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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.
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I wish somebody taught me how to regulate my emotions. No one ever taught me that you're allowed to be sad. Heartbreak hits hard and yet managing romantic grief is so often left out of the conversation. On the season finale of Mind if We Talk, host and licensed therapist He Soo Jo is joined by dating coach and podcast host Sabrina Zohar. Together, they unpack her journey through heartbreak, the boundaries she's built, and the self worth she's reclaimed. The end of a relationship might break you in the moment, but looking for help with the grief can bring some fresh perspective and build you in the long run. Catch every single episode of Mind if We Talk, including this one. Wherever you get your podcasts, listen and follow today.
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I'm no tech genius, but I knew if I wanted my business to crush it, I needed a website. Now, thankfully, Bluehost made it easy. I customized, optimized and monetized everything exactly how I wanted with AI. In minutes my site was up. I couldn't believe it. The search engine tools even helped me get more site visitors. Whatever your passion project is, you can set it up with Bluehost with their 30 day money back guarantee. What have you got to lose? Head to bluehost.com to start now.
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It's the Lawfare Podcast. I'm Benjamin Whittis, editor in chief of Lawfare, with Lawfare senior editors Anna Bauer and Scott R. Andersen, Lawfare contributor and former Public Service Fellow James Pierce, current Lawfare Public Service Fellow Lauren Voss, and Atlantic Staff writer Quinta Jurassic. In the August 29 episode of the Trials of the Trump Administration, we talked about the Trump administration's unilateral cancellation of $4.9 billion in foreign aid grants, ongoing developments in the National Guard's presence in DC, litigation over the purported firing of Lisa Cook as a Fed governor, and so much more. It is Friday 29th August 2025. It is 4pm and you are watching Lawfare live the trials and tribulations of the Trump administration. I'm Benjamin Wittis, Editor in Chief of lawfare, and I am here with a an unusually loud, large not that loud, but large crowd of Lawfare contributors. We've got lawfare senior Editors Scott R. Anderson and Anna Bauer. Hello Scott. Hello Anna. What Room in your palatial mansion. Are you joined? That looks like the door room.
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B
This is the door room.
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A
All right. Former Lawfare public service fellow James Pierce. Hello, James.
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D
Hey, Ben.
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A
Joining us from the Cathedral Studio and from the Ansel Adams Studio, it's her triumphant return. Atlantic staff writer. I don't know what your title is. Yep. Quinta Jurassic. Welcome back to the fam, Quinta. Hello.
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E
Yes, I'm now an Atlantic staff writer. Everything is totally different. All my takes are totally different.
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A
Right.
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E
To wait and see.
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A
And you have to call Jeffrey Goldberg and ask permission to say anything. It's going to take forever to get an answer from you.
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E
We talk regularly over signal.
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A
Right, of course. And joining us, we're going to have to learn what room she is in for the first time, our newest public service fellow, Lauren Voss. Lauren, first of all, what, what room are you in?
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F
I would, I would call this the Lake room. What you cannot tell is there is a beautiful view of a lake out this window behind me, but I swear it's there.
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A
I think that's right. Whenever there is a beautiful view of a lake, the proper thing to do is to cover it up and make people wonder if it's really there. Lauren, tell us a little bit about yourself. Who are you? And as, as Admiral Stockdale would say, what are you doing here?
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F
Oh yeah, still trying to figure out that last part. But like everyone else here, you know, national security attorney. Up until recently I was at the White House. I was director for Defense Policy and Strategy at the National Security Council. Previously a senior advisor for Department of Defense. And I'm an Air Force veteran, really looking to, to be part of the conversation that's going on on these issues today. So happy to be here at Lawfare.
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A
And critically for present purposes, Lauren forgets more in a week about domestic deployment of the military than most of us ever know at all. Except maybe Chris Mirasola. All right, a couple of important announcements. This fall marks 15 years of lawfare. And we are celebrating the only way any self respecting organization in Washington would would celebrate by gathering our community of readers, listeners and contributors for an in person celebration in Washington D.C. and you are not yet signed up to come, at least most of you. So fix that. Get your tickets today at lawfare media.org/15years. Don't think about it too much, Just do it. It's on September 19th. It's going to be lit as the kids say. We're really excited about it and the only thing that's missing from it other than Taylor Swift. And Travis Kelsey is you. But they're not going to come if you don't come. So sign up now. All right, let's get started. It's been a big week and we've got a lot going on. But we're going to start with the thing that I know you guys are all super excited about, which is the Appointments Clause issues, because I woke up this morning and a little bird was beating in my ears saying they want to hear about the Appointments Clause stuff. And here's the thing, we're not actually going to talk about the Appointments Clause because this is all going to turn on something other than the Appointments Clause. But it is notionally an Appointments Clause issue. Can Donald Trump remove a Fed governor for cause for mortgage fraud when there is only the barest allegation of mortgage fraud? So, James, set up the situation for us. What is going on with Lisa Cook, Donald Trump and the Fed? We've had a lawsuit, we've had a firing, we've had a lawsuit, we've had, we had a hearing this morning, which we're going to get to in a minute. But, but set it up for us. Is this an Appointments Clause issue or is this just a who gets to decide what the heck for cause means?
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D
Yeah, so a bunch of questions packed in there and I'll answer one and then the sort of the end of it and then circle back to provide the context. I don't think the way this is currently teed up that this is a constitutional claim like this is a constitutional issue. It is not an article to power of the president to remove members from independent boards like the Fed. I'll provide a little bit more. And certainly that's kind of in the air or in the, in the ether or ether. Ether. I've heard both. But at its core it is a, it is a four cause question. But let's, let's walk back and just kind of put this in the, in the context that I think will be useful. So everyone's on the same page. In middle of this month, the head of the, I think it's the Fair Housing Finance Agency, William Pulte, issued a referral letter that he sent over, I believe to the Justice Department, maybe also the White House, basically saying that Federal Reserve member Lisa Cook, who had been put on the Federal Reserve under the Biden administration, had engaged in what appeared to be mortgage fraud by identifying in close proximity at some point in 2021 to properties as first as her. Gosh, I'm blanking on it. But where she's going to live her primary residence in order to get or at least the claim would be in order to get a lower interest rate. That becomes public on August 20th. And shortly thereafter, the President Trump sends out a tweet saying she's, she's got to, to resign, she's engaged in mortgage fraud. That is, you know, not, not a basis or somebody who's, who has no integrity and can't serve on the, on the Fed. Then we see at the beginning of this week, on Monday, an actual removal of Cook. There's a letter that again makes reference to the alleged mortgage fraud and says that this is done not again, as I mentioned at the top, under the president's Article 2 power. And we should say, as any listener here will know and many folks who've been following this space, this administration has not been shy about using its article to power to remove folks throughout the government. I am one of those. But in this case said that Cook had violated the the for cause removal, that there was cause based on the mortgage fraud just to kind of move forward. Cook then filed a suit on Thursday. So I guess that's all of yesterday. And Anna will talk about the temporary restraining order motion that Cook filed and that Judge Cobb heard this morning in D.C. but to kind of back up and sort of focus on what I think is going to be the central question here and that you alluded to, Ben, it's really what does for cause mean? In the lawsuit that Cook filed, she essentially argues, or the complaint essentially argues, that what for cause should mean is a standard that is used in a lot of different agencies that have for cause protections, including, for example, the Merit Systems Protections Board and the National Labor Relations Board. The cases that form the basis of the Wilcox and Harris challenges that we've talked about and that are that are relevant, those four cause protections actually will say that it applies to malfeasance, neglect of duty or inefficiency in office. And so there's it's pretty clear in those instances that what those four cause protections do is target one's actual conduct while while in office. The defense statutes, just what we might call cannibalism.
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A
I mean, if like if you're, if you're a Fed chair or a Fed Board of Governors or an FCC chairman or something, and your conduct in office is, so to speak, unimpeachable, but you're found to have been eating children at home is under that standard, is that you're not that's not grounds for removal.
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D
Well, shocking as it may seem, that is not A case that has yet been been tested. But, yeah, I mean, it's. It's a good question insofar as. Although that language focuses. Well, the language is set up as whatever, you know, inefficiency, neglect of duty, and malfeasance in office. There's a little bit of a statutory debate. And for those who really want to go in the weeds, there's a question about whether the series modifier or the last antecedent canon would apply. In other words, whether that in office that is tacked at the end, usually to malfeasance applies kind of to each of those things in order. I don't know the answer to the cannibalism question, but it would be quite surprising if there were not a basis to, you know, and even more broadly, you could. You could certainly say if there are, you know, a criminal violation that occurs at the same time that someone is serving in office. Right. I mean, I think one of the things that makes the Cook case problematic is that these allegations are from 2021, before she actually went through the process of being vetted through the Senate advice and consent process. So, you know, that's one of what will be a number of open questions. But here with the for cause as opposed to the identified kind of bases, I suspect what the government will and has argued and Anna can speak to this is a. That it's a much broader standard and one for which the President has a good deal more discretion. And I believe in the Supreme Court's decision in Collins vs Yellen from not so long ago, the Court basically said, without defining what for cause means, I think it drew a distinction between that inefficiency, malfeasance and neglect in office standard and for cause. And said there's. It is broader, probably could capture cannibalism, for example, but how broad it is, where you go to look for it for that standard, you draw it from employment case law. I don't believe the Supreme Court has said a whole lot about it. So that's one kind of bucket of questions. And the other, which I think you alluded to, is, is there also a challenge for Cook here, just at a process or procedural level? Right. It's not clear, but it appears from the reporting, and maybe this came out more in the hearing that Anna can speak to, that there was any kind of process for, you know, Cook is informed we're considering removing you for cause. And then here are the allegations, the cause that we think is the basis for your removal. What say you to that? And she would have an opportunity to kind of go back and forth in a hearing. So that's another area of uncertainty and not one that the statute speaks to. There is a very old or like 120-year-old case, shirtle in the Supreme Court that seems to suggest, yes, there should be a hearing, but precisely what form that would take before whom. And again, the sort of the really $64,000 question, what the specific standard would be are all things that actually make this, I think, a more challenging case than what might first appear? Last thing, I'll say, well, go ahead.
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A
Sorry, go ahead. I'll wait.
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D
Yeah, just the last thing. Because on framing, right. I want to just circle back to the Wilcox and Harris case for those who have had that in their minds. Because in that case, just a quick refresher, that's as mentioned, the NLRB and MSPB removal cases where on the emergency docket, the Supreme Court went out of its way to say, you know, some of the parties here, the challengers, the removed individuals have said, if you find that they are removable, that's going to, you know, fatally or potentially fatally undermine Fed independence. And the court said in this single sentence, the Fed is a uniquely structured quasi private entity that is has a distinct historical tradition in the nature of the first and second Banks of the United States that because of this whole for cause thing and this whole question of Fed independence doesn't really seem like it's teed up, at least as a formal matter, maybe informally, insofar as how loose a standard cause is, but it's not formally teed up as a constitutional consideration or constitutional claim.
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A
All right, so before we go to today's hearing, I want to express a little bit of perplexity at the fact that given how many statutes limit removal to for cause, or sometimes stated as for good cause, as in the old independent counsel statute, how on earth could this never have been litigated in a fashion that gave rise to some kind of precedent that we could refer to either as to what the substance of for cause means? Usually when people write the same phrase into statute, it's because it has known meaning. And so you're incorporating a certain amount of known meaning into it. But then also that what procedurally it implies, does that mean if the president decides that the federal housing, whatever guy who says you have two mortgages that you've made inconsistent representation on five years ago, that counts as good cause, that's unreviewable, or how is there no known answer to these questions?
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D
So I think the short answer is because this frankly, hasn't come up because until this administration with one, as I understand it, fairly minor historical counterexample presidents have not been removing people under these cause for cause or inefficiency neglect, malfeasance statutes. Right. I think President Taft removed two members in a single incident from the well known Board of General Appraisers back in the early 20th century. Other than that though, while there has certainly been a lot of litigation about whether Congress can put these for cause protections in place when litigating the constitutional.
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A
Question, there is not actually executor Myers and Morrison v. Olsen.
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D
Exactly. And then continuing through to cases like say the law Colin C. Yellen that I just mentioned, surely the Wilcox and Harris cases that we'll see. Well, Harris and Wilcox is sort of like the first version now where you actually are involving removed officers. All of those others, the older ones like Humphreys and Myers, the more recent ones like Sayla and Collins v. Allen are challenges brought by regulated parties, just challenging as a constitutional matter whether Congress can put this protection in place. It is not a question brought by a removed officer saying, hey, you didn't meet the standard. And so that's why we just don't have the kind of developed body of case law or thinking that you might.
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A
Think, well we're gonna develop it now. So Lisa Cook brought a suit. James, tell us about the suit. And then Anna, there was a hearing this morning which you were on the other side of that door attending. Tell us about the hearing.
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D
Do you want me to start with suit?
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A
Yeah, set us up with the suit itself. What is she.
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D
I'll be brief because it really I think just conveys a lot of what we've already discussed, which is to lay out the factual pieces we've talked about and some of the Humphreys and the kinds of it makes the claim that the cost standard should be that inefficiency malfeasance and neglect standard. It talks about the importance of fed independence and then makes a series of claims, some under the federal. I think there are two under the Federal Reserve act saying you didn't have the claim cause some that say I didn't get the process to which I'm entitled and then a kind of a general, a broader kind of equity claim. So pretty much what you would expect based on kind of what we have already discussed.
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B
All right, the hearing. You want me to go there?
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A
Yeah. So who, who, who are we in front of? You know what?
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B
Yeah. So this hearing is before Judge G A Cobb, who is in of the District of Columbia and this was a temporary restraining order. So a very preliminary step in all of this in which Lisa Cook is effectively just seeking to, you know, still have access to her office, to still, you know, stay on temporarily as a member of the Board of Governors of the Federal Reserve. And, you know, we get into this hearing, it's a two hour long hearing for all the reasons that James just discussed. It's very clear that Judge Cobb is, you know, struggling, I think, to figure out what to do here because there are so many unresolved questions related to this. And on the one hand, for all the reasons that James articulated with respect to Cook's arguments about, you know, the, the uniqueness of the Federal Reserve, the fact that, you know, it seems like cause has to have some meaning, right, on the one hand. But then on the other hand, you have the government that in their response that they just filed this morning, like quite literally 30 minutes before we went into the hear, so close to the hearing that in fact, Abby Lowell, who is representing Lisa Cook here, said that he barely had time to, you know, even skim through the government's filing. But in their, in their brief, you know, they're making the argument that cause, you know, it's kind of just basically as long as the President can state some kind of facially acceptable reason that doesn't have to do with some basic policy disagreement, then courts can look no further than that. And in fact, at one point, Yaakov Roth, who was representing doj, and then also in their brief, they kind of allude to this idea that actually we probably could challenge the constitutionality of this statute and the four plot for cause provision, we probably could just say that the President can remove at will under his Article 2 authority. But out of like, deference to the Supreme Court's statement that it made that James mentioned with respect to kind of maybe the Fed is unique, we're not doing that right now. But that means that this for cause interpretation has to be so capacious that there is basically, it's basically not subject to judicial review at all. And of course, Abby Lowell attacks this as saying, like, you know, that is so expansive as to be meaningless. It's kind of an inrun around the very idea that there are any restrictions at all. And Judge Cobb, meanwhile, had a lot of good questions about some of the arguments that are being made with respect to that. But also, you know, the pretext of it all, because it seems very clear to quite literally everyone that really what is going on here is that the reasons articulated in Trump's letter that he posted to social media. While those are the stated reasons related to these alleged contradictory statements that were made on a mortgage agreement, it really seems like everything is pointing to the fact that Trump really is just mad that the Fed has not agreed to lower interest rates. And he wants someone who has been voting with Powell on the interest rates.
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F
Issue.
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B
To to be gone, and he wants to kind of get control of the board. And so Judge Cobb, you know, is like, well, how do I even begin to think about pretext in this, in this respect? Because that requires looking to the President's motivations. That requires kind of, you know, doing things that courts, and especially this Supreme Court has been so reluctant to do, which is, you know, peek behind the President's stated reasons and look to his motivations. And so she's very clearly struggling with that. There's also a lot of unfavorable case law related to things like irreparable harm. And then also on the procedural aspect of this case, which relates to the question of opportunity to be heard notice, the government is arguing on the one hand that, oh, well, there were social media posts and that's sufficient notice. And then she had an opportunity to be heard, because after those social media posts about these allegations, she never made any effort to communicate with the President to explain her side of this story. She had that opportunity to do that and she didn't. And then, you know, she had the opportunity in these briefings to explain things away, and yet she didn't. Obviously, though, when you're raising an opportunity to be heard due process claim, you're saying you deserve that opportunity to be heard, you're not then going to, in your briefings try to explain everything away, because that seems to kind of moot part of your point. I think that maybe that's one of the reasons why Abby Lowell and Cook's team has kind of been reluctant to make turn this into an actual innocence factual inquiry. And then there's also, of course, the criminal risk or risk of criminal liability aspect of it all as to why you would maybe not want to turn this into a factual question of, you know, what exactly was going on with these mortgage agreements. But regardless, it just is a bit of a mess, Ben, because Judge Cobb is like, I don't like, how do I begin to look at those issues? What would a hearing even look like? Is it just talking to the President? Is it an actual, like, you know, do you have to have an independent kind of judicial oversight of some kind of hearing? All of this is just to say that it's, it's a mess. There's so many unresolved questions. She's clearly struggling with what do. And we left this hearing with, with really no real sense of what exactly she was going to do.
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A
How did she leave it?
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B
So, so that's how she left it. Again, like I said, it was very late before the hearing that the government filed its response in opposition. Abby Lowell said that he would like to file a reply. She gave him until Tuesday to file that reply. And everyone, you know, whether it's do. Whether it is Abby Lowell, everyone seemed to agree that even though there is a rush here, there's not a this needs to be done overnight rush. The reason being that the next meeting of the Board of Governors is not until mid September. Also, if there's actually to be a replacement of Cook, that would take some time because you'd have to nominate someone, you'd have to senate confirmation process. So even though Cook's team is very, very much wanting a swift resolution to the current uncertainty around her position, everyone seemed to agree that at least until Tuesday when that reply brief can be filed, there's not a huge rush. And so that would be the earliest that we would get a decision.
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A
So she is technically not in office between now and Tuesday. Right. She is asking for a TRO against an action or she's been fired. She says please put in a tro. But this current state of play is that she is not in.
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B
Well, it depends on who you ask. And it's. I think that it's genuinely unclear if she is in office or not. Because, I mean, there's been some. I just saw before we joined the live, that Bill Pulte, however you say his name mentioned that apparently the Federal Reserve Board of Governors is still allowing her access to her office. They are named, the Board of Governors and Powell are actually named as defendants in the suit. But instead of filing a reply in opposition, as you maybe typically would if you're a named defendant, the what the Board of Governors instead did was say that they're not taking a position and that they will do whatever the court requires. So it's, it's in limbo right now because it, she's, they're saying, well, we'll just kind of do whatever the court wants us to do. So it's really not clear. Ben.
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A
Gotcha. All right, let us turn from removing senior officials of the Fed to not spending government money. Scott, There has been action on the impoundment slash rescission front. We have a Supreme Court application for a Stay from the government in the AIDS Vaccine Coalition case. And then we have a term that a lot of people didn't know until today or yesterday, a pocket rescission request from the government. What the heck is going on here?
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G
Yeah, this is a rare case. This has been the tip of the spear for these impoundments questions. This particular case, which is AIDS Vaccine Advocacy Coalition, which is joined with a Global Health Council, two cases both before Judge Ali, before the D.C. district Court. We have actually seen major action in this case in the last five days at the Supreme Court, at the appellate courts, both en banc and at the panel level and at the District Court. So it's kind of like, you know, the grand slam of judicial action. To some extent. The action just, I think it's useful to go step by step. So let's start at where we were on Monday, as of Monday in this particular matter, the D.C. circuit, a panel of the D.C. circuit about two weeks ago had issued an opinion that said, essentially, look, all these claims by these plaintiffs who are all intended recipients of foreign assistance funds can't actually come to this court because there is an exclusive remedy, statutory remedy. Congress has laid out in the Impoundment Control act where the Impoundment Control act empowers the Comptroller General to sue over what it believes or he believes is a impoundment. And they said that is an exclusive remedy. There's no ability for private individuals to sue over statutory violations, which this is. That rejected the propositions as a constitutional violation and said the APA is not available because the ICA establishes exclusive statutory remedies for the. But it said immediately after it issued that we're going to hold our mandate, meaning that the basically we're going to hold the results of our decision for up to seven days after the resolution of a timely petition for a hearing or petition for a hearing on board. Bonk. Something we've seen in a couple of the cases here, particularly on air end issues where there's clearly disagreement with potential en banc court. So we saw the same thing happen as well in the NTVV vote, the CFPB case that came down about, I think the week before last call, correctly. So what happened then is that the D.C. circuit said, hey, after they got an initial motion for a stay for the D.C. circuit en banc to make clear, hey, the preliminary junction is still in place. The D.C. circuit en banc said, yeah, the preliminary junction is still in place. They've held the mandate, so nothing should be happening at the district court level while we consider this petition for rehearing the plaintiffs issued. And we waited for a week or so for something to happen. Then on Tuesday, the government went to the supreme Court and said, the D.C. circuit's taking too long on this. We want to stay the preliminary injunction. We think the panel decision was obviously correct and essentially, as I try to read it, as I read it, try to do a little bit of an end run of the en banc DC Circuit basically using the ability to challenge the maintained preliminary injunction, the fact that it hasn't been stayed, that the mandate had been stayed by the preliminary injunction to say no, in fact, the panel decision was correct. The impoundment control act is the exclusive remedy available to the plaintiffs. And so there's no basis for having a preliminary injunction. And this is kind of important at this point for two reasons. One I think is real and one that I think is kind of fake. The real one is that the impoundment, the preliminary injunction said, essentially, look, you, government need to be ready to provide and pay out all the funds appropriated, or obligated, I should say, is the term of art, all the funds appropriated for these foreign assistance purposes by the 2024 Appropriations Act. Therefore, that means by the government's own timeline that offered a litigation, it needs to start taking steps to obligate them, doing all the internal bureaucratic steps to obligate them by August 15th. So in theory, it has been spending the last two weeks internally at the state Department doing all the things it's going to need to do to get these, you know, several billions of dollars obligated to foreign assistance partners by September 30th if it ends up losing this litigation where the administration is saying we don't have to obligate these funds after all. That was again, a proposal by the government in terms of timeline and sequencing. And the preliminary injunction was what was enforcing that obligation to continue to obligate those funds to go through that process and to eventually pay them out by September 30th. Variant contrary ruling, the judge said, odds are you are going to lose on this by my assessment standards.
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A
Remind us why September 30th is an important date.
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G
Thank you. That is the date these funds expire. They were appropriated for a fixed period of some and the vast majority of the funds, I think all the ones in condensation at this point are expected to expire on that date. That feeds into the pocket rescission idea because what happens if you get to that date and Congress hasn't actually spent the money we'll get Back to that in just a second with the last thing that happened just today, Thursday this week comes around while the Supreme Court is still considering I forgot the second basis that they say the spring this is the Trump administration going Supreme Court. They say we actually want to make a rescissions motion to Congress, but we say we can't do it while we have this preliminary injunction in place. We actually would go for a rescission. That a I think is a little bit implausible because the preliminary junction doesn't say anything about saying you can't make a rescissions request. Certainly you can't make the request. Maybe there's arguably you'd have to it may pose an issue if they actually ended up not wanting to spend the money because the rescission was accepted by Congress. But you're not there yet. There's nothing that says that bars a request. And in fact, Congress made a similar request about foreign assistance funds, which Congress acted on just a couple of months ago. So I think that's a little bit stretching it. But what I think is important here is that they say they want to do that now. Well, now we're within 45 days, which is the period that the Impoundment Control act gives for Congress to consider that rescission. There's less than 45 days before September 30th when all these funds expire. That creates the circumstances for what is called a pocket rescission, which is the proposition that Mark Poletta and Russ Vought have put forward multiple times, both in their private lives and in government. That under the Impoundment Control act, if the government makes a rescissions request within 45 days of the expiration of funds, meaning within that Impoundment control Act window, 45 days for consideration, that rescissions request, and Congress doesn't act on it, the executive branch is not obligated to spend those funds. That is a view that has been rejected by the Government Accountability Office, rejected by most people who've looked at this issue. But it is a live view that they've been very actively advocating and clearly is in play and something the Trump administration now is acting on. Regardless what we ended up seeing happening, the Supreme Court hasn't moved on that motion yet. Instead, on Thursday yesterday, the D.C. circuit actually came down with the weirdest outcome I have ever seen come from an appellate court where the en banc said, we are rejecting your motion for rehearing. But the reason we're doing that is, by the way, the panel appears to have completely reconsidered the way they read this and have amend issued an amended opinion. And usually, sometimes you'll see an amended opinions for like, usually relatively small, like factual misrepresentations or errors or stylistic things. This fundamentally changes what the panel opinion actually held. They changed it to say the panel opinion originally said the Impoundment Control act completely precludes all statutory remedies other than the Impoundment Control act for appropriations violations. Now the revised panel opinion, which appears to have been reached, I'm guessing in some sort of negotiation with the other justices considering this matter en banc says instead, no, it just precludes the Impoundment Control act violations. If there are violations of other statutes alleged like the 2024 Appropriations act, the plaintiffs can go ahead and sue on the basis of that. But we're reading the preliminary injunction and the action the district court has taken so far is premised entirely on the Impoundment Control act. And there's no basis for that here. We know that the court thinks that there might be an alternative basis for pursuing these claims under the 2024 Appropriations act because Judge Garcia, joined by other justices in the en banc court, said as much. An opinion that came out with the denial of her hearing en banc. He said, basically, look, there's a. There's a potentially live issue here which at least one other judge dissented from the denial of hearing banc about whether they should be able to bring constitutional claims. And that's a ripe issue that maybe we should consider in another matter. But here, reaching that is just going to complicate the ability of the district court to resolve these claims the way that they amended their opinion leaves the door open for the same plaintiffs to go back and make the same arguments under the 2024 Appropriations act and the district court to address it on that basis. And it should do so.
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A
But it would have to be done really fast.
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D
Really, really, really fast.
- [40:23]
G
Like for poor Judge Ali in the district Court who now has to deal.
- [40:26]
A
With in 31 days.
- [40:29]
G
Exactly, exactly. It is just a wild sequence.
- [40:32]
A
If you were Mr. Pauletta and Mr. Vote and this opinion came down yesterday, what would you do today?
- [40:43]
G
They did what they said they wanted to do, what they said, the preliminary. Because it's worth noting, the D.C. circuit still vacated the preliminary injunction, even its revised opinion, because it said it relied entirely on the Impoundment Control Act. I can be honest with you. I read it again today. It does not very clearly says the 2024 Appropriations act, but whatever, it's very convenient fiction for the D.C. circuit, they vacated it and then they immediately handed down the mandate. So the preliminary injunction disappeared as of last night, or at least the D.C. circuit has ordered the district court to do away with it and district court in theory should do so, and it hasn't done so yet. Now this morning the government comes and says, hey, we're issuing a rescissions request. We're doing exactly what we said we wanted to do. And by the way, there's not 45 days left to do this, so this is totally going to be end up being a pocket resistance. They don't say that, but it's clearly implied. So they now have formally made this request to Congress for rescissions. They have less than 45 days to do it in. They blame the preliminary injunction for not having done it sooner. But again, I don't think that's particularly plausible. Also because they could have pursued an appeal months earlier and chose not to. Instead, we're now in the situation where the district Court has to consider, okay, the preliminary injunction is temporarily gone, or at least I have a mandate to get rid of it. But the same D.C. circuit en banc pretty much told me outright there might be other statutory bases I need to, I need to judge, such as the 2024 Appropriations act, which by the way was the basis for the original action. I issued at least one of them even though they don't appear to acknowledge that. And so he called a snap telephone hearing today at 2:30. I listened into about the last half of it because I didn't get the notice until I was already well underway. And it said essentially at least one of the private parties is going to issue a Trojan basically to say, or trying to motion for a tro, basically to say, hey, government, you need to keep working towards obligating these funds so that you don't have an excuse that somehow administratively you didn't have enough time to do it by September 30th. You're going to have to keep doing it. They said at least one party was going to get that in a day. Another party is going to get a similar motion in within a number of days. So I'm guessing maybe by Monday. Then we're going to get additional filings on September 4th. I don't know what exactly that is that the government was talking about. It sounds like a motion for summary judgment. The parties, I'm going to guess, are going to make a revised motion for a preliminary injunction based strictly on the 2024 Appropriations Act. And then Judge Ali is going to have to look at this and say, well, what based on the Appropriations act, not the Impoundment Control act, do I think the government is likely to lose on and that I need to enjoy him by September 30th. And then there has to be an appellate channel of this all going all the way up to the D.C. circuit again and potentially to the Supreme Court. This all has to happen by September 30th or this money is just going to wither on the vine. It's a really, really tall order, particularly for Judge Ali. For those who may not remember, he started becoming a federal judge in January. This is the very first matter he had, and it went to the Supreme Court twice now. Pretty expire, to say the least. An extraordinarily interesting guy with an extraordinarily interesting bad year. If you think you're having a bad year, you're not having as bad a year as this guy is. But it's a fascinating matter, and it is the absolute tip of the spear for what is widely seen as the most important congressional power of the Appropriations power. So we're going to have to wait to see what happens. The TRO may come tonight. Although notably, Judge Ali did say, hey, government parties, confer on this. Please just see if you can come to agreement that you'll continue to work towards being able to pay these funds out on September 30th without me having to issue a TRO. We'll see if that comes to fruition or not.
- [43:59]
A
Learned that from Judge Reyes, who did that the other day very successfully. I. There wasn't a ticking clock on that one. There is a ticking clock on this one. Paletta and Vote have a lot of incentive to stall and let the clock tick.
- [44:19]
G
I think that's probably right, but we'll. We'll see what comes out of it. He doesn't seem they're going to get a motion. The party seemed pretty clear on the TRO unless they have agreement. So he's gonna have to decide on something relatively short order today or tomorrow.
- [44:30]
A
All right. On a different subject, Scott R. Andersen, one of my favorite judges on the bench in D.C. judge Royce Lamberth has issued a ruling forbidding Carrie Lake from firing my former colleague, Micah Abramowitz, who is still, thanks to Judge Lois Lamberth, the head of Voice of America. And also seems like Carrie Lake may have to sit for a deposition and answer questions. What's going on in the VOA litigation?
- [45:10]
G
It's another one of these extraordinary sets of cases that is really the tip of the spear for one of the other big Questions coming out of this administration, which is the president's ability to dismantle federal agency. This is mostly centered around what I have often referred to as the Witikuswara litigation over Patsy Whitaker Swara, one of the lead plaintiffs in one of these bundle of lawsuits, actually five different lawsuits that are being adjudicated more or less together by Judge Lamberth or judge with some little divergences here and there. So we have two sort of big developments here. Let's take the Abramowicz. Abramowicz one first, where you have a summary judgment, substantially, there are certain issues are still left outstanding in favor of Mr. Abramowicz. This was a challenge to his removal as president, essentially arguing, look, the people who proclaimed to remove me as president didn't have the authority to do so. There's no quorum of the body that's supposed to be removed me as president, so there's nobody with the authority to do it. And Kari Lake, by the way, whose own status is very unclear because she claims to be the acting director of usagm, I think is her claimed title, but hasn't clearly. Isn't clearly eligible to be that in an acting capacity under existing statutes and has not been confirmed for that by the Senate, which is required for that sort of role. Regardless, there's all these structural questions about could you actually fire this person, the government.
- [46:23]
A
She also claims to be the senator from. Or the governor of Arizona. Right.
- [46:28]
G
Her team. Her term might have expired on that by this point.
- [46:32]
A
Her. Her claims are not exactly especially credible.
- [46:37]
G
Fair. Totally fair. So. So in this case, essentially the government said, hey, this is just an employment suit and this needs to go to the MSPB and other sort of specialized procedures. And notably that is what the D.C. circuit has held in most of these employment challenges cases. They say if it's really just a straight employment challenge, it has to go through those sort of conventional procedures. That means the district court doesn't have jurisdiction. Judge Lamberth doesn't have jurisdiction. It has to go through these administrative processes and then they can then appeal to different courts. The government actually rejected this in this case. Pardon me, the Judge Lamberth rejected this case on a, on a pretty persuasive case, I think. He essentially said, look, the Thunder Basin factors, which is the test that I've talked about in this podcast before, where the gov. That the court has laid out to.
- [47:23]
A
Say, well, he loves saying Whitaker Solara and he loves saying. Saying Thunder Basin.
- [47:27]
G
I do. It is my favorite case name to say it. And all this basically says, hey, There's a couple of factors we weigh as to whether a particular claim should be channeled through special special statutory channels or is actually such a collateral issue to what those channelers are supposed to address. It can be addressed separately by the APA in a district court as like a normal legal challenge or under other statutory authorities. And applying that in this case, he said, look, found foundationally what Mr. Abramowicz is challenging here is a constitutional violation. It's a structural constitutional challenge that the what the government is trying to do, they don't have the statutory or the constitutional authority to do it. And that that's really foundationally different from just an employment challenge. We'll see if that survives on appeal. It's certainly a way to distinguish it. But we have to remember also the D.C. circuit en banc in Wittake Oswara are the ones who said if it's a statutory violation, if you're it's a question as to whether they're meeting their statutory obligations. That can be a basis for adjoining employment action by a district court, even if a direct challenge just to the employment action has to go through the specialized procedures. That's not exactly what's happening here, but it is. I think it reflects a similar logic that I suspect Judge Lamberth is leaning into in particular in this context, along with the general distinction about apply you apply Thunder Basin and the Axon Hill application of that a more recent case by the Supreme Court. The second thing about Kerry Lake is the tip of the spear about this ongoing procedure we've talked about here over the last few weeks where Judge Lamberth is in the difficult position of having been told by the en banc D.C. circuit now, hey, the one part of your preliminary injunction which is still clearly alive, one prong has been said you lose jurisdiction because an employment issue. One prong is still being debated by the D.C. circuit. It's about canceling grant funds. And after the NIH APHA decision last week, it probably is not on good. It's probably going to face some trouble in that court, but we'll have to wait and see. The third prong is just is the VOA and USAGM meeting its statutory obligations? And it's a really, really hard question because they have some very specific statutory obligations, but other things are fairly broad. So he has been engaging in trying to pry information out of Carrie Lake and the VOA and USAGM team saying, how do you plan on how do you interpret and plan on meeting your statutory obligations to do this range of activities Congress has set out for you. And he has not been impressed by the information he's gotten back, which has now gone through, I think, three different rounds of him compelling them through motions to show cause about how it is they're actually complying with their obligations. Now it looks like it's getting to the point where he's actually going to call them to a stand or potentially Carrie Lake coming to set, I think before, before September 15th is the date that he laid out, saying, hey, you got to sit down and talk this through with me along with senior members of the team, because I have questions you've refused to answer on paper in response to my various inquiries. We'll see what happens going forward. This may be a basis for another appeal. This may be something they object to. We saw the administration when something similar happened in the context of the CFPB. Appeal it up to the D.C. circuit. The D.C. circuit actually ended up more or less saying, okay, you don't have to call these witnesses, but we're not going to let the administration do what it wants us to do moving forward. Who knows what exactly the remedy is going to be in this case. But it is, again, the real tip of the spear because this sort of inquiry is the is the what district court judges are going to be asked to do moving forward because now they're in the position of evaluating is the administration actually meeting its statutory obligations laid out by Congress, and how do we have to understand those and how much deference to give the to the executive branch on how they can meet those in terms of personnel levels, funding levels and actual activities. That's the heart of the question about breaking down an agency at this point is the statutory directives from Congress. And it's a really, really hard position for the Judge Lamberth to find himself in. You couldn't ask for a more experienced or credible judge to do that. I don't think. Remember, he is a Reagan appointee who's been extremely experienced, but it is going to be a difficult task, and it's not just for him, but for lots.
- [51:22]
A
Of other judges and who is famously tough on government lawyers. Roy Slamberth was, of course, the head of the Civil division in the U.S. attorney's office in D.C. before his protege John Bates, who is also now a colleague on that court. And he famously held multiple Interior Department and Bureau of Indian affairs officials, including, I believe, the Secretary of the Interior, in contempt over matters related to the Indian Trust Fund in the late 90s and early aughts. Kari Lake should be careful how she comports herself in front of Judge Lamberth Quinta. Let's talk about Justice Department politicization and its discontents. They say that the Justice Department or can, can get a grand jury to indict a ham sandwich, but it cannot apparently get a Justice Department employee indicted for throwing a sandwich.
- [52:44]
E
A salami sandwich.
- [52:45]
A
A salami sandwich. Well, this is why Saul Walkler said ham sandwich, because, you know, salami is a different matter. And egg salad is completely different. But you have been tracking for some time the propensity of grand juries not to indict the ham sandwiches that are put in front of them. And this has reached critical mass this week. And there have been some stories about this thing. So what is going on? What do we know about the numerous sandwiches that are going unindicted by grand juries in D.C. and elsewhere?
- [53:31]
E
Well, only one case involves an actual sandwich. And this, of course, is the case of Sean Charles Dunn, the sandwich guy, who through a Subway sandwich, again, reportedly salami. I spent a little while this morning trying to figure out what kind of bread and came up empty at a.
- [53:52]
A
I believe, I believe at Subway there's only two kinds of bread. There's.
- [53:57]
E
I have try not to set foot in a Subway.
- [54:00]
A
I mean, look, his taste in sandwiches is condemnable, but.
- [54:05]
E
But they may be good for throwing. So at any rate, so Mr. Dunn was charged with a felony for throwing this sandwich at a CBP officer. And then when he was arrested, saying, I did it, I threw the sandwich. And we learned yesterday that the Justice Department had been unsuccessful in getting a grand jury to indict him. And so instead they chose to charge him with a misdemeanor violation under the same statute, 18 USC 111, assaulting a federal officer, a misdemeanor, of course, not requiring a grand jury to approve the charges. This is only one of three cases so far where a grand jury has refused to indict during the D.C. federal law enforcement surge.
- [54:59]
A
And do we know that it's three or do we know of three? And it could be more.
- [55:04]
E
We know of three, but there are actually five refusals because there, there were three refusals in one single case. That is the case of Sydney Laurie Reed. This actually, this incident took place before the surge. But this is a woman who allegedly, according to the government, was protesting ICE arrest. I believe when agents tried to sort of move her out of the way, they pressed her up against a wall. She was kind of flailing. In the course of that, an FBI agent's hand was slightly scraped for this. She was also charged with A felony. And we learned, thanks to an order from the judge to disclose this information, that a grand jury, or possibly multiple grand juries, we don't know, declined three times to indict Ms. Reed on a felony charge. She too, was charged with a misdemeanor version of that same offense. And then there's a third case which is one of. I'm sorry, I'm pulling up his name right here. Alvin Summers, who allegedly, according to the government, drove his car onto the mall, was stopped by a park police officer in the course of sort of trying to get out of the grasp of the park police officer, scraped her hand or something along those lines. So that's the assault. And then tried to run away and was eventually grabbed by a member of the National Guard, Mr. Summers. The government also could not get an indictment on those charges. And in his case, instead of pursuing a misdemeanor version, they actually just dismissed the case. So again, those are three cases, five no true bills. Very, very impressive numbers. And I think in line kind of with what we saw in LA after the protests there, the anti ICE protests in June, there has been a lot of reporting from the LA Times, Bloomberg and the Guardian on the struggle of the U.S. attorney's office there to get indictments from grand juries there, seemingly because interim then, interim now, Acting U.S. attorney Bill Asale has been reportedly pushing prosecutors to put forward cases that really aren't up to snuff. I will also note that literally, as we were recording this, Bloomberg has a story saying that LA public defenders are now arguing that assailee is unlawfully in his position, thanks to the recent ruling about Acting U.S. attorney Elena Hoppa being unlawfully in her position. So there's an additional complication there.
- [58:01]
A
Right. The dominoes fall. So what do we know about how many cases in L A have been no true build. I've heard some rather large numbers.
- [58:16]
E
I don't know if we have a firm count, but there are a lot of cases that were initially charged as felonies and were then downgraded to misdemeanors. I would say around 10. And then there were a handful of cases that were charged as felonies and then dismissed by the government before things got any farther. I think probably also 10 or thereabouts. I don't know, don't.
- [58:46]
A
We don't. But we don't know if those were because grand juries balked or because prosecutors thought better of it.
- [58:55]
E
Exactly. And I think that's actually a really interesting distinction that we can draw between LA and DC So L. A, these no true bills are operating along the lines of what I would have expected. There were sort of vague reports about no true bills. They're hard to report because of laws around grand jury secret secrecy. And LA reporters had kind of an easier job because a Salee was reportedly screaming at prosecutors on speakerphone in a hallway by the grand jury room, saying, and I quote, the Justice Manual, end quote, and encouraging them to pursue cases again after a grand jury had declined. That certainly makes reporter's job easier.
- [59:36]
A
And what is the Justice Manual for this?
- [59:39]
E
Yeah, the Justice Manual is the internal sort of guidelines for prosecutors that indicate policy about how to.
- [59:45]
A
Yeah, guidelines, right. It's, it's what you are and aren't allowed to do under, under extant DOJ rules.
- [59:56]
E
Well, so, okay, so, so that's.
- [59:58]
A
Go ahead.
- [59:59]
E
That's the situation in L. A. There's, I think there is some sort of trying to figure things out through a glass, starkly. But in D.C. the interesting twist is that in two out of these three cases, a judge has actually, a magistrate judge has actually ordered that a no true bill be disclosed to defense counsel. That is not true. In the Sandwich Guy case. We don't know how it was that. The New York Times came to report that. But in the case of both Sidney Laurie Reed and Alvin Summers, the magistrate judge judges, Magistrate Judge Harvey and Upadaya ordered that defense counsel, that the government notify defense counsel of this, which is not something that I have ever come across before. There's a reason it wouldn't be allowed, but I certainly hadn't interacted with it. And I think that's an interesting twist.
- [60:53]
A
Yeah, so interesting. So this strikes me as a very important difference between the first Trump administration and the second Trump administration. Administration. In the first Trump administration, I know of exactly one case that they tried to bring and a grand jury balked, and that was the supposed false statement slash perjury case of, of, of Andy McCabe, the former acting director of the FBI and deputy director of the FBI. And that was an embarrassing thing for them. Here we're Talking about maybe 15 cases in the first seven, eight months of an administration, and they don't seem remotely embarrassed by it. What has the reaction of the Justice Department been to any or all, all of this?
- [61:58]
E
Well, Janine Pirro, who is The Senate confirmed U.S. attorney for D.C. and former Fox News host, said in a. Sorry, said in a press conference something along the lines of, well, you know, we're prosecutors and we try to convince a jury and sometimes it doesn't work out, which I think is is really underselling just how rare this is and what a black eye it is for the office. I should also note there is one additional case that the office dismissed without just a few days after it was filed, without even going through the rigmarole of getting a no true bill, and that's the case of Torres Riley, which was he was found to be carrying a gun illegally thanks to a previous felony conviction. The New York Times reported that the office moved to dismiss that out of concern that the search that had found the gun was basically so obviously unconstitutional that not only would it, you know, throw any prosecution into question, it was at risk of creating some seriously adverse precedent in the D.C. circuit if Reilly appealed it up. So that is just another sample of how things have been going in this office. I think the fact that the office charged Mr. Reilly rather than just letting him go and dropping the case and moving on is telling. There are some other incidents too, just in terms of defendants being held pretrial for a sort of extraordinarily long length of time. Time that suggest, I think, that people are overworked right now and perhaps not using the judgment that you would want a U.S. attorney's office to use and choosing which cases to charge.
- [64:01]
C
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- [64:28]
B
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- [66:03]
D
Ben, you're muted.
- [66:06]
A
Sorry about that. One last question and then we will let you go and move on There is a historic debate between prosecutors and defense bar types, with journalists tending to side with defense bar types, in which the prosecutors say, hey, the reason grand juries indict essentially 100% of the people we ask for indictments for is that we don't bring garbage cases to grand juries. And by the way, there's a huge difference between the standard for indictment, which is quite low probable cause, and the standard for conviction proof beyond a reasonable doubt. And so it's really pretty easy to get an indictment in any case. You are likely to win and believe you're going to win in good faith at trial. And so if you follow the standards of the Justice Manual, you're never going to have a no true bill. And that would be what the James Pierces of the world would say. And then you go to the Anna Bowers of the world, the defense bar types, and they'll say a grand jury will indict a ham sandwich. This is a meaningless check, kind of a check on on prosecutors in name only. And in fact, it doesn't really do anything. This set of incidents seems to me to be an important data point in that conversation, which is to say that it kind of suggests that in the world in which we used to live, where the prosecutors were, people like James Pierce, the grand jury is not that important to check because, you know, James isn't bringing grossly irresponsible cases. He's thinking about what they can prove at trial. He's were. And so he's going to get 100% of the indictments that he requests. In this world in which prosecutors are behaving potentially quite recklessly, and they're going after people for assaulting cops who were in fact assaulted by cops, it is actually a very meaningful check in exactly the way that the founders may have thought of it. And so I'm curious how this has Changed, if at all, your view of the institution of the grand jury.
- [68:44]
E
Well, I'm curious for James and Anna's thoughts. I don't want to speak for either of them. I do think I've caricatured them both. Yeah, exactly, exactly. There's something to both sides of that argument. I do think that what we are seeing is a degradation of trust between grand juries and prosecutors in the U.S. attorney's office. One big difference between LA and DC is that the Central District of California is really big and there are areas of it that are pretty red leaning. So Bill Asale in at least one instance seems to have gone to Santa Ana, which is a little more conservative, rather than trying to get an indictment in bluer areas of LA for one of these individuals who was caught up in these demonstrations. You don't have that option in dc. It's a small city, both geographically and in terms of population. Pretty much everybody has been affected by this. The federal surge is extremely unpopular, even among populations that live in areas of higher crime. And so I think what you are seeing is a loss of trust that not only is reflected in grand jury's refusals to indict in weak cases, but might also be polluting, so to speak, stronger cases as well. So somebody who scrapes an FBI agent's hand when they're being pushed up against a wall, you could argue whether or not that really, you know, meets the standards, whether it really happened. Right. This sandwich guy, I mean, based on a reading of the statute, I think there's a pretty good argument that, you know, he, he did as he said, he threw that sandwich. There's, there is a pretty good argument that it meets the standards for a felony. And that seems more like an instance of a grand jury just saying, like, we don't care, we don't like you and we don't care that he did this. And so if I were in the U.S. attorney's office, I would be worried that you start seeing this kind of behavior in even meritorious gun cases where grand juries just no longer trust you. And then you also have the problem of if any of these cases go to trial. Sidney Laurie Reed has requested a jury trial that, you know, you're then going to face a jury that doesn't like or trust you either, and that that could very well affect the verdict. So I think this will potentially have a very long tail.
- [71:17]
A
I agree with that. I think the, and the loss of faith among the magistrates and the judges is arguably even more important for lots of reasons that we've talked about Quinta. Thank you for joining us today. James and or Anna, do either of you have thoughts on, on, on this before we move on? Since I have shamelessly invoked your names as representatives of a class.
- [71:50]
D
Yeah, I have a quick. I can keep it, keep it quick, but I do think that grand juries in the whole ham sandwich anecdote are given a bad rap. As perhaps the only person on this group to have actually taken cases to grand juries. They, particularly in more complex cases, can be quite questioning, inquisitive. And particularly in dc, DC grand juries have a reputation. You know, you've got a non small number of lawyers and curious, engaged folks to put you through your paces as a. Which as a prosecutor you should be prepared to do. And if as a prosecutor you are complying with the Justice Manual policy that you don't take a, you don't seek an indictment, if you don't think you can prove the case beyond a reasonable doubt with admissible evidence, then you should bat a thousand percent. And so I do think this is quite a noteworthy development and one that is worth paying attention to. And I think it does signal a number of the things that Quinta highlighted. Things like a real skepticism of the government prosecutors and of the cases that they are bringing. Whether that's. Whether they're bringing those cases because they're not doing enough front end work, whether they're bringing those cases because they are being told by their superiors, you bring these cases regardless of, of your exercise of independent judgment. I don't know. It seems like that is certainly a factor. But yeah, I think this is an extremely significant development and not a good one.
- [73:26]
A
Anna, do you repent every disparaging thing you've ever said about a grand jury?
- [73:33]
B
No, I think that although I will, I do want to say that I think my per, my perception is that grand jury practice at the federal level and at the state level can be quite different. I think that a lot of my tendency to think that grand juries would indict a ham sandwich has to do with state practice before grand juries as opposed to the practice of federal prosecutors before grand juries. But look, Ben, I could talk all day about grand juries. They started as basically snitches back in the day when in England it was like in like within the like feudal territories, people kind of getting together to rat out their fellow townspeople to the king who like needed to, you know, figure out what was going on in this like vast expanse of land. So sometimes grand juries are a sword Sometimes they're a shield. It seems like the tide is turning in terms of being a bit of more of a, of a shield. But I also wonder how much of it, too, is that maybe more people are aware of the fact that they can decline to indict. And I will be very interested to see when it gets to, like, actual trials, how it may affect, you know, will there be an increase in acquittals as people learn about jury nullification? I don't know, but it is just a fascinating thing to watch as someone who is interested in grand jury practice.
- [75:28]
A
All right, quickly, Quinta Fair Sales, and we will see you soon. James we had a unceremonious end to the Justice Department's attempt to sue a court this week. Without dignifying it with too much explanation, what happened with the Justice Department's suit against the US District Court in Maryland?
- [76:02]
D
The judge who was sitting by designation in the Western District of Virginia, granted the motion filed on behalf of the district court, which included not only the court as an entity, every single judge on the District of the District of Maryland, and for good measure, the clerk's office. That case has been dismissed. The judge presiding over the case, Judge Thomas Cullen, found that the Department of Justice lacked standing to bring one of its claims to seek injunctive relief, but that in any event, all of the defendants were protected by both sovereign and judicial immunity. For the clerk's office, that judicial immunity was derivative on the immunity enjoyed by the judges themselves. And for good measure, there was no, in fact, there was no cause of action. There's no statute or constitutional or other mechanism by which the Justice Department could seek the relief it was asking, which as to remind folks briefly, was to try to stop a not even two full business day standing order that would give time for district court judges who were getting habeas petitions in the immigration context to stay any removal so that they could actually, you know, read the petition and find out what, what it was about. The the judge said there are ways to challenge this. You can, you know, appeal. You could go to the fourth Circuit Judicial Conference, but filing suit against the entire district court bench is not one of them and I think quite rightly dismissed the lawsuit.
- [77:43]
A
All right. Hopefully we will never have to talk about that stupid suit again, though we may have a 4th Circuit appeal in it. So stay tuned. Lauren Voss, let's talk about domestic deployments of U.S. troops, another subject that I was hoping we wouldn't have to talk about. For those who don't live in D.C. there is, there are National Guards Troops wandering around the city looking bored. Some of them are heavily armed. Some of them are wearing camouflage. Some of them are wearing both camouflage and neon neoprene vests. I guess they can't decide whether they want to be seen or not. It's very confusing. So, first of all, Lauren, give us a little bit of a briefing about the state of deployment of National Guard troops in L. A in D.C. and what, what, what, what has and hasn't happened so far?
- [78:57]
F
Yeah, so we think there's still about 250 National Guard troops in L. A. There hasn't been a public announcement to change that number, so we think there's still some out there. D.C. now has about 2200, which is a lot, but only about 900 of those are D.C. guard. The other like 1300 come from six other states. Right. So you actually have more coming from outside of D.C. starting Sunday, there was an announcement that they will be armed. So you have a number of forces out there either with their M17 pistols or their M4 rifles. These are service weapons. This is what they would typically carry. Only authorized for self protection in response to the threat of death or serious bodily harm. We still haven't gotten clarity on the legal authorities here in D.C. we talked about it here on this podcast two weeks ago. You know, what is the D.C. guards authority? Is it, you know, D.C. code 49103 or 102? Right. So is this suppression of riots or is this the other duties catch all clause? Still haven't gotten that at all. The assumption is that the other states are here under Title 32 502F. Right. But remember, all of these are just the mobilization authorities. The mission authority here is still unclear. So on DC though, what you're seeing is actually really interesting.
- [80:31]
A
Isn't the mission authority city beautification and cleaning up garbage?
- [80:36]
F
Well, right, so. So that actually raises the question, like what is.
- [80:39]
A
Because that's what the videos show them doing that and, you know, helping some drunk people into Ubers and standing around, presumably standing around isn't the mission. Right?
- [80:53]
F
Yeah. So the, the phrase that they're using is actually community restoration and beautification. Right. So the joint task force, it has the phrase beautification in it too. And so there is this like question of what, what is that mission? And what is the mission authority of? These are the types of things they're doing. Right. And I think that just raises the transparency question. Right? What, why do you have armed troops in the Capitol? Under what legal authority are they doing? So and so until we know that it's really unclear how long they're going to be here because it's. You're not clear on what they're trying to accomplish. Right. And so, you know, when we had these, these deployments of The Guard in 2020, the BLM protests, it took about eight days before our legal justification came out. Right. And that was through an ex post by DOJ to a letter to, to the mayor. You know, they've been deployed now since August 11th, and we still haven't gotten that clarification yet. So it's, it's somewhat unclear, you know, what's happening in D.C. the other deployment that I wanted to mention that's going on right now and hasn't gotten as much news is a series of National Guard deployments to support ICE. It's about 1700 National Guard members across 19 states. So pretty sizable. The DHS Assistant Secretary McLaughlin said back in June to NPR that they'd actually requested 20,000 National Guard forces to support ICE and that it was to carry out the mandate to arrest and deport criminal legal aliens. We know there's about 1700 deploying now. The border czar has said they will not be doing arrests. They'll be doing, you know, the support mission. So transportation, intel, building infrastructure, that type of stuff. You know, we've had National Guard immigration deployments before, but usually like at the border doing border security type work. And this is, this is across the country. Right. This is, this is in like Ohio. Right. It's the, it's the heartland where you have the National Guard deploying. Here we know this is title 32, 502F, once again, you know, unclear mission authority, potentially chapter 15 of title 10, but once again, hasn't been completely clear. And so that's all the deployments going on now. But then we have this great new executive order that came out that talks about future, future deployments.
- [83:29]
A
Yeah. So help me out with that, because this is, as best as I can understand it, an executive order that expands the Pentagon's role in domestic law enforcement. Frankly, I had thought that missions were already pretty snuggly with the border of what the Posse Comitata statute will tolerate. So how do you expand the Pentagon's role without bumping up against what you know is a criminal statute?
- [84:08]
F
Yeah. So, I mean, the first takeaway, I'll say, is like this executive order says a lot of things, but it's not actually providing like new legal authority for domestic deployment to anyone. Right. It's just, it's trying to use things that are already there. But it is setting the expectation that this administration is going to do a lot more domestic deployments. Right. So you have a section that says the Secretary of Defense is going to create a specialized unit within the D.C. guard dedicated to ensuring public safety and order in D.C. right. And those. And those members, as appropriate, will be deputized to enforce federal law. We have already seen, you know, D.C. national Guard be deputized before. I think some of them are deputized now. They were deputized in 2020 by MPD and then they're usually deputized by the US Marshals during like presidential inauguration. So we have seen that before. But this is, this is, it says by the attorney general. So U.S. marshals, but also Secretary of Interior. So this could be Park Police deputization or Secretary of Homeland Security. So like CBP ice, like this kind of gives you the whole gamut of why they could be deputized. There's also a second section on the military that says the SEC Def has to ensure that every state army and Air National Guards are ready to assist law enforcement in response to civil disturbances. I would say that that's something that the Secretary of Defense under various Secretaries of Defense have been saying for a long time. Until you fund that, until you resource that it's really hard to actually train equip those forces to do so. The second part underneath that is that each state has to designate an appropriate number of National Guard members to be available. Rapid mobilization. This is actually something that a lot of National Guards already have is some type of like quick reaction force. Usually, you know, natural disasters. There's seabourney ones, right. For chemical, biological, nuclear weapon type stuff. So it's not really clear what that'll look like or if states will just like name the people they already have. Right. But then the last thing that it does, and this is what's got most of the attention in the news, is that the SEC Def is supposed to create a standing National Guard quick Reaction Force, right. Ready for nationwide deployment. And that raises a lot of questions because one, it doesn't say what the authority for this would be. Right. The D.C. national Guard. One, they say for activation under Title 32, this nationwide cure. Unclear. Right. It also talks about, you know, quelling civil disturbances, but then uses the public safety and order phrase, which we've seen be used in D.C. to mean a very nebulous amount of things, including raking leaves. Right. Like it can be a variety of things. So really unclear what this nationwide QRF would actually do. But remember if it was mobilized under Title 32, you would have to. Which means state command and control, Right. Federal mission, but State command and control, the federal government would need the receiving state to approve the deployment. And based on the conversations the administration's having now, the places they're looking, Chicago, Baltimore, those states do not seem to be excited about getting outside military forces. So it seems like the title 32 bit wouldn't really work for those. But to your, to your Posse Comitatus, when you Deploy in Title 32, Posse Comitatus doesn't apply. Right. So there's always interest in trying to do more deployments under Title 32. So it's kind of unclear what the legal authority would be here. I mean, you could use what you used in LA, right? 10 USC 12, 406. But the facts don't really fit in the cities we're looking at. Right. There's no invasion or threat of invasion. There's not really a rebellion or danger of rebellion or. And you can't really say the President's unable with regular forces to execute the laws of the United States. Like, we haven't really gotten there. But if you remember, the presidential memorandum for LA isn't actually on la. Right. It never actually puts a geographic bound on it and in fact just states there's violence and disorder that have threatened federal law by ice. Right. And so that argument could be used in other places that could potentially be the mobilizing authority that they use. But then to your earlier point, you know, Posse Comitatis does apply, right. Those would be support missions. But that's what we're seeing happen in the news on the Trump case right now, is them trying to say, like, what does that actually look like on the ground operationally? You know, what can you or can you not do? Which we know has always been complicated to try and understand, like, and operationally here, you know, it's not clear what a nationwide QRF would look like. So we've had them before. The last time that we had them in a similar fashion was in October of 2020. Right. This is right after you had all the, the massive protests around the country. You're leading into a presidential election. So Alabama and Arizona had National Guard MP units on alert, about 300 people in each. If this was more permanent, though, you'd have to rotate units from a whole bunch of states. You would run out of military police units really fast. Right. Like you would have to start using other forces. There was also a QRF after nine, 11, three or 400 people. But their Missions were completely different. It was like disaster recovery, medical services, search and rescue. Right. Which, when you. So when you think through these, like, recent examples, you go, well, why are we doing this now? What is the QRF going to do now? Because there's no indications of wide scale protests anywhere. No governors are asking for support. Right. So the uncertainty here really makes it unsettling. You know, this, this executive order is getting.
- [90:17]
A
Well, and the obvious political nature of it.
- [90:21]
F
Right. And, and, yeah. And so you don't. This public order and safety is so nebulous, and it's used in a place like D.C. where, where we're seeing, you know, what the troops are doing, it makes you go, okay, there's unclear mission, there's an unclear timeline, unclear legal authorities. You know, what's the limiting factor? And this came up from Judge Breyer. You know, he's like, okay, well then how do you, how do you know when you're done? Right? Like, is it a week, is it a month, is it three months? You know, could it be indefinite?
- [90:51]
A
And is there any time limit on the DC deployment?
- [90:56]
F
There is not. I, you know, I actually think, you know, the limiting factor in some of these cases will be money, probably.
- [91:05]
A
And, and also when it starts to look ridiculous.
- [91:10]
F
Yeah, Right.
- [91:11]
A
So when you have enough pictures of enough guys standing around not doing anything or raking leaves, it starts to get embarrassing.
- [91:23]
C
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- [92:47]
F
Yeah, it doesn't seem like we're there yet. I'm still seeing all of that happen. But you know, I would, I would just end with saying, you know, as much as it can be unsettling for us not to, not to, you know, know what are we doing for how long, what's legal authorities that this is can also be unsettling for, for National Guard troops. There's some kind of misperception that I constantly hear that National Guard is much more prepared to deal with civil disturbances. And that may be true in certain cases, but law enforcement gets depending on your state or federal agency like four to six months of training right on how to do this. One of the former acting vice chiefs of the National Guard bureau was talking about this and he said on average a National Guardsman receives three to four hours of training on civil disturbances. And that's what you get. Right. And so like we're bringing people into these situations where they haven't been trained, they haven't been equipped, they're not prepared. I think this just raises a lot of questions that makes us all go, we want to know more like where's the transparency? Where's the answers? Tell us what's going on and why.
- [94:03]
A
All right, thank you, Lauren. I am aware that Voss selections just came down. I'm going to ask James to take a quick look at all 127 pages of it while Anna gives us an update on Kilmar Abrego Garcia. We are going to largely reserve our conversation about this subject for next week. Tisk. Tisk to the Federal Circuit for releasing an opinion during lawfare Live. You all should know that's a no. No. We're going to talk about Kilmar Abrego Garcia. We're going to talk about the briefly about Voss selections, which is not to be confused with Lauren Voss. And then we're going to answer two questions and then we're going to wrap. Anna, we had do it all in.
- [95:02]
B
One minute and we're going to do.
- [95:03]
A
It all in one very long minute. Anna, bring us up to speed on, on good old Kilmar.
- [95:11]
B
Yeah, I mean James, just blink twice if you need more time to read because honestly there are so many developments.
- [95:18]
A
And Anna can just keep talking for as long as you need.
- [95:21]
B
I could not.
- [95:23]
D
I was about to tell Ben I need to leave right at 5:30 so I'm gonna, I'm gonna have to go. I can give it about another 10 minutes, but.
- [95:32]
A
All right, we will wrap up in 10. Anna, give us. Give us the Kilmara Brago Garcia update.
- [95:41]
B
Yeah, so look, when we left off last week, we said Kilmara Brago Garcia is free from criminal custody. He's on his way home to his family in Maryland. But the question was, how long will he be free? The answer is not very long, Ben. Again, I could not. I truly could not believe that all of this happened this week when I was looking at everything that we needed to discuss today. Because it feels like this case has lived 10,000 news cycles since Monday, which is when Abrego Garcia was told to report to immigration in Baltimore. It was supposedly for an interview, according to his attorneys, but within a minute of. Again, according to his attorneys, within a minute of him showing up to that interview, he was detained. We also learned from various filings as well in both the criminal and the civil case that immediately following his release on Friday and this news then came out within hours of when we wrapped the live last week, his counsel was informed by DHS Council that they intended to remove him to Uganda, a country that he has no connection to whatsoever. And so everything. I mean, it's a truly grim situation in my view. He is now in custody, his. In the civil case. I will discuss that first. His counsel in that case, that which is there's the one that's pending before Judge Sinis, who ordered him, you know, to come back to Maryland to be put on supervised release. And his counsel ended up filing a new petition in Maryland District Court following his detention on Monday, they filed a habeas petition that ended up being assigned to Judge Sinis. There was an initial hearing on that matter in which Judge Sinis effectively, you know, just kind of wanted to figure out a way, the best way to move forward. She did initially at that hearing, make a series of findings about, you know, the likelihood of success on the merits involving, you know, the possibility that he could be refouled. Please, someone correct me if I'm pronouncing. I know that that's like a French pronunciation, and I hope that I'm not getting refooled to.
- [98:47]
A
I don't think it's a verb in English, by the way.
- [98:50]
B
Okay, good to know. But basically what that means is that when you send someone to a third country in order to send them back to the place where they might be persecuted or tortured effectively, she found that there's been no assurances, as far as she could tell from Uganda, that that would not happen. You know, Abrego Garcia's team has said that they have served on the government a request for a reasonable fear interview, and they have notified the government that he does have a fear of persecution or torture if he is sent to Uganda. So she went through a number of these reasons why she found that at this time there was sufficient reason to enter Trojan, barring his removal from the United States. She also found, at the request of Simon Sandoval Moshenburg, Abrego's counsel, that he should be kept within 200 miles of the courthouse in Greenbelt. The reason being to facilitate his access to counsel and also ensure that he can be transported to the courthouse for four hearings. You know, there's a lot of questions about what the procedure is going to be going forward. At that initial hearing, she asked, you know, have the immigration proceedings been reopened? Because that's a separate track, if so, Counsel at that time was not sure, but she ordered the parties to meet and confer on a briefing schedule so the habeas proceedings could go forward. Later in the week, we had another hearing in which the parties then, you know, kind of argued to the judge what, what they thought, how they thought things should proceed. The biggest update from that hearing is that Sandoval Moshenburg updated the court by telling Sinis that they have opened reopened the immigration proceedings in immigration court in Baltimore. They're seeking asylum again. That means that that is going to proceed on a separate track for now before an immigration judge. So Judge Sinis kind of said, okay, I don't have jurisdiction there, but I can still continue to move forward with these habeas proceedings, which relates to some constitutional claims. But because she kind of wanted the immigration judge to be able to have some leeway to proceed on a parallel track, she set a hearing date for October for an evidentiary hearing on the habeas petition that she will be considering. And then we have a briefing schedule as well. So briefing on that will go through September. And she extended, in the meantime, the TROs in which Abrego Garcia cannot be removed from the United States and also must be kept within 200 miles. And the government was a little bit wishy washy on that. They objected to it, but also said, however, we're committed to keeping him in the US until that time. Meanwhile, very quickly, so that James has time to jump in on the tariffs in the criminal case, we learned that in a motion that, as we discussed last week, the criminal defense team filed a motion to dismiss for selective or vindictive prosecution. After all of these developments with Uganda, there was a supplemental brief that was filed by Braver, Garcia's defense counsel, in which they told the judge, you know, actually what's been happening in the background here is the government made a plea offer and there have been plea negotiations that have been ongoing. And as a part of those plea negotiations, Brigo Garcia said that any plea negotiations would have to involve a resolution of his immigration situation. So the offer from the government was basically, you know, you can go after you serve a sentence as a result of your plea, you can go to Costa Rica. That's a Spanish speaking country. We have assurances from the government of Costa Rica that you won't be sent back to El Salvador, that you'll have refugee status, you can live freely and not be confined. And then the very next day after Abrego Garcia declined the government's request to stay in custody at least until these plea negotiations were ongoing, and then he was released. As soon as his release happens, the government switches to, we intend to deport you to Uganda. And defense counsel, of course, says, you know, this is a way of trying to coerce him into appealing plea, and this is a supplement to this selective or vindictive prosecution motion. In response, the government comes back with, in my view, a very disingenuous response that never even really addresses the Uganda situation and just says, oh, it's routine for the government to offer a plea and defense counsel was willing to engage in those negotiations and, and that kind of thing. And then finally, Ben, in the criminal case, there's also a motion for a gag order that has been filed by Abrego's defense counsel. Because since Abrigo's release on Monday, there have been a number of statements by DHS officials, President Trump, AG Bondi, in which they are, again, just like, calling him a monster, a criminal, a terrorist, a wife beater, all of these things that are things that typically you refrain from saying in order to preserve the integrity of the proceedings. So there's a number of arguments that defense counsel make about, you know, pretrial publicity, preserving the integrity of the proceedings, those types of things. And they're asking to the judge to order that DHS officials and at least prosecutors again refrain from these types of extrajudicial statements. All right, sorry, we've got one minute. Truly sorry about that.
- [105:33]
A
James, give us very briefly an overview of non Lauren Voss Selections Inc. Versus Trump.
- [105:42]
D
So this was a challenge to a series of tariffs put in place through executive orders with the authority being aipa. Ben, you gotta chime in with the correct pronunciation of the statute.
- [105:55]
A
Yes, that statute is pronounced aipa.
- [105:59]
D
Yes. So the question is whether AIPA provided the President with the authority to do this. Majority says IPA does not provide authority for these particular tariffs in these executive orders. But we are not deciding whether there might be some other types of tariffs that potentially could be used available under ipa. There are series, there's a group of judges not identified as concurring. This might be a tick of the Federal court, Federal Circuit that I'm not aware of, offering, quote, additional views. They take a broader view that I, EAPA could never authorize any type of tariff. And then there are four dissenters who say, actually, not only does IIPA permit the tariffs as a general matter, it permits these particular ones. And there was not an unconstitutional delegation of the authority. The majority opinion says, look, when Congress wants to delegate to the President the power to impose tariffs, it does that explicitly. IPA is not such a specific delegation. The language there talks about regulating imports. And so the bottom line, though it is a fractured opinion, is that the particular tariffs in the executive orders are found not to have been again, authorized or permitted under ipa. I suspect the government is going to the Supreme Court on this one.
- [107:27]
A
Yes, I suspect so, too. James, feel free to drop off. Thank you so much. We have two questions. I never want to not get through our questions. First one has Lauren's name all over it. From Kevin. Could Trump legally maintain a continuous national guard presence in D.C. until the new Congress is due to be seated in 2027 without violating home rule by staggering 30 day deployments from several states? Hegseth said last Wednesday that if Trump thinks that he has to extend his order to ensure that people have access to public safety, then that's exactly what he'll do. I'm not even sure he knee would need to stagger 30 day deployments.
- [108:17]
F
Right, that's the bad news. Yeah, it's not, it's not needed. So I think the answer there is you're, you know, your 30 day home rule that has to do with the federalization of the MPD. And so, you know, once that ends after 30 days, unless there's a joint resolution, you couldn't force the MPD to then, you know, deputize the National Guard. Right. But you can keep the National Guard there, especially the D.C. national Guard, you know, 49, 102, 103 do not have those types of limitations on them. And then the, the out of state national guard forces under 502F also don't have that limitation. I mean, after the January 6th insurrection, we saw troops stay in D.C. under those same provisions for about five months. Yeah, about five months. So unfortunately, you don't, you know, you don't even have to do anything about it. You can just keep them there.
- [109:15]
A
Right? So, Kevin, you've thought through this too much. Stop thinking so much. It's not necessary. The anonymous attendee asks, I'm aware that judges really, really don't like having their rulings reversed by higher courts insofar as the conservative majority on the Supreme Court has demonstrated a batshit crazy propensity. That's a technical term, I'm aware. To reverse rulings of some very distinguished lower court judges. Is there a danger, so to speak, of federal district and circuit court judges going along with what they anticipate the Supreme Court will do? I will handle this one myself. And just say, first of all, there is nothing wrong with the Supreme Court reversing distinguished district judges. That's their job. There is something wrong with them doing it on bases that are unsound when the lower court judges are right. But that has nothing to do with whether those judges are distinguished or not. It has to do with whether those judges are correct or not. And sometimes some very stupid lower court judges get things right and some very distinguished lower court judges get things wrong. So that's the first thing. The fact that the Supreme Court reverses them does not mean that the Supreme Court did anything inappropriate. The answer to your question is that judges sometimes do. Lower court judges sometimes do anticipate where they think think the Supreme Court is going. And it's one of the irritating tensions. It really irritates lower court judges. A good example of this is like the Humphreys executor situation where everybody knows the Supreme Court is eventually going to require Humphrey's executor to have an executor, so to speak, but they haven't done it yet. And so is the lower court judge support supposed to a anticipate where the Supreme Court is going and thus get a little bit ahead of precedent? Or is the lower court judge supposed to act like Humphrey's executor is just good law and then get reversed? And the answer is technically the lower court judge is supposed to do the latter. But there's always a temptation to say, okay, we all know where this is going and to get a little bit ahead of the situation and that way you do spare yourself reversal. You also have some capacity to be perhaps influential. I don't think this is a big problem, to be honest. I think lower courts are, are, you know, obviously they should have one eye on what the State Supreme Court is telling them, but they we don't see them pulling their punches out of fear of what the Supreme Court is going to do. And I would say on the list of problems, this is a pretty minor one, folks. We're going to leave it there. I really thought we were going to end on time today. I apologize. I didn't anticipate the Voss selections. Lauren, thank you for joining us today. Anna Bauer, Scott R. Anderson, James Pierce Quinta Jurassic thank you and we will be back next week. Remember that lawfare 15th anniversary thing? Remember to become a material supporter. If you are not one already, you can join us in the inner sanctum of this Zoom Studio and have your questions answered. And so many other benefits to being a Lawfare material supporter. I could count them for you, but that would detain us even further. See you next week.
- [113:20]
E
The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other lawfare podcasts by becoming a Law Fair major material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfairmedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [114:18]
G
Change isn't coming.
- [114:20]
C
It's already here.
- [114:21]
G
Commerce is going digital and tax complexity is multiplying.
- [114:26]
C
Tax rules evolve, rates shift, data floods in.
- [114:30]
G
Vertex connects it all.
- [114:33]
C
A global tax compliance platform powered by.
- [114:36]
G
Tax ready data and intelligent systems.
- [114:39]
C
Smarter Tech Continuous tax compliance built in confidence. Learn more@vertexinc.com.