← The Lawfare Podcast
Loading summary
Transcript85 lines
- [00:01]
Lawfare Host
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair. Also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull, and the Aftermath.
- [00:32]
Amazon Music Ad
Hey, prime members, are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music, you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com ADFreePodcasts. That's Amazon.com ADFreeP Podcasts to catch up on the latest episodes without the ads.
- [00:59]
1-800-Flowers Ad
At 1-800-flowers.com we know that connections are at the heart of being human. Whether celebrating life's joys or comforting during tough times, 1-800-Flowers helps you express what words can't for nearly 50 years, millions have trusted 1-800-Flowers to deliver thoughtful gifts that help create lasting bonds. Because it's more than just a gift. It's your way of showing you care. Visit 1-800-flowers.com acastra and connect today. That's 1-800-flowers.Com acast.
- [01:32]
Scott R. Anderson
Ben, I feel like spring has sprung. You have broken out the colorful light sport coat. You, you, you have a kind of a air of a kind of a character from the Music man about you in this particular outfit. I feel like and I, I enjoying it. Although you picked the coldest day of the month to do it in. But that's okay.
- [01:49]
Benjamin Wittes
I don't, I mean, I, I, I get hot very easily and cold very seldom. So this is perfect weather from my point of view. But I will point out with respect to the dog shirt framed by this jacket that I got into the elevator today at Brookings and Molly Reynolds walked into the elevator with a young staffer who took one look at my shirt and said, I love your shirt. And Molly burst out loud and I said, see, it never does fail to start a conversation. So eat that, Quinta Jurezic.
- [02:33]
Quinta Jurecic
I never said I failed to start conversations.
- [02:37]
Scott R. Anderson
Does your sober turtleneck inspire as many conversations as my sober turtleneck?
- [02:41]
Quinta Jurecic
I don't know. This is the first conversation I've had about it.
- [02:46]
Scott R. Anderson
Perhaps not. Perhaps not. Ben loves for people who don't get to interact with Ben. Ben wittes in a visual format on a daily basis, which you could on your daily or not quite daily, nearly daily YouTube show, right?
- [02:58]
Benjamin Wittes
Yeah, it's pretty daily.
- [02:59]
Scott R. Anderson
Ben loves when his Real World decorations match the dog's decorations on his shirt. So in this case, he's wearing over ear headphones and the dog is also wearing over ear headphones. It's like pretty, it's pretty amazing. Only, only someone with a true, true, you know, deep library of dog shirts could pull this off as regularly as Ben widows does.
- [03:19]
Benjamin Wittes
Well, so a few things happen. One, one is people who design dog shirts started sending me them. And some people take their dog shirt designs very seriously. But then there's also the fact that mostly to antagonize Quinta, I have diversified my own. I've, you know, I've started wearing button down collared dog shirts that have, you know, like prints on them. And those are the goal whenever I wear one is for Quinta to look at it and say that's horrifying. Or some exclamation of disapproval. And so some of those get pretty garish. But yeah, the core of the collection is still the sort of protuberant, vaguely three dimensional dog that is sort of leaping off the page or the chest and kind of you look at it and it's sort of, you feel like it's judging you.
- [04:23]
Scott R. Anderson
It's like a nature channel documentary where we have the butterflies that they look like eyes on their wings. So predators don't know whether to bite the body or bite the wing and you get away. And I like to think that's how it would work with you. Two, if a mugger ever came at you, they wouldn't know whether to go for the dog or the man in between. That's when you do.
- [04:39]
Benjamin Wittes
Now that we have revived the dire wolf from extinction, I am ready. If a dire wolf attacks me, they don't know whether they're going for me or for the dog on me. And you guys are just not ready for dire wolf attacks.
- [04:59]
Scott R. Anderson
Hello everyone and welcome back to Rational Security. I am your host, Scott R. Anderson. Thrilled to be back with you this week for the show where we invite you to join members of the lawfare team as we try to make sense of the week's biggest national security news stories. With me this week is an allstar cast, former co host emeritus. I guess a little redundant, but that's okay. Co host emeritus Quinta Jurecic back on the podcast. Quinta, thank you for coming on other co host emeritus but not of the same co host generation, but still co hosts emeritus. He still gets the title. I'm just saying emeritus as many times as I can in this one sentence because I learned how to say it properly. Benjamin Wittes back on the podcast. Happy to have you.
- [05:39]
Benjamin Wittes
Hey, hey.
- [05:40]
Scott R. Anderson
If for the first time, one of Lawfare's newest additions, lawfair. So what did we decide your title was? Was it Lawfare Legal Fellow? It was something different.
- [05:48]
James Pierce
Senior Legal Fellow, Legal Fellow Emeritus, Legal.
- [05:53]
Scott R. Anderson
Fellow Emeritus, Senior Legal Fellow Emeritus, or something to that effect. James Pierce James, thank you for coming on the podcast.
- [06:00]
James Pierce
My pleasure.
- [06:02]
Scott R. Anderson
We are thrilled to welcome you to the halls of Rational Security, the Lawfare podcast Weird Cousin as we dig through a couple of national security news stories, a few which I know you've been following along with Ben and Quinta, almost all of which relating to the Justice Department and the courts, all of which have been very busy this past week. Topic 1 for today midnight planes going anywhere. The Supreme Court has weighed in on the Trump administration's decision to quickly fly dozens of Venezuelan nationals to El Salvador with little to no meaningful process, holding that those detained had to be provided notice and an opportunity to challenge their removal, but only through habeas in their place of detention. Meanwhile, we are still waiting on the court's final decision on whether a lower court can direct the executive branch to seek the return of another man who has removed El Salvador by mistake. What will these decisions mean for the Trump administration's aggressive deportation policies? Topic 2 All the King's horses and all the King's men won't be able to put Humphreys together again watchers of the D.C. circuit may have suffered whiplash this week as an appellate panel reversed a district court's conclusion that the Trump administration's removal of statutorily protected members of the Merit Service Protection Board and National Labor Review Board was most likely unlawful, only for that panel itself to be reversed in short order by the whole en banc court. The issues now seem clearly poised for review by the Supreme Court. Is Humphrey's executor and other case law preserving independent agencies toast, or might the court stop short of killing them altogether? And topic 3 a duty of Pander Attorney General Pam Bondi. That was pretty good. I don't know. I was pretty proud of that.
- [07:33]
Benjamin Wittes
I came in with that Humphreys executive pun better.
- [07:35]
Scott R. Anderson
It was pretty good, too. I tried to do a lot more with the poem, and then it turns out it's a pretty crap poem, so it was hard to do a lot more than that. But what do you do? Topic 3 A Duty of Pander Attorney General Pam Bondi punished a Justice Department attorney this week after he admitted to a federal court that he had not been provided adequate answers to some of the court's questions. It's the latest in a parade of disciplinary actions accusing attorneys of disloyalty for engaging in candor with the federal courts over the confusion that some of the Trump administration's policies have caused. Is the attorney general within her rights to crack down on these actions? And what impact will her demand for loyalty have on the Justice Department's relationship with the federal courts? For our very first topic, I want to turn first to you, James. I'm actually probably going to turn to you first for a lot of these because I know you've been following these for a number, a number of these cases for us in the few weeks you've been with us here at Lawfare. We've had a pre 2 pretty monumental. We've had a number of monumental and interesting Supreme Court decisions, but one already teed up actually just came down last night before we recorded this. And recording this, I should Note, on Tuesday, April 8, around midday, another one pending now recently came to the Supreme Court subject to administrative stay. The first one is the JGG treat trip JGG case that we have all been following. This is, of course, the Trump administration's decision to use the Alien Enemies act to try and remove a number of Venezuelan nationals with little to no process from the United States that has been being litigated in D.C. federal court. Supreme Court, after holding the case for a few days, ruled that, in fact, the D.C. court did not have jurisdiction to review those challenges. They had to be brought in habeas in the place where these individuals were detained, which currently is El Salvador, but had previously been Texas. Although the named plaintiffs, I should note, are still being held in Texas, several of them were not removed. But at the same time, the court also said you need to provide these people notice. Notably, it says notice after the date of this order, which is kind of an interesting little addition, and then also said this procedure has to be in place, some sort of ability and opportunity to challenge through habeas proceedings their detention. Talk to us a little bit about your sense of this opinion and its implications. What is the court trying to do with this decision in the broader contours of this use of the Alien Enemies act, which it doesn't touch the merits of? This is strictly a jurisdictional sort of question. And I'm curious both how surprised you are by this holding and also what impact where it says about where the court may be headed in terms of a trajectory.
- [10:10]
James Pierce
Yeah, so there was a lot packed into to what you said and I think, as your setup suggested, a lot packed into what's happened over the last few days and weeks. I mean, the opinion, I don't think I wasn't particularly surprised in a lot of ways. I think what the Court's majority, the 54 majority did tracked a lot of what Judge Walker had set out in his dissent below. And I think, you know, sort of backing away from the doctrinal questions, some of which I'm probably not as as well positioned to address as as others are potentially others others here. I think the court was trying to walk a fine line between making, sort of suggesting it was providing a, a way for for individuals to challenge or to have some process. Now, as I think we'll probably get into, it's extremely unclear that there's any process. In fact, it doesn't seem like there's any process for those folks who are already in El Salvador. Right. But it is interesting how sort of a through line throughout the short precarium is is there's there is process available. You've got to make sure you go to the right. You've got to file it in the right place. And as I think you suggested, Scott, I mean at least as to the five name defendants, there is we think they are still in the United States. They could I think, I think it's the Southern District of Florida could start their habeas actions there. But there's a real sort of disingenuous disingenuousness about that precisely because and this is teed up in many respects in the Abrego Garcia case as well. There are just huge numbers of folks we don't know the precise numbers, 200 and something somewhere between 200 and 300 at least, I would assume, who are out of the United States already in El Salvadorian custody. And as far as I understand the opinion, I'd be curious if others read it differently. Those folks are just out of luck right now. They have no, no mechanism to to challenge the the fact of their removal. And so I find that very troubling as certainly the the dissenting justices did as well in terms of the trajectory. I guess I would hesitate a little before seeing what the court is going to do in the Abrego Garcia case. I suspect we're going to see that today. If not today, I would be surprised if it goes any further than tomorrow. Within the last hour, the government has come back and filed its reply. I haven't had a chance to really put meaningful eyes on it, but it is all teed up and ready for the court there. My inclination or sort of my sense is it strikes me as hard to count votes that would endorse what the government has done here and say it's, you know what, you picked up the wrong person. Not removable. That person is now a foreign country. Oh, well, like that's, you know, courts can't reach that any further. I think Judge Wilkinson, in his, in his concurrence, try to give a little bit of an out here using this facilitate language. I think the, the Abrego Garcia's attorney sort of picked that up as well. I could see the court saying something like, yeah, the government's got to facilitate, make every, every effort possible to bring this, this, this gentleman back. And then it's really hard to know what that would, what that would look like. I mean, the government could say, yeah, we tried, you know, we had a conversation with the president. He said no. Okay, so you know, what that will mean in practical terms, I think is a troubling question in and of itself, but it will be very interesting and I do think telling to read the two of the opinions together, the two of the decisions together when we have them both.
- [14:01]
Scott R. Anderson
Yeah, it's worth noting, the Garcia opinion, just to tee it up for, folks. That's the one I mentioned at the top about an individual who was removed from El Salvador to El Salvador as part of these flights carrying these Venezuelan nationals. But he was himself actually an El Salvadorian national and had a court order saying he was not to be removed to El Salvador because he was found to have a reasonable risk, a reasonable belief that he was at risk of, I believe it was gang violence as a basis for withholding on his removal, but he was removed anyway. And what the government has admitted is administrative error. The question is now, can a district court or any other court compel the government to seek his return in some way? Quinta, I know you've been looking at these cases too. Give us your sense of about it. What is the court trying to do with these sorts of holdings, this kind of halfway win, half loss by at least in the JGG case in regards to the name plaintiffs who haven't been removed yet. We can talk. I want to shift to the people already in El Salvador in a second. But for those people, it strikes me that this is actually more of a loss for the government as a technical win because, yes, they won on their argument that these arguments had to be go through the fifth Circuit in this case because these individuals are being held in Texas, I believe, last time I checked. But the reason we know the federal court wanted this go to the 5th Circuit at least I strongly suspect is because they thought the 5th Circuit be relatively friendly to their use of the Alien Enemies Act. Because they interpret the Alien Enemies act as saying, no process is really required. And here the court has clearly already ruled on that, saying, no, there's some process required. Now, what that looks like in practice, maybe that's where we see more budget. We'll see the government continue to push back. But if their goal was to get a process, less process, removal of power, they appear to have lost on that ground already in a way that's gonna be hard for the fifth Circuit to ignore. Am I wrong on that, that this is like a little bit of a Pyrrhic victory for the executive Branch, for the Trump administration, at least in regards to people already still in the country, or is there still something going on here that I'm missing?
- [15:59]
Quinta Jurecic
Yes and no. I mean, to the extent that the administration was moving forward full speed ahead because it thought that it could get five votes for the proposition that the removals under the Alien Enemies act require absolutely no process of any kind, just kind of whisk people off in the middle of the night, this is absolutely a loss. This does clearly require that there be some level of process, though it is not clear precisely how much process it requires. And it is also true that, as Justice Sotomayor notes in her dissent, that if the government continues here, I'll just actually. Let me just read the quote. This is from Justice Satmayur. To the extent that the government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court. So that is something that, at least as I read it, all nine justices agree on. It is certainly significant. The thing that makes me frustrated by this ruling is that it's not clear what that actually looks like in practice. So as we've been saying, the per curiam ruling says that AEA detainees must receive notice that they're subject to removal under the aea, that it must be within a reasonable time, and they must be able to actually seek habeas relief. I should say habeas is very specialized and complicated. I am not at all an expert. I defer to those who are. My sense is that it is not clear what any of those terms mean. You know, what counts as notice. What is a reasonable time? What does it mean to be able to actually seek habeas relief? All of those things are unclear. As you say, Scott, they're going to have to, or the people who are currently detained in the US will have to bring it in the district in which they're being detained, which for many people is going to be the fifth Circuit. We've seen some sort of shenanigans from the government of moving people around in the Bakhmut Khalil and the Ramessa Osterk cases seemingly to try to evade review from judges in the district in which the individual was initially detained. So I think that's kind of an additional layer here. And then there's these other problems of it's not clear, for example, whether you can pursue by. Sorry, whether you can proceed by class action here, or whether you have to go one by one, in which case the fifth Circuit is going to suddenly be hit with hundreds of individual habeas actions. I will note that just before we started recording, the ACLU actually filed what I think is an attempt to file a habeas class action suit in SDNY for, I believe, Venezuelans detained in that district who may be subject to removal under the aea. So I guess we'll find out. I went back and was looking at some of the transcripts from oral arguments and the D.C. circuit's ruling, and there's real uncertainty there about whether or not you can certify a habeas class. Judge Walker, who was dissenting and who, as James noted, the court really seemed to sort of pick up his baton here, he indicates a real doubt whether or not class certification is possible in the habeas context. So I think that just means that it's not going to be possible to kind of address this in one fell swoop. We're going to have to go one by one, one or potentially, if the ACLU isn't successful here in a way that just makes it very, very difficult to actually potentially access the relief that these individuals would want. I think that does for me raise the question of how the administration actually wants to proceed. Certainly it seemed like the appeal of the AEA for them is that it was this kind of magic switch where you could just sort of declared yourself to have the authority to just remove people in the middle of the night. Now that is not the case. Are they going to try to continue to fight this out or are they just going to try to go through the normal processes under the Immigration Nationality act, which are not hugely protective of people who are in immigration detention. And so to the extent that they felt that they kind of found a cheat code, I don't think that that's true. The problem is that the route that the court has found that they need to go through is one that I think it's fair to say secures a lot of advantages for the government and makes it a lot more onerous for any plaintiff.
- [21:00]
Scott R. Anderson
Ben, I want to come to you for your take on this, too, and particularly I feel like I have to give you some plaudits, although it may not be plots you necessarily want because you actually called the outcome of this case, I think pretty on and that your instinct very early when we heard this is that, well, how is this habeas action being brought in D.C. district Court? I was a little more bullish, admittedly, that the APA route would work, but was wrong, obviously, which I hate saying. But I will concede you, I will say when I was trying to learn about habeas as a law student, as a young State Department lawyer, I read a lot of Ben Whittis on the military commissions and the cases leading to military commission detention cases. So it's something you have done a lot. And I think you are probably in a similar position as I am, is trying to dust off a lot of vague partial habeas knowledge of yesteryear and revive that's newly relevant once again, for better or for worse, Almost certainly worse. So talk to us a little about your take on this, where this fits in and what this means for remedies for people on stateside as well as overseas. I mean, the ICA cases going to bear on that, obviously, as to whether if there is something wrong, somebody can be compelled to bring them back. But you know, this could have implications for that independent of the outcome in Garcia that we may see as soon as today.
- [22:14]
Benjamin Wittes
So I am much less worried than Quinta is about what this looks like in practice for people who are still in the United States. And the reason is that the the Supreme Court didn't reach the merits of the legality of the proclamation, which is frankly unlawful by any standard that you, you know, if you're an originalist, if you're. Yeah. I mean, you have to be a fantasist to uphold that. And so I don't actually think it matters very much whether you determine the legality of that proclamation in the 5th Circuit or the D.C. circuit, it's eventually going to be decided in the Supreme Court. And let's remember that when it is decided in the Supreme Court, the question, the threshold question is is Trent, the government of Venezuela? And the threshold question when they do that is whether the gang Trenda Aragua is or is not the government of Venezuela and whether the president has by dint of the statute, the ability basically to declare it as such, then all of that. And secondly, whether we are meaningfully in a facing invasion by Venezuela or Trend Aragua or, you know, whether we are in a declared state of war, all of these are threshold questions for the legality of any of these detentions and deportations. And it's flamboyantly illegal. It's not, it's not a marginal call. And so I think whether you challenge it under the Administrative Procedures act in D.C. or whether you challenge it in an individual habeas case, when that question works through the system, but you give somebody notice, they have an opportunity to say, hey, by the way, I'm not a member of Trend Aragua. And even if I were, we're not at war with Trenda Aragua, which is not the sovereign government of, of Venezuela. And by the way, we're not at war with Venezuela. So I'm not an enemy alien. They get to make that argument. And I don't, you know, Maybe there are three votes on this on the 5th Circuit for the sustainability of that position. But I do think at some level the Supreme Court is saying to the administration here, look, fight this in any court you want. We're going to, you know, give you a little time to work this one out, but don't be silly. And I think that's the subtext of when Brett Kavanaugh writes, hey guys, we're all in agreement that you get due process. The only question is where. I think there's a bit of a face saving climb down opportunity there for the administration. To me, the part of this opinion that's really troublesome is actually not. It's twofold. One is because it vacates Judge Boasberg's order, it seems to let the government off the hook for having violated that order. Now, Judge Boasberg in the first instance, I suppose, gets to decide what to do with his contempt proceeding. But it's hard for me to believe that he's going to go on what I thought was going to be a significant undertaking to identify who had violated the order in order just to have that person say, you had no authority to issue that order in the first place. But the second thing that's even more troubling about it to me is the 260 people who have already been deported and they are, as James says, kind of out of luck. With one important caveat possibility, which is that in the rasul case in 2003, the Supreme Court allowed a habeas claim from Guantanamo, though it was outside of the, you know, territorial jurisdiction of any U.S. court. And it did it in D.C. and it allowed that challenge to proceed in D.C. so you're going to see on behalf of some of those 260 detainees a claim that they are still under constructive US custody in El Salvador because we arranged for the El Salvadorians to take custody of them, we're paying them to hold them. And so there's going to be a claim that those people are still effectively in US Custody under some subcontracting arrangement with the Salvadoran Gulag Corporation, which is going to mass masquerading here as a sovereign government. And then that case should be allowed to proceed in DC Under Rasul, at least as I read it. So I think there is that. That case is going to be very dicey for all the reasons that James described. But I think the government actually doesn't get much with respect to the people who are no longer here, who are still here, except maybe relief from the wrath of Boasberg.
- [28:21]
Scott R. Anderson
I tend to lean towards that belief as well, Ben. And I, frankly, part of me wonders whether we're going to see the Alien Enemies act actually still be relied upon after this, because it's not clear to me what the marginal advantage is for the administration if they're proven wrong on the procedural point, which they seem to have been. And they're gonna have to have a big legal fight to vindicate any substantial marginal difference. Because at least with tda, because it's designated fto, they actually really are genuinely subject to removal in a way that's much more legally sound. If maybe people have basis of objection to it, you have to go through more conventional removal proceedings, but you already have a basis for doing that on that ground. So it's not clear to me, maybe this is going to be like the sort of symbolic fight that the administration wants to get, just to get like a big win in for presidential power of immigration. That I would not put that past them. But barring that, I don't see the strategic legal advantage, but on the foreign folks. I want to come back to James and Quinta on this, but I'll put in my 2 cents first. Like, I think you're 100% right. The question now is, can these people get habeas? And that would probably go the D.C. circuit if we follow the kind of Guantanamo logic. And I don't see a reason why we shouldn't unless Supreme Court tells us otherwise, because sometimes they have taken departures of Logic that we don't fully anticipate. I'm really pessimistic that even the D.C. circuit will find if it follows its precedence, that these people have habeas. We have to remember Bagram Air Base, like a facility of which the United States was more directly involved in. The D.C. circuit basically said no, habeas does not run to Bagram air base in 2010 in Mokilawi Gates. And I think if you follow that logic, I want to read it more carefully and I hope I'm wrong. And part of it depends on the arrangements we have with this facility in El Salvador, which is not entirely clear. So there may be opportunities for meaningful discovery around that, although just wait for the state secrets privilege to get invoked in relation to that again. But it is, I think the standard's a really high one. I do wonder though, if there might not be other grounds for compelling actions like we're seeing. They're going to see a case to try and get response because of course, these people aren't the only ones harmed by this sort of action. Family members, particularly in the Garcia case where he was the breadwinner for a wife and family who are here in the United States, should normally be able to sue for financial damages, you know, salacium, loss of association, a variety of other harms. And I don't see a reason why they couldn't pursue an APA action because the reason APA action is unavailable here is because these people have habeas. But those people can't pursue habeas claims. Only the individual can. If they're overseas and habius doesn't reach them, there's no alternative remedy. It seems like then the APA would come back into play as the right avenue to pursue that claim. And that might distinguish potentially Garcia, because I think that's more or less the avenue that the Garcia case is pursuing along. I could be wrong. James, what do you make of all this? What should we be thinking about for the folks who are overseas? Is there potential for a remedy for them still from the logic of this case? Or do we really have to wait for Garcia to see where the court's going with this?
- [31:19]
James Pierce
I remain pessimistic and I should start with the caveat that although Rasool is somewhere in the sort of caverns of my memory, it is certainly not something that I've looked at recently, nor the case that I think you just referred to. Scott, at the D.C. circuit treating Bagram as outside the reaches of where habeas jurisdiction could get you. I tend to agree that, that whether or not this Sukkot, this Salvadorian prison is functionally under the US Control or under constructive US Control will turn to some extent on whatever this agreement is between the US And El Salvador. But I just have a hard time imagining that ultimately between the whatever defenses the government puts up, whether it is state secrets or just saying, listen, courts, you don't get to go nosing around in foreign relations. Kind of the, the same genre of argument that we've seen in the Abrego Garcia cases case, excuse me, that the avenue of using the District of Columbia and the D.C. circuit as a place for the detainees who are in El Salvador already strikes me as a very unlikely avenue. Now, I don't think I have enough sort of knowledge about this other, this sort of, you know, what you suggested, Scott. Right. That somebody could potentially, you know, file on behalf of the detainees, whether it's dependents or whatnot. Do we think that would have to go through D.C. as well, or would it be where they reside? I just, I just don't know how that, how that operates. But, but on the core question, and this is the same thing that, that kind of gave me pause at least looking through JGG, that, that there's really anything for the 260 or however, you know, the number is precisely, we'll, we will learn, I think, something from Abrego Garcia and kind of what the court imagines there. Right. I mean, it's hard to, it's hard to imagine that Abrego Garcia is a case of one, although that is the very phrase that he starts his response with. Response to the stay application. I think probably pushing back a little bit against and I think effectively so some of the concerns about the class certification or nationwide injunctions, whatnot. But I imagine that there could well, in fact, it seems likely that there are others who are swept up. I'm certainly there's some reporting on suggesting that there are various folks who have, you know, were improperly designated as trendroragua when really they were, you know, their tattoos meant something else. So, you know, whether the government will come forward and say, yeah, you're right, there are others that, that we've that are sort of wrong, you know, that are like Abrego Garcia, that are there by mistake, then what? Right. But I guess I have again, a tad more pessimism than that. Perhaps you are Ben, along these lines.
- [34:26]
Benjamin Wittes
I agree with you, Scott, that the D.C. circuit opinion in Makala, which is the Bagram Air case, Air Base case, seems to preclude habeas jurisdiction over, you know, El Salvador. But I do think there are some features of Makala that may make this different. And so Makala, one of the key points, and it's been a while since I've read it, is that Bagram is in an active war zone as distinct from Guantanamo. There was also no suggestion in Makala that these detainees, the petitioners, were brought there in order to evade the jurisdiction of the habeas courts. And here, by contrast, the petitioners will all be able to say, hey, the Supreme Court has said we had a right to notice and, and habeas before we were deported under the Alien Enemies act. And you whisked us away in violation of a court order in order to evade what the Supreme Court has. 9 Nothing said was our habeas rights, and we remain in the constructive custody of the United States, assuming they can establish that. So I do think, you know, as a very formal geographic matter, Makala is, you know, precludes jurisdiction. They are farther from the custody of a custodian who is a proper habeas respondent than the petitioners in Makola were. But if you follow the, if you look at it from the point of view of the trajectory of government conduct to get them there, it's a much more appealing habeas case, in my view, than the Makala petitioners had. And I do think the fact that you're not dealing with supposed Al Qaeda terrorists in a war zone, but people who were rounded up off the streets and put on a plane in order to evade the habeas jurisdiction of the US Courts is a much more appealing framework.
- [36:57]
Scott R. Anderson
I think those are really, really well stated points, although I will know the Trump administration has already argued that these are, in fact, narco terrorists engaged in a warlike invasion of the United States.
- [37:07]
Benjamin Wittes
Now, Scott, but I'm not sure the.
- [37:09]
Scott R. Anderson
Courts are quite buying that framework.
- [37:11]
Quinta Jurecic
I mean, I think it's worth noting, look like whatever the, whatever the outcome is here in the end, that functionally what this means is that the people who are being incarcerated for absolutely no reason other than a sort of aesthetic performance of immigration crackdown in this facility in El Salvador will be detained there for longer, that it will take longer to figure out whether or not they are getting out. And when we say Salvadorian gulag, I know it doesn't sound particularly pleasant. I think it is worth emphasizing that this is a facility that has increasingly been the subject of complaints and alarm from human rights organizations and press organizations around the world. It was constructing specifically to incarcerate as Many people as possible in as small a space as possible. By all accounts, the conditions inside are horrific. Prisoners are not allowed to go inside. It's crowded, there's very little food. And so I do not think at all that it is an exaggeration, speaking colloquially, to say that these people were rendered illegally to this prison and they are now being tortured. And the per curiam, the folks who rule with the procureum on the Supreme Court seem unconcerned by that and by the time that it will take to potentially figure out whether or not they can get out. And I think it's completely fair. That may not feature in the legal arguments about whether or not they have a habeas claim to make here. But it is important not to lose track that that is what has happened to these people and they may now be stuck there forever.
- [38:53]
Scott R. Anderson
Very important contact. I think we all need to bear in mind the human costs of all these procedural and legal debates. Well, let us go on to our second topic, a very different sort of removal. In this case it is the removal of executive branch officials, a particular species of executive branch officials. These are those participating on different types of independent agencies and related bodies. Specifically at issue now resolved by the D.C. circuit as far as it will go, waiting at least except the preliminary measures, I guess we're still waiting for full resolution by the D.C. circuit both at the panel. The en banc phase is two cases relating to two such bodies, the Merit Service Protection Board, the NLRB or the Trump administration stepped in, removed these people, claimed the authorities to do so early on. They have been at various points reinstated into office by district courts, removed from office by panel of the D.C. circuit, reinstated by the now the En Banca D.C. circuit. I think the next procedural step at this point, unless there's a decision to move the Supreme Court, and I don't know if we've seen that yet, although I may have missed, it would be actually a hearing before the panel that's going to hear a resolution. This I could be wrong, but I think that's coming up next. James, you've been following these cases really closely. Talk to us about what led the D.C. circuit en banc to move. I think with actually kind of an impressive amount of alacrity to reinstate these folks over the panel. I was not surprised by the outcome at all. It was a very kind of disrepresentatively conservative panel that ruled on this case initially. This is an issue that seems to split pretty cleanly along partisan lines, more or less not surprisingly because it's been a focus of kind of the conservative legal movements for a long time really since it was founded, meaning the Federalist Society and kind of adjacent groups. So talk to us about where we think this matter is headed next. It inevitably is going to end up in the Supreme Court. I have trouble envisioning any sort of other outcome. And we know there are other cases following in its wake, in particular most recently the Federal Trade Commission. We saw several commissioners removed there who are also filing a lawsuit and being much more public about tying it to in particular the Federal Reserve, which has a similar statutory structure whose independence could also be endangered by a contrary ruling on this. Something that weighs into policymakers minds at least, at least outside this particular administration. Maybe or maybe not in the minds of the court. Talked about where you think this case is, how it's teeing up these issues and where we think it's going to go, both procedures and to the extent we've gotten any sort of signals from the court about how they feel about this issue set.
- [41:33]
James Pierce
Yeah, so I think, I think there are a lot of interesting things that are, that are going on here. And just to kind of address the procedural point first, when the en banc court, as you said, quickly moved to undo what the panel had done, in other words, to effectively reinstate Kathy Harris to the Merit Systems Protection Board and Gwen Wilcox at the National Labor Relations Board, that then put back on track the expedited merits briefing. And in fact, though I've only just looked briefly at it, we just today got Kathy Harris's appellee brief. So the government is the appellant here. They filed their opening brief, I think it was on March 27th. So at the end of last week, perhaps the week before, we just got the appellee brief. We'll see one from Wilcox as well. And then the reply brief I believe is on a similarly expedited timeline. And I think we'll see that in the next week or so, perhaps even less than that. The D.C. circuit has already set oral argument in this case. What is very an interesting feature is that the merits panel is the very same motions panel that already has ruled against, against both Harris and Wilcox. Right. So and it's very hard to see how and just to remind everyone that's Judges Henderson, Walker and Millet. And I think as you fairly said, Scott, Judges Henderson and Walker are generally grouped in the D.C. circuit's conservative wing along with judges Katzis and Rao. And lo and behold, when we saw the en banc order drop yesterday morning, it was essentially a 7 to 4. There are 11 active non senior judges on the D.C. circuit and they split 7 to 4 on reinstatement. There was a little bit of different. The chief judge, Chief Judge Srinivasan would have also allowed for some extra time for the government to seek Supreme Court intervention. And that's kind of where I'll go next on the procedural point. But it is interesting that although right now the next step is merit merits briefing, you're going to do that in front of a court where we kind of all know the views of the judges because they have issued 114 pages where judges Walker and Henderson view essentially what the Supreme Court's more recent precedents in cases like Seal of Law and Collins narrowing the, the exception to the President's removability of officers, you know, for multi member cases, multi member for boards to in Judge Walker's words, just the 1935 Federal Trade Commission and nothing else. Nothing that including I would, I would think you know the, the Slaughter case you, you made reference to Scott, which is folks who have been removed from the Federal Trade Commission itself, which you know from one perspective would be squarely on point since the 1935 Humphreys executor case also involved the FTC. You've got the same agencies, albeit at two points in time. So where does that all leave us procedurally? I would be surprised frankly if the government doesn't seek Supreme Court intervention here. We have not, at least I have also not seen a stay application yet. And we have certainly seen that the Solicitor General in this administration has not been shy in going to the Supreme Court with quite a bit of regularity I should say too folks probably noticed this, but within the last, I think three or four days we actually now have the confirmed Solicitor General John Sauer, who has now then replaced Sarah Harris, who'd been operating in an acting capacity. His name I believe was on the briefing and the Abrego Garcia filings, including the reply that was just filed. So I think this is, I think it's 100% correct. This is headed to the Supreme Court. The only question is whether there's stay posture litigation or whether the parties wait to do this in front of the panel. It would be odd if again if they go to the panel because if the challengers lose there, or at least the challengers of the government, but if the NLRB and MSPB folks lose there, presumably they would again seek en banc. And one wonders why you would go through this charade if we've already got a signal of where folks are. Last thing I'll say is you're right that certainly Harris has made a big point of the Federal Reserve and trying to discuss what are the consequences to other agencies or to other similarly constructed bodies. And the Fed is the biggest elephant in the room for all of these. And I haven't seen the government in its briefing or in its oral argument really offer a compelling argument beyond sort of well, the Fed is a unique body with a unique history. History not offering a kind of doctrinal way to carve that out. So I assume that we will see that at some point, either in its stay application, if that comes, or I didn't see it in its top side in its opening brief, maybe in the reply because for my quick skim, my control f of the of the Harris brief or the Harris brief just filed, Federal reserve shows up 16 times. So they are, they're very much teeing that point up front and center. The government at some point, though it does not like to try to say too much, will have to, I think, confront this either in the D.C. circuit or certainly in the Supreme Court when it gets there.
- [47:02]
Lawfare Host
What does the future hold for business? Ask nine experts and you'll get 10 answers. Bull market. Bear market rates will rise. Rates will fall. Inflation's up. Up or down. Tariffs are in, they're out. Can someone please invent a crystal ball? Well, until someone does, more than 41,000 businesses are future proofing their business with NetSuite by Oracle, the number one Cloud ERP bringing accounting, financial management, inventory, HR into one fluid platform with one unified business management suite. There's one source of truth giving you the visibility and control you need to make quick decisions, real time insights and forecasting. With that, you're peering into the future with actionable data. When you're closing the books in days, not weeks, you're spending less time looking backwards and more time on what's next. Okay, I'm going to be really honest with you. Lawfare not doing this level of business yet. We're a small nonprofit, but we're spunky and we're going for it. And if we were doing this volume, we would be right there with netsuite by Oracle. So whether your company is earning millions or even hundreds of millions of dollars, and if it is doing the latter, why aren't you donating some of that to Lawfare? NetSuite helps you respond to immediate challenges and seize your biggest obstacles. Opportunities. And speaking of opportunities, download the CFO's Guide to AI and Machine Learning at netsuite.com lawfare the guide is free to you at netsuite.com lawFare that's netsuite.com lawfare DeleteMe makes it easy, quick and safe to remove your personal data online. At a time when surveillance and data breaches are common enough to make everyone vulnerable, your data is a commodity. Anyone on the web can buy your private details and the data brokers make a profit off of your data. But this can lead to identity theft, phishing attempts, and harassment for you. But now you can protect your privacy with Delete Me. I'm active online. I also have enemies. For some reason, there are these people out there who don't like me very much. So I have to be out there on the one hand, but my privacy is really important to me on the other. I've had online harassment, identity theft. There's a reason for all of that. There's this data about me that's all for sale. My name, contact information, Social Security number, home address, even information about my family members. And it can all be compiled by data brokers and sold online. Or at least it used to be. Now Deleteme keeps an eye out and gets the data brokers to delete sensitive data about me before people can use it against me. So take control of your data and keep your private life private by signing up for Deleteme now at a special discount for our listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.com lawfare20 and use the promo code lawfare20 at checkout. The only way to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter the code lawfare20 at checkout. That's JoinDeleteMe.com Lawfare 20 code lawfare20.
- [50:58]
Quinta Jurecic
It'S a cold day here in Alaska, but.
- [51:01]
Scott R. Anderson
There'S one animal seemingly unaffected, bright eyed.
- [51:05]
Quinta Jurecic
And determined enters the husky. Observe as they go up the mountain. Guided by pure instinct. They are truly amazing masters of this wilderness. But even these amazing pets can't sign up for Lemonade Pet Insurance. You can sign up now@lemonade.com Amazing.
- [51:28]
1-800-Flowers Ad
I don't know about you, but the number one thing I look forward to when I return from traveling is a good night's sleep in my own bed. That has never been more true than it is now that I have a sleep number smart bed. I get so sore after traveling on planes. But after literally one night in my sleep number smart bed, my body feels restored, rested and relaxed. The fact that my bed actually listens to my body and adjusts to my needs to keep me sleeping soundly all the way through the is worth it alone. Not to mention, my husband and I never need to argue over firmness because we can each dial in our own sleep number setting. Why choose a sleep number smart bed? So you can choose your ideal comfort on either side. And now for a limited time Sleep number smart beds start at $849. Price is higher in Alaska and Hawaii. Exclusively at a sleep number store near you. See store or sleepnumber.com for details.
- [52:18]
Amazon Music Ad
Hey prime members, are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com ADFreePodcasts that's Amazon.com ADFreeP Podcasts to catch up on the latest episodes without the ads.
- [52:48]
Scott R. Anderson
Quinta, let me come to you next on this. You know there is, this is all kind of a meta conversation, right? Like in theory, this is a debate about these specific officials and these specific agencies. But really what we know everybody is doing is engaging in a bigger line drawing exercise. We're trying to say is there any space left for a congressional role in setting up limits on the President's removal power or has that gone away entirely? And then the question is, how far does that run? Is it these cases are dealing with, okay, Office of Special Counsel. And then here we have which is the Dellinger case, which has now been kind of mooted out by his resignation. But now we have the MPSB and the nlrb. Later we're going to have the ftc, the hypothetical universe going to have Federal Reserve maybe one day you have day to day federal employees where we certainly hear the administration say a lot rhetorically about the President having the authority to remove just federal employees from the bureaucracy, but implicates a much even broader scope about federal control and presidential control over the federal government. How do you approach and think about these sorts of line drawing exercises? It's rare you so clearly have an administration driving constitutional change to try and effect it. That's something this administration is doing on a lot of different fronts, including this one, as well as birthright citizenship and a couple other different areas. So how do you think the court, I guess, is juggling these line drawing exercises?
- [54:17]
Quinta Jurecic
Honestly, and I'm, I'm curious what everyone else thinks of this. I do feel like this sort of pushing ahead with getting rid of Humphrey's Executor, under this aggressive vision of the President as someone who has the power to appoint and remove at will across the executive branch, is kind of the dog that caught the car in that. Not only. Sorry, let me do that again. In that we're finally at this moment where it seems like the dream of getting rid of Humphreys executor. The moment might finally be here. We have the bench that you would want if you wanted that to happen. You have plenty of test cases. And yet the person in charge of the executive branch is a crazy person and is giving plenty of demonstration about why it is dangerous in all kinds of ways to have the executive branch really sort of directed at the whims of a specific individual. And that is true across any number of agencies. I mean, we're going to talk about presidential control over DOJ in a minute. I think that's another manifestation of this sort of question of checking the President and accountability. We see that, of course, with the MSPB and the question of the ability to be able to kind of work for the federal government. And I think the Fed is the perfect example where we have seen under Trump in a way that we have not seen in previous administrations, a sort of sustained pressure on the Fed to lower interest rates. And that Trump, I believe at multiple points has indicated that he was at least toying with the idea of firing Chairman Powell. And so if that were to happen, especially at a moment, I will say I have not checked what the stocks are today. I assume they have gone down. And that I would imagine that if you were to remove Powell at the Fed, that that would not help with this uncertainty and would not calm the markets. And so that the sort of real world costs of allowing the President to remove people at will in that sense become immediately apparent. And so maybe if you're a really hardcore, really just gutting for Humphreys executor, you don't care about that. But I have to believe that at least some members of the court, including of course, John Roberts, that that does matter to them. And so I wonder to what extent the sort of chaos that is so ambient right now will actually hold the court back from sort of going all in on overturning Humphrey's executor, whether they'll be more willing to carve out exceptions, at least for the Fed. Because it really does strike me that what we are seeing now is kind of like the bottom of the slippery slope that you would argue you might see if you were against overturning Humphreys.
- [57:47]
Benjamin Wittes
Don't Bet on it.
- [57:49]
Quinta Jurecic
I don't know. What am I not betting on?
- [57:51]
Benjamin Wittes
Humphreys executor needs an executor. It is a dead man, dead precedent walking. And it's been that since SELA law and maybe since the Scalia dissent in Morrison became a kind of whether it's really recited out loud at Federalist Society, you know, chanted out loud at FedSoc conferences, I doubt. But the kind of thing that somebody could make that allegation and people smile knowingly. Look, I mean, I think the conservatives actually believe in the unitary executive. And the great thing about the unitary executive is everything in federal is 70. And the awful thing about the unitary executive is everything in federal is 70 if the executive is a madman. And I think, you know, the. But they really do believe in it. And by the way, to some extent I agree with them. And there's something. And you know, if you run away from it when like, this is not something that John Roberts didn't think about the book. What if the President's a bad guy? You know, when he as a young man formed his beliefs about this subject. This is not something that Brett Kavanaugh has never thought about. And this, they believe this. And I think that, you know, to me the question has never been about the Fed, the question or about any of the senior positions. I don't even have doubt about the inspector general's stuff that they're all going to lose. I think to me the question is how far down the executive branch totem pole do you get to go before, you know, before the rule no longer applies? Right. Are the civil service protections constitutional? You know, can Cash Patel just wander in and fire half the FBI? Can you let go? You know, you know, can you do retaliatory firings? That's the question. I think where they're gonna may run into trouble. But I just think, you know, I just don't have any doubt that Humphrey's executor is going to be overturned.
- [60:45]
Scott R. Anderson
So, Ben, you and I have been on the opposite ends of this on our slack thread for like months.
- [60:49]
Benjamin Wittes
You're going to lose.
- [60:50]
Scott R. Anderson
I am. I might lose. But here's what I'm going to say. The Supreme Court had a bite of this apple. It had a bite at apple two months ago. It was the very first matter that came to the Supreme Court out of this administration. I believe I could, I could have the order wrong, but I think was the Dellinger case that came up to them when they tried to get them to reverse lower court order, putting Dellinger back in office just temporarily, and Supreme Court didn't bite. And, you know, Supreme Court's not shy about taking stuff up on the stocket. I think it only requires, I don't know exactly what the threshold is, but you only, you can't need more than five. We're seeing enough, five, four decisions coming out of this court on the shadow docket. And that reticence, I don't know, says something to me that there is some sort of idea that this may not be entirely prepared baked. And you see other cases where even judges who have been super, super lean forward on this rhetorically in academic writing. I think particularly Justice Kavanaugh wrote the lead opinion and was very active in questioning defending the CFPB's funding mechanism two terms ago. I think it was, and that is actually a very comparable question in terms of, of Congress's ability to insulate certain types of decisions from different types of control that otherwise might be compromising of the presidential authority and other types of authority. And it did it because it's all tied up with the Federal Reserve. Like they're hesitant to undermine this touchstone institution. And I think if you're going to preserve it, maybe the Court just comes in and says, we're going to take this, you know, we're going to slice this apple one slice at a time, and we're just going to address the MSPB and LRB and say, but every other institution's a little bit different. And so there's no line drawing exercise. We're just going to carve out these. And people have to figure out where other institutions fit on the scatter plot of being appropriate or not. And we're just going to litigate this out institution by institution by institution. That's possible. I think that's the only way the Court actually feasibly approaches this at this point, while still preserving the Federal Reserve, which I don't think it's willing to just deep six.
- [63:02]
Benjamin Wittes
I'll make you a bet, Ben.
- [63:04]
Scott R. Anderson
These. Oh, we, we do these. I am on top of the bets. The law for bets at this point, I think 3 to 2.
- [63:10]
Quinta Jurecic
But the best should be paid in, in eggs. Because if, if you're right, Ben, US Currency will be so devalued.
- [63:18]
Benjamin Wittes
The bet will be the only thing.
- [63:20]
Scott R. Anderson
The only value left will be our eggs.
- [63:21]
Benjamin Wittes
The bet will be paid as they always are in bragging rights on rational security. Loser has to eat crow. But I will bet you that when Humphrey's executor comes squarely before the Court, it will go down.
- [63:39]
Scott R. Anderson
I, I agree. Humphreys executor will go down. I think the question is whether Congress's ability to establish some sort of independent agencies will go down entirely. Alexander The Fed, I will say no holding is going to reach the Fed.
- [63:52]
Benjamin Wittes
Oh, so, so you want the bet to be does the. But then you need Trump to fire Powell. That question may never.
- [64:00]
Scott R. Anderson
The logic of the, the logic of the holdings won't reach the Fed and ambiguity will call it a tie.
- [64:06]
Benjamin Wittes
And what if they say we do not reach the question of the Fed.
- [64:10]
Scott R. Anderson
Because then I'm for umphramp, then I win.
- [64:14]
James Pierce
No, no, there's, there's no way that the court is going to say anything at, about the Fed in any of the cases.
- [64:22]
Scott R. Anderson
Don't ruin my bet, James this is why I want this stake on the Fed.
- [64:26]
James Pierce
Like, I mean, not that they're not going to say anything about it, but they're not going to preemptively address that. Right. I mean, I also tend to think that the NLRB and MSPB challengers are going to lose. I think they're going to lose in front of the Supreme Court. I think frankly, Slaughter and the other FTC defendant, excuse me, challenger is going to lose too. And that can be a square overruling of Humphreys because it's FTC to ftc. I think the real questions, and I tend to agree with Ben here, are kind of how far this extends and I would actually put in the same kind of category. Does it extend to the Fed? Are there differences that are material or for some sort of, it's hard to see doctrinal reason and so is the Court then trying to shoehorn some sort of doctrine into policy or policy into doctrine? And then the question, because we've certainly seen does it reach the Civil Service Reform Act? Right.
- [65:19]
Benjamin Wittes
Does it reach. James?
- [65:21]
James Pierce
Yeah, I mean, right, like, like people who, people who were civil servants who have been terminated. Right. I do think, and there, I think that poses some genuinely hard questions where I'm not willing to, to make any predictions. But I, I just, I just don't see the, the cases that are teed up before the D.C. circuit now, now I just don't see a path for Harris and Wilcox.
- [65:45]
Scott R. Anderson
Yeah, well, we will have to wait and see. I think we'll have opportunity to revisit this case. We're running short on time. So let's go to our third topic, not entirely independent. And this is the question of a topic we've kind of come to from a couple of different angles. And I think this is a relatively new one, this question of Justice Department independence. This past week, we saw at least one Justice Department attorney. Actually, I think there may have been more than one. Across a couple matters, I've been having remarks, rumors of, seeing rumors of, but one that's gotten the most attention where after having a moment of candor before the court, basically when asked about what information the lawyer had to share about how certain decisions were made in relation to, I can't remember the JG JGG or Grego Garcia case in regards to one of those cases, saying, quite frankly, when I took this case, I had the exact same question, your honor, how exactly this happened, indicating that he wasn't able to come to entirely satisfactory to answer himself from the information made available to him by the broader Trump administration, the broader executive branch. The attorney General, Pam Bondi, shortly put that person on administrative leave on the logic that they had failed to vigorously defend the interests of the United States administration. And this ties back to a theme we've seen from this administration, really from one of its first first couple days in office, emphasizing that the Justice Department's job is to vigorously defend the policy policies that the Trump administration puts forward. And failure to do that can be the basis for disciplinary action of various stripes. On top of that, it's not something we don't just see in the Justice Department, although it's the focus of our discussion here today, we've seen a very similar executive order about the State Department and foreign affairs agencies be issued, also threatening professional ramifications for officials who fail to adequately and with sufficient vigor defend and advance the foreign policy objectives of the Trump administration. So, James, you are our career Justice Department official of here person who spent the most time in the roles of the Justice Department. I want to ask you to drill down and illustrate for us the reasons why the executive branch might actually want prosecutors to be able to have this sort of frank exchange with the courts. To some extent, this idea about candor before the courts isn't just a professional obligation on attorneys, although it is that that exists in most kind of professional codes for practicing attorn, is that you have to approach the courts with honesty and in good faith, as well as other legal actors. But there's also a kind of a strategic element of it. You know, I was briefly a paralegal for federal prosecutors very early in my career before law school. And something that really got drilled into me by some of my supervisors is going for radical transparency with the court, trying to kind of go an extra step beyond what the court might narrowly request where possible, because it was so important to maintain the relationship with the court. So talk to us about how this fits into that, because it strikes me that the two are related to some extent.
- [68:37]
James Pierce
Yeah. And I think there's a kind of a dichotomy that's being drawn in this discussion between zealous advocacy and candor that I think is really a bit of a false dichotomy. And I want to get to that. But let me answer your question square on. I mean, I think related in part to something I believe Judge Boasberg may have said to a government attorney during the JGG hearings about. Look, at the end of the day, I tell my law clerks, your reputation is the most important thing that you have. I think, particularly for government attorneys, the credibility that you establish with the court is absolutely critical to your ability to continue. You're a repeat player. You're appearing before the courts. The judges are looking to the government to be candid and always, always transparent and straightforward with the court. And I don't see that to get back to where I started as at all at odds with zealous advocacy. Right. I mean, I, throughout my career always felt like I was, you know, I knew the position that we were advancing. Whatever my personal views, we were, we had a position to advance, and I was there to zealously advocate that position. At the same time, if a judge is asking challenging, hard, hard questions, I equally have a duty as a government attorney to answer those questions truthfully and candidly. Now, it's one thing to state that, it's another thing to deploy it. And I think one thing that may be somewhat helpful is, is to look at the example in the Abrego Garcia case where in my view, I think the Attorney General's actions were, or the, the deputy attorney general, whoever, you know, ever made the decision to place the lawyer on administrative leave was really short sighted. I think what that lawyer was trying to do was to be candid with the court and establish that very credibility and say, look, we are not fighting the fact that the government made a mistake on removability. We nonetheless have various arguments why that Abuel Garcia is not entitled to relief. You don't think the court has jurisdiction? We think it's precluded under the Immigration and Nationality act and the various arguments that the attorney advanced chance. Now, look, if you want a Monday morning quarterback, I think there are some things that perhaps he could have done slightly differently. So I think from looking at the transcript, he said something like, and you, you paraphrase some of these, Scott. I'll do the same. When it reached my desk, I asked this question. The answers I got, I didn't find satisfactory or it's been very frustrating. Right. And I know I did this myself, but I think it's never a best practice to personalize it to the court. It's not kind of like I don't find it satisfactory. It's sort of, it's, I think the way to phrase that as a government attorney would be some version of, you know, I understand the information the court is seeking. Unfortunately, I don't, I don't have any information that I can provide that's responsive to that. And you can just sort of draw a marker and say, court, I recognize that this is information that you would like. It's information that may be material to your resolution of this matter. I just, I am not in a position, I don't have that information. Information, and I'm not in a position to offer it to the court. I think that is functionally what the attorney was saying. As I said, you know, maybe he could have said it slightly differently so it didn't sound like he himself was frustrated or, or unsatisfied, which he may well have been. I'll speak from personal experience. I have articulated positions that I have myself disagreed with. I've, I've been in a situation where I've been asked questions where I know the answer, but I can't give the answer to the court and kind of gone back and forth, forth, and that's a delicate balance and a delicate dance and it's very hard to do. And so I thought it was precipitous of the Attorney General to, or the Deputy Attorney General to take that step. And to your point, I think at the top, Scott, or sort of the thrust of your question, you know, if the, if the Justice Department is not putting forward attorneys who can be candid with the court or feel that they've got to always advocate and try to, to obfuscate rather than be candid. I think the credibility that the Justice Department has established over many, many decades of, of repeat play appearances will just start to dissipate. And I think that that will have long term deleterious consequences for the, the Justice Department and the rule of law. Last thing I'll say, I mean, it's not for nothing that the Solicitor General is known as the 10th justice, right? The Solicitor General who represents the United States before the Supreme Court is known as a player, as an attorney that the Justices can always get or always should expect to get the government's best view, the government's best thinking and candid answers. And that should run all the way through the department. And to the extent this administration and the officials at the Justice Department are not furthering that message message I would be very worried for, again, the sort of the long term consequences for the department and for the rule of law.
- [73:30]
Quinta Jurecic
I mean, James, I'm curious for your thoughts on one thing I've been wondering about, which is separate from the sort of inherent dangers of going this route on the Justice Department's part. Is this going to help them in front of the courts? Like it? I worry. Well, worry maybe isn't the right word, but if I were sitting in the Justice Department, I might be concerned that if I'm putting an attorney in front of a court who is not able to give straight answers because of fear of retaliation and is sort of caught between a rock and a hard place, that, as you say, that is really going to eat away at this presumption of good faith that courts have with the Justice Department and that that may lead judges to be more critical, skeptical, willing to kind of push against the administration in contexts where they might otherwise have been willing to sort of give a little more leeway. I mean, what do you think this is going to do in the immediate term in terms of how the administration is arguing these cases and how they fare?
- [74:43]
James Pierce
Well, look, I mean, I think judges always have or should be critical and holding government attorneys feet to the fire. And so I don't know whether it will change judicial conduct that may differ judge by judge. But I mean, I think that's just your question is getting to a point I was perhaps poorly articulating, which is I do think it will undermine the credibility of department lawyers. Right. And I think that will mean that when it's not so much that judges will become more active in pressing and questioning, it's just that when they, they're just not going to get the answers that they need to resolve things. And I don't think that that will ultimately be helpful or beneficial to resolving the matters that are coming before the courts. You know, how that then gets spun politically or, or for press release purposes, I don't know. But I just don't see an upside here. That is a good one.
- [75:45]
Scott R. Anderson
Well, folks, that brings us close to the end of our time for this week, but this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. Quinta, what do you have for us.
- [75:55]
Quinta Jurecic
This week, I would like to recommend the movie Margin Call, which is a 2011 movie about the 2008 financial crisis. And as the markets were plummeting.
- [76:11]
Benjamin Wittes
On.
- [76:12]
Quinta Jurecic
Friday and on Monday, I went back and watched some clips of it on YouTube. I think it's fair to say it's the best movie about the financial crisis or the scripted movie about the financial crisis that I certainly have ever seen. It's a sort of very rapid play by play of sort of what things look like inside a big unnamed New York investment bank as they're kind of figuring out out just exactly how completely screwed they are. And there's a great scene where Jeremy Irons as the CEO sort of comes in and in this kind of saturnine way demands that people explain to him exactly what is going on. So I highly recommend it. If you, like me, have been looking at the stock market and watching the line go down. It's just incredibly well crafted movie and is something that is always a joy to return to and is unfortunately topical.
- [77:09]
Scott R. Anderson
You like the Big Short? It beat out the Big Short. Come on. With Christian Bale drumming madly, like every 30 minutes. Didn't bite. I kind of like the Big Short, but I haven't watched Marjorie Girl. I'll have to check that out. Fair. Ben, what do you have for us this week?
- [77:23]
Benjamin Wittes
So I want to draw people's attention. While we were all focused on the plummeting stock market, the Russians took the opportunity to murder a bunch of Ukrainian kids in a town called Kryvny Rysk, which largely escaped notice, I think, because of the turmoil of the world. This is the hometown of Volodymyr Zelensky. And the Russians bombed a playground where I think there were 18 people killed altogether, nine of whom were children. And so, and this was in the middle of a ceasefire or a supposed ceasefire. So I just want to point out that, you know, so you can announce that you're going to bring peace to the Russo Ukrainian war in, I think it was 24 hours after your election before you're even, before you're even sworn in. But actually doing it is a different matter. And while you cosplay as a Nobel Peace Prize winner, you know, the Russians actually don't stop killing people. So want to urge everybody to Google Krivi Rih and just learn a little bit about, you know, what was happening while we were all focused on the domestic stock market market.
- [79:19]
Scott R. Anderson
Truly, truly horrible development there and definitely something worth checking out. Well, for my object, listen, I will turn somewhat cheerier direction with apologies in that last night I people know who listen to the podcast regularly know that I am a frequent home pizza maker. I am chasing constant recipes and I've discovered a new recipe that I highly recommend will pass along to folks from the kind folks at King Arthur Flour. It is a pan pizza recipe that is notable primarily because you basically just prepare the dough just an hour before you cook it, which is amazing if you're responsible for cooking dinner every night as like I am because sometimes you don't plan eight hours ahead when you want to make pizza. That is the one downfall of homemade pizza. And this recipe, I gotta say it was pretty good. A little cakier than I like with my pizza dough. But I think if I left it, if I left it out for maybe two or three hours, it would have saturated a little bit more. The thing that really got me thinking in making this last night is that the best parts of pan pizza for folks who make it at home will know it's the edges that you want where the sauce and the cheese kind of toast to like a crispy, very sort of Maillard effect deliciousness. And it occurred to me why, why is there not all edges? And then it reminded me that Alan had bought years ago this brownie pan that just is all edges and that it just creates like an S symbol all the way down the middle of the pan. So I ordered one and I'm going to use it to make pizza next week to see how it goes. So I'll fill folks in on how the all crust, all edges pan pizza goes. I think it's going to be a huge success. I'm very excited about it. It will save my life and my wife and my kids. Lots of strife over fighting over those edge pieces. Moving forward with that, James, why don't you bring us home? What do you have for your object lesson this week?
- [81:03]
James Pierce
So I may smuggle in two in the guise of Juan here, but I had a little more time.
- [81:08]
Scott R. Anderson
A long rational security tradition.
- [81:09]
James Pierce
By all means, I had a little more time to read this weekend than I than I typically do in part because I flew to, from, from our area in D.C. to Las Vegas and back. And the reason I did that is that I was a Participant in a 120 mile race from Death Valley Baker, California to Las Vegas that is run depending on how fast your team is somewhere between 24 to I think the fastest teams do it in about about 16 hours. So I got a chance to run 11 miles, most of it uphill from about 1am to about 2:15 in the morning into a 10 to 15 mile an hour headwind. And what could be more amazing than that, somewhere between Death Valley. I think I was, I think I was in the Nevada side at that point. So, so that was a pretty special experience. I had done this once last year. It's something called the Baker to versus Vegas. Something that law enforcement, there are a whole bunch of law enforcement teams and prosecutor teams, including folks that come in from Australia and just across the world. So that's why I had some extra time. So that was. So part of it was that. But what I read while I was there, I haven't finished it yet, was I picked up what my older daughter is reading in high school, which is Mary Shelley's Frankenstein, which I read a long time ago in high school. But seeing her pick it up inspired me to open it. And I've read maybe the first 70 some odd pages and just the, the prose, the, the nestling of story within story. So it's a ship captain who, who rescues Victor Frankenstein, who is the, the Dr. Frankenstein who creates his monster and then later on his monster's telling him a story. So you get all this nestling and the, the way that it is, it is written, the, the, the, the imagery that it creates, it is. I am very much looking forward to finishing it. And so as I said, the opportunity to read a classic and to run in the middle of the night are I suppose my smuggled into like Frankenstein, like the monster running in the middle of the night.
- [83:15]
Quinta Jurecic
Right, as with the chase across the ice.
- [83:18]
Benjamin Wittes
Exactly. Best novel ever written by a minor.
- [83:21]
Scott R. Anderson
And of course, Mary Shelley, daughter of Mary Wollstonecraft, author of Vindication of the Rights of Women. So, you know, a whole course, social critique layered throughout. I remember reading that in high school and quite enjoying it as well. Well, that's a wonderful suggestion. I look forward to when my kids are reading words. Books that have more than 50 words at a time, so I can begin to dig into them or have a good excuse to revisit some old classics. But until then, that brings us to the end of this week's episode. Remember that Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfirmedia.org for our show page with links to past episodes for our written work and the written work, whether Lawfare contributors and for information on Lawfare's other phenomenal podcast series, including escalation podcasts about the war in Ukraine, available in your podcatcher now. In addition, be sure to follow Lawfare on Social Media Wherever you socialize your media, be sure to leave a rating or review wherever you might be listening. And sign up to become a material supporter of Lawfare on Patreon. For an ad free version of this podcast and other special benefits. For more information, visit lawfairmedia.org SL support and this week we are edited by special guest Ian Enright, also of Goat Rodeo. On behalf of my guests Quinta, James and Ben, I am Scott R. Anderson. We'll talk to you next week. Until then, goodbye.
- [84:39]
1-800-Flowers Ad
I don't know about you, but the number one thing I look forward to when I return from traveling is a good night's sleep in my own bed. That has never been more true than it is now that I have a Sleep Number Smart bed. I get so sore after traveling on planes, but after literally one night in my Sleep Number Smart bed, my body feels restored, rested and relaxed. The fact that my bed actually listens to my body and adjusts to my needs to keep me sleeping soundly all the way through the night is worth it alone. Not to mention, my husband and I never need to argue over firmness because we can each dial in our own Sleep Number Settings Setting why choose a Sleep Number Smart bed? So you can choose your ideal comfort on either side. And now for a limited time, Sleep Number Smart beds start at $849. Price is higher in Alaska and Hawaii. Exclusively at a Sleep Number store near you. C store or sleepnumber.com for details.