The Lawfare Podcast: The Trials of the Trump Administration, Sept. 26, 2025 – Episode Summary

Podcast: The Lawfare Podcast
Date: September 29, 2025
Panel: Benjamin Wittes (host), Scott R. Anderson, Roger Parloff, Anna Bauer, Eric Columbus
Theme: A deep dive into the Trump Administration's legal battles: Supreme Court upheavals on removal protections, the prosecution of James Comey, immigration issues, agency dismantling, and broader questions about politicization and the rule of law.

Episode Overview

This episode features an intensive discussion among Lawfare’s senior editors about pivotal ongoing legal challenges facing (and created by) the Trump Administration. Key topics include the Supreme Court’s new approach to independent agency heads’ removal protections, the unprecedented indictment of former FBI Director James Comey, major developments in immigration and administrative law, and the broader implications for the structure and fairness of American government.

Key Discussion Points & Insights

1. The Supreme Court and Removal Protections (Slaughter Case)

[03:25]–[18:51]

• Rebecca Slaughter’s Firing from the FTC:
  The Supreme Court has decided to review whether statutory “for-cause” removal protections for independent agency heads are constitutional (reviving the question from Humphrey’s Executor).

  • “They grant cert before judgment... relating to the Humphreys executor issue. That's exactly what we thought, whether statutory removal protections violate separation of powers...” — Roger Parloff [03:25]

• Expansion of the Case:
  The Court is also considering whether federal courts can block removals (“relief at equity or at law”). This could massively expand the scope of executive power.

• Dissent from Liberals:
  Justice Kagan, joined by Sotomayor and Jackson, laments the use of the emergency docket and the Court’s willingness to upend longstanding precedent.

  • “The majority's emergency stay, as a result the President, quote, may thereby extinguish the agency's bipartisanship and independence.” — Roger Parloff (quoting Kagan) [05:00]

• Is Humphrey’s Executor a ‘Dead Precedent Walking’? The panel largely agrees that Humphrey’s Executor’s days are numbered, review hinging more on how far the Court will go than whether they will overturn it.

  • “I have no doubt and have never doubted since SELA law that Humphrey's executor was a dead precedent walking.” — Benjamin Wittes [06:24]
  • “The bigger question, the more important question, though, is how far does this go beyond independent agencies?” — Scott R. Anderson [09:48]

• Implications: Concerns arise over a possible sea change in the separation of powers, with a shift toward a more unitary executive—especially alarming given Trump’s documented hostility to institutional constraints.

  • “You have to begin to imagine the unitary executive in the hypothetical context of, you know, a thoroughly dishonest, corrupt, maybe criminal, maybe deranged president. Is this really so smart?” — Roger Parloff [20:41]

2. The Fate of Civil Service and Inspector General Protections

[22:06]–[32:05]

• Peter Strzok’s Lawsuit:
  Dismissed with a short decision: his firing did not violate the First Amendment or due process, and there's likely no strong avenue for appeal.

  • Strzok’s “interest in expressing his opinions about political candidates... was outweighed by the FBI's interests in avoiding the appearance of bias...” — Eric Columbus [23:09]

• Inspectors General Dismissed:
  Challenge to their firings also failed; they’re entitled to back pay at best, not reinstatement.

  • “Typically your inability to do your job is not irreparable harm to yourself...” — Eric Columbus [27:16]
  • The courts (and Congress’s statutes) appear impotent in the face of an executive willing to disregard norms, leaving aggrieved employees with only monetary recovery.

• Broader Principle:
  If Congress can only require backpay for unlawful firings, statutory job protections may become meaningless, radically empowering the executive.

3. The Lisa Cook Case and Due Process in Removal for “Cause”

[35:59]–[44:44]

• Cook’s Case:
  Raises the core question: What counts as “cause” for removal? (Trump alleges fraud based on little more than a tweet.)
  • “How is it possible with all these for cause requirements in federal law... we don't know what it means to fire somebody for cause...?” — Benjamin Wittes [34:33]
• Star Legal Team:
  Paul Clement, noted conservative Supreme Court advocate, joins Cook’s resistance. The panel lauds Clement’s reputation for principled lawyering:
  • “Paul would be somewhere in the top five [advocates]. For many people, he would be one or two.” — Benjamin Wittes [37:19]
• Due Process Angle:
  The government claims Cook had an opportunity to respond to allegations “in the media,” but the panel finds this argument specious.
  • “No one on the planet believes that President Trump acted regularly in this manner... everyone knows that he is doing this as a pretext.” — Eric Columbus [41:00]

4. Dismantling Federal Agencies: The Whitaker Swara & VOA Cases

[46:14]–[58:43]

• Voice of America (VOA) Litigation:
  Agencies (including CFPB) are being systematically “dismantled,” but workers and grantees are stuck in legal limbo, as administrative-procedure rules foreclose court intervention except in narrow circumstances.

  • “There’s at least a glimmer of hope... that Judge Katz will view things differently... they might yet be able to get the judgment through the district court.” — Scott R. Anderson [48:50]

• Compliance and Contempt:
  District courts, e.g., Judge Lamberth, may soon have to decide whether to find agency heads in contempt for failing to carry out their statutory missions.

5. Funding, the 'Pocket Rescission', and the Supreme Court

[58:43]–[65:07]

• AIDS Vaccine Coalition / Foreign Aid Litigation:
  The Supreme Court’s decision effectively allows the administration to “pocket veto” $4 billion in congressionally-allocated funds (by not obligating them before a fiscal deadline).
  • “I think what the Supreme Court just said... is they're putting a stay on Judge Ali's order such that the government doesn't have to obligate these funds by September 30th, which means that the pocket rescission is effectively successful.” — Benjamin Wittes [58:43]
  • “That is, you could read that as saying the pocket rescission request is essentially successful...” — Scott R. Anderson [60:14]

6. The Indictment of James Comey and the Weaponization of DOJ

[65:07]–[82:36]

• Comey Indicted:
  The episode’s most alarming development: former FBI Director Jim Comey is indicted on charges relating to allegedly false congressional testimony about media leaks—a case long closed, with no new evidence, revived purely at the president’s insistence.

  • “They were opened again the other day because the President hates Jim Comey that much... by itself, extremely unusual to reopen a matter based on no new information.” — Benjamin Wittes [75:28]
  • “A former Justice Department official wrote to me... that this should fundamentally change every American's understanding of the Justice Department. It's the most shocking abuse of prosecutorial authority in the modern history of the Justice Department.” — Benjamin Wittes [102:24]

• Weakness of the Case:
  The alleged “false statements” seem based on extremely tendentious readings of testimony. The supposed authorization of leaks appears entirely unsupported by the available (heavily redacted) evidence.

• Grand Jury as a Thin Shield:
  Normally grand juries aren’t a meaningful check (“will indict a ham sandwich”), but in this context their refusal to indict on one proposed charge illustrates a (weak but real) barrier to political prosecutions.

• Broader Warnings:
  The panel is openly horrified and warns this "crosses a line" that fundamentally alters American expectations about DOJ impartiality and legal protections.

7. Immigration Case Updates

[84:31]–[96:01]

• Deportees sent to Ghana (some not Ghanaian) have been further repatriated to countries where they face credible threats of torture, despite government assurances; the court process is currently at an impasse due to sealed filings.

• Preliminary injunctions continue in cases involving the deportation of Guatemalan and Honduran children, with district judges unconvinced by the administration’s explanations.

• New lawsuits allege that people are being detained in DC without probable cause or legal process, part of a dramatic increase in detentions following Trump’s federal takeover of DC.

  • “Instead of being detained for 20 minutes, which Brett Kavanaugh doesn't think is a big deal, these people were detained 40 miles away in Chantilly, Virginia, overnight, and in one case for four weeks.” — Roger Parloff [90:43]

• Major class actions challenge the new, draconian interpretation of mandatory immigration detention statutes, with most trial courts thus far siding against the administration.

8. Alien Enemies Act and Fifth Circuit Strategy

[96:07]–[98:46]

• The government has appealed for an en banc rehearing at the 5th Circuit (despite expectation of eventual Supreme Court review), perhaps merely to allow circuit judges to "vent" or delay proceedings rather than serve a substantive legal purpose.

Notable Quotes & Memorable Moments

• On the End of Humphrey’s Executor:
  “I have no doubt and have never doubted since SELA law that Humphrey's executor was a dead precedent walking...”
  — Benjamin Wittes [06:24]

• On Norms v. Law:
  “If you can't reinstate these folks, then it’s really a meaningless protection.”
  — Eric Columbus [31:21]

• On the Politicization of the Justice Department:
  “This is a use of the Justice Department that we just are not used to... It's the most shocking abuse of prosecutorial authority in the modern history of the Justice Department.”
  — Benjamin Wittes [102:24]

• On Selective Prosecution:
  “All kinds of things that we think of... are actually very real. They're just protecting you against something that nobody's threatening until the day that somebody is. And that's the significance of what happened yesterday.”
  — Benjamin Wittes [102:24]

• On Agency Dismantling:
  “This is the first district court to really be in this difficult position... how much leeway do we give an agency in interpreting its statutory mandate?... at what point do we have to say: you guys are just straight up violating the law...”
  — Scott R. Anderson [56:02]

Timestamps for Important Segments

• [03:25] — Supreme Court and the Slaughter/FTC case; undermining Humphrey’s Executor
• [22:06] — Peter Strzok case dismissed; Inspectors General lawsuit decision
• [34:33] — What counts as “for cause” in Lisa Cook’s removal challenge
• [46:14] — Who wants to dismantle a federal agency? (VOA, grant litigation, administrative barriers)
• [58:43] — Supreme Court “pocket rescission” order and its fiscal implications
• [65:07] — The indictment of James Comey and the shocking turn in DOJ behavior
• [84:31] — Immigration removals update: Ghana/Guatemala/Honduras/children
• [90:17] — New DC detentions/abuses lawsuit; expansion of agency policing
• [92:54] — Mandatory detention interpretations; rapid growth of class action opposition
• [96:07] — Alien Enemies Act, 5th Circuit, and strategic appellate maneuvers

Tone and Language

The discussion is strikingly frank and sober, at times expressing outright alarm at the pace and aggressiveness of legal and institutional changes. There is significant legal nuance, with explanations accessible to non-specialists, and flashes of dry humor (e.g., ranking the best-named federal judges). Regular interjections clarify complex legal principles or the real-world importance of arcane lawsuits.

Conclusion

This episode paints a portrait of turbulence at the confluence of law and politics in the Trump era—marked by dramatic Supreme Court interventions, the evisceration of traditional administrative protections, and the overt politicization of prosecutorial powers. At every turn, the panel stresses the gravity of these developments, warning that guardrails long thought secure may no longer withstand sustained executive assault.