Bauer leads a cross-examination of Wittes about Patel’s appearances before Congress.
• Tone and Style: Patel was combative and overtly political, embracing the “MAGA movement” identity—breaking with decades of FBI director neutrality.
• Memorable Quote:
  • “He was very much there as a member of the administration and as a representative of the MAGA movement... That is not something that prior FBI directors... would do.” —Benjamin Wittes (31:48)
• Panel’s Assessment:
  • Skepticism regarding Patel’s claims of record crime reductions—statistical manipulation suspected.
  • His claims denying any political or retaliatory FBI firings “almost certainly false.”
  • Anticipate Patel facing depositions in litigation over alleged political purging at the Bureau.

5. Judge Tim Kelly Blocks Deportation of Guatemalan Children (41:07–50:29)

• Background:
  • Judge Kelly (a Trump appointee) issues preliminary injunction stopping the forced removal of unaccompanied Guatemalan minors, finding the government’s “reunification” justifications “crumbled like a house of cards.”
  • Anna Bauer notes: “It is clear that Judge Kelly doesn't believe the government in a lot of ways. It's kind of a remarkable opinion.” (46:01)
• Panel Reflection:
  • Roger Parloff doubts the government will appeal due to the case’s egregiousness.
  • Key impact: case may extend protections to other unaccompanied minors from noncontiguous countries.

6. Georgia Criminal Case: Fani Willis Disqualification (54:42–63:27)

• Fani Willis, Fulton County DA in Trump case, remains disqualified after the Georgia Supreme Court declines to hear the matter—potentially dooming aspects of the prosecution.
• Majority opinion: too “niche” a dispute; dissenting justices see grave statewide significance.
• “One is entitled to ask what exactly you have a state supreme court for not to answer a question like that.” —Benjamin Wittes (59:44)
• Successor prosecutions now hinge on the prosecuting attorneys’ council and future willingness to proceed.

7. FTC ‘Slaughter’ Case and the Fate of Humphrey’s Executor (63:58–67:54)

• SCOTUS may revisit or overrule Humphrey’s Executor (1935), which limits presidential removal power of independent regulators.
• Slaughter involves the firing of an FTC commissioner—a case that could reshape the administrative state.

8. FBI Firings: The “Hard Version” of the Unitary Executive (67:54–76:48)

• Ongoing litigation by ex-FBI agents (including Maureen Comey, Meyer, Giardina) challenges mass firings without cause.
• Veterans have special protections and are pursuing administrative and federal remedies, with panelists highlighting the deranged cruelty of the process.
• “This is where you would get down to having the whole federal government be just Tammany Hall with Boss Tweed in control...” —Roger Parloff (71:19)

9. Immigration Litigation Roundup (76:48–91:20)

• D.A. v. NOME (Ghana case):
  • Government allegedly colludes with foreign powers to circumvent court review and refugee protections.
  • Judge Chutkan reluctant but “hands are tied” to remedy deportations already executed via clandestine midnight flights.
• Mahmoud Khalil:
  • Palestinian Columbia student-activist faces conflicting removal grounds; legal limbo continues amid jurisdictional chaos.
• National TPS Alliance (9th Circuit):
  • Latest skirmish in executive attempts to rescind Temporary Protected Status (TPS) for Venezuelans.
  • 9th Circuit refuses to stay district court’s pro-plaintiff summary judgment; panel uneasy about looming SCOTUS intervention.

10. Listener Q&A and Final Reflections (91:20–98:10)

• Jimmy Kimmel v. FCC (First Amendment):
  • Likely First Amendment violation, but uncertainty about standing to litigate; “an impeachable offense, but...” (93:12)
• Cash Patel’s Conflict in Charlie Kirk Assassination Case:
  • Patel’s personal friendship and public statements about the investigation are described as highly inappropriate and dangerous.
  • “The first major impropriety is that Cash Patel should not have been involved in this investigation at all... And you certainly shouldn't, as a law enforcement officer, be leading an investigation that involves the murder of somebody that you feel a personal connection to.” —Benjamin Wittes (96:00)
  • “I think that summarizes it well.” —Roger Parloff (98:05)

Notable Quotes & Memorable Moments

• “At some point, the fiction that you are deferring to a coordinate branch... lying when you know they're lying becomes... a bit laughable, right?” —Benjamin Wittes (09:07)
• “He was very much there as a member of the administration and as a representative of the MAGA movement... That is not something that prior FBI directors... would do.” —Benjamin Wittes (31:48)
• “Crumbled like a house of cards. I mean this is a Trump judge who is saying that the government's representations crumbled like a house of cards.” —Anna Bauer, on Judge Kelly’s opinion (45:52)
• “This is where you would get down to having the whole federal government be just Tammany Hall with Boss Tweed in control and just... spoils system.” —Roger Parloff (71:19)
• “One is entitled to ask what exactly you have a state supreme court for not to answer a question like that.” —Benjamin Wittes (59:44)

Important Timestamps

• 03:00 — Lisa Cook firing and Supreme Court intrigue
• 16:30 — OPM firings and AFGE case; Maureen Comey lawsuit
• 27:54 — Kash Patel aggressive testimony as FBI director
• 41:07 — Guatemalan children’s deportation blocked by Judge Kelly
• 54:42 — Georgia criminal disqualification: Fani Willis out
• 63:58 — FTC “Slaughter” case and the fate of Humphrey’s Executor
• 67:54 — FBI agent firings and the unitary executive theory
• 76:48 — Immigration removal shenanigans (Ghana case, Khalil, TPS Alliance)
• 91:20 — Listener Q&A (Kimmel, Cash Patel/Charlie Kirk)
• 98:10 — Closing thanks

Tone and Takeaways

The episode offers a sobering yet often acerbic tour of the evolving relationship between law, executive power, and the rule of law in contemporary America. The Lawfare team’s skepticism, legal acumen, and black humor shine as they document both unprecedented overreach and moments of judicial resistance.

Listeners will come away understanding:

• The stakes in ongoing personnel and administrative law battles,
• The shifting norms in law enforcement and executive branch conduct,
• The perilous path for civil service protection and agency independence,
• And the roller coaster of litigation shaping immigration policy and civil rights.

For the latest, in-depth legal analysis of the Trump administration’s legal challenges, this episode is an essential and engaging listen.