Lawfare Daily: Discussing Litigation Against Trump Administration Actions

[Intro]

Roger Parloff: What's arisen now is that these things are going so fast, people are even coming up with emergency-emergency things before you can even do a TRO. And so one is called an administrative stay. The other is to twist the arms of the people to agree to a consent decree.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare, here with Lawfare senior editors Anna Bower, Quinta Jurecic, and Roger Parloff.

Anna Bower: I'm looking at a lot of the factual development around the DOGE stuff because I'm very interested to see how, in court, the Justice Department, you know, is representing itself and how that contrasts or compares to what is being publicly reported.

Benjamin Wittes: In a live recording on Feb. 7, we discussed lawsuits involving Trump administration executive actions, ranging from the potential firing of FBI agents who investigated Jan. 6 cases, to DOGE's attempts to gain access to the executive agency's data, to the attempt to dissolve USAID, and the attempt to obliterate birthright citizenship.

[Main podcast]

So this is an update on the various national security related litigations arising out of Trump executive orders as of 5 p.m. on Friday. And there are literally hearings that are still ongoing that we are monitoring in the background. So, things are chaotic and we are doing our best to keep track of as much of the litigation as we can.

Quinta, get us started. I'm gonna ask you the hardest question I have ever asked anybody on a Lawfare live, which is, give us a sort of high-level overview of the, of the litigation to date concerning Trump executive orders.

Quinta Jurecic: So I will say I have never truly understood before now what people mean when they say my head is spinning.

Benjamin Wittes: Or drinking from a fire hose.

Quinta Jurecic: Yeah. No, I mean, I actually feel—

Benjamin Wittes: Use your metaphor, your cliché of being overwhelmed.

Quinta Jurecic: I actually feel, like, slightly dizzy and disoriented because of how much is happening right now, and so I'm going to apologize if I leave anything off.

But we, Lawfare, so we have an amazing tracker of legal challenges to Trump executive actions that is maintained by the wonderful Anna Hickey, who is running this fine Zoom this afternoon.

And according to her tracker, it looks like we have, so there are multiple cases on birthright citizenship. There are two preliminary injunctions so far. I've honestly lost track of whether there are other temporary restraining orders, but there are two preliminary injunctions. One of those injunctions has now actually been appealed up to the Ninth Circuit.

There is a vast range of litigation on Elon Musk's DOGE project including a hearing that is going on right now—which is the hearing that Anna Bower is listening to—on suing to attempt to prevent Musk's team from accessing material at the Department of Labor. There's another one at the Department of Treasury which resulted in—I actually can't recall if it was a TRO or a consent agreement.

Roger Parloff: A consent order.

Quinta Jurecic: Thank you, Roger.

Benjamin Wittes: For those who are neophytes, a consent order is the parties agree. So in this case, the government and the plaintiffs agree that the judge issues an order that has certain terms. So in this case, it is a government agreement not to do certain things while the case is being litigated.

Quinta Jurecic: Exactly. And so, and the—as we, I think we'll discuss, the U.S. District Court for the District of Columbia has been leaning very heavily on those recently. I don't know if that's a recent practice or, or what, but boy are we seeing a lot of them.

So, there is a consent order that blocks access except for two members of Musk's team to internal Treasury data for people outside the Treasury department. One of those members resigned yesterday because of racist tweets. When I say racist tweets, I'm not projecting onto that. He literally tweeted, I was a racist before it was cool. He now apparently may be coming back. I don't know if that has to do with the consent order. But that order barred those individuals from changing the code in the system as opposed to just viewing it, which is. It's still deeply concerning, but there you have it. So that, that's one.

There's litigation relating to Trump's efforts to sort of bring the FBI to heel, which Roger has been following very closely. There is litigation over the use or the sort of building of an unsecured OPM email server to email every federal employee and apparently employees and judges in the judicial branch as well.

So there's nothing on that yet, but there is a temporary restraining order blocking the Musk backed deferred resignation program of ambiguous legality from going forward at the very least until Monday.

What else am I missing? There is litigation filed—I think going both directions—filed from states and against the state of Illinois from the federal government over sanctuary jurisdictions and the ability of the federal government to enforce compliance with immigration enforcement actions.

There is litigation attempting to block the new efforts to implement Schedule F, the effort to sort of, shift an enormous amount of federal employees to at will employment and remove their protected status as civil servants.

There is litigation about the federal funding freeze, which now seems so very long ago, but there I believe are two temporary restraining orders now. One in a case in D.C. brought by a group of non profits; one in Massachusetts brought by the states—excuse me, Rhode Island. I can't keep track. It's New England. It's all the same.

The case brought by the states, there was actually just a filing raising questions about whether or not the federal government is complying with the terms of the order, given that a lot of the funding that was nominally, the taps were turned back on, organizations apparently have actually not received that funding, so I think there's a question there.

Let's see, what else? There is litigation on the new expedited removal policy that has to do with the administration's practice of sort of, doing exactly what it says, putting people who are undocumented or don't have legal status in the country through a sort of speedier process to remove them from the country.

There is, are multiple cases against the ban on transgender people in the military. And what else? There, oh, yeah, of course, there is a, there is another suit that there's a hearing just finished in a case filed just yesterday over the effort to basically destroy USAID. Our amazing intern Caroline Cornett attended that hearing.

She can't be here now, but she took notes. And so I'm relying 100 percent on her wonderful work when I say that it now seems that Judge Carl Nichols in D.C. has—is going to issue a temporary restraining order that blocks, to some extent, in some way, the placing of thousands of those employees on administrative leave.

I think it also blocks them—

Benjamin Wittes: And know Carl Nichols, as Roger can describe in excruciating detail, is one of the most Trump friendly judges on the district bench, arguably one of two on the district bench in Washington. So if he were to actually enter that TRO, I think that would be a pretty striking development.

I didn't mean to interrupt you. Sorry, Quinta.

Quinta Jurecic: No, not at all. I believe that Judge Nichols's order also will affect the USAID employees who were going to be called back into the United States from their positions overseas.

Roger Parloff: He hasn't decided that part.

Quinta Jurecic: Okay. Thank you, Roger.

Roger Parloff: But he's blocking the 2,000 that were going to be put on administrative leave tonight.

Quinta Jurecic: And this is, I mean, this is only the slice that we're following specifically on Lawfare that's in our kind of rule of law, democracy, security issue.

Benjamin Wittes: Yeah, I was going to hold this question for, for later. But actually describe in the highest altitude terms, what we're not talking about here that is also going on.

Quinta Jurecic: So the, the group of cases—again, I'm gonna leave things out, and if I left something out that you all have been following, I apologize, this really is dizzying. The bloc of cases that I've been following that I haven't mentioned so far has to do with a number of Trump's orders related to protections for protections and access to medical care for transgender people.

So there was an order that was requiring—I, I'm not sure whether it was only for transgender women or all transgender people, but the report, the cases are only on behalf of transgender women, but people who are incarcerated moving transgender women from women's facilities into male facilities. There were a number of lawsuits filed essentially saying that this would potentially put these people's life at risk. I believe there is at least one, maybe two of those cases that transfers have been halted.

There was also a lawsuit that was filed recently against the executive order limiting access to federal funding for hospitals that provide gender affirming care for individuals who are, I think, under 19 or 18. So that's one, that's another sort of realm.

I actually realized as I was talking—there, there's another case that I forgot that we should also mention that is on behalf of a number of scientists who are suing the administration over the removal of massive amounts of scientific data from government websites.

And again, I'm sure that I'm leaving things out.

Benjamin Wittes: So this is a really good, I mean, it's just a useful case study in line drawing as the editorial hierarchy in, in Lawfare. You know, we cover security issues. Generally speaking, trans healthcare, not gonna be in that. Generally speaking, scientific data issues, not gonna be in that.

But there are big exceptions. So, you know, trans people serving in the military. Those litigations are solidly within our area. Erasing data that involves, for example, bird flu pandemics, right? That's solidly within our area.

So we're trying to be very thoughtful about where we have value to add and where our expertise is useful and where others need to take the lead in all of these areas. Like, you know, as Hannah Arendt said about the Eichmann case, these are cases that explode legal systems. And, you know, we're, we're dealing with a lot of comp-, you know, we've never answered questions like this before and so we're, we're, we're doing it as we go.

All right, so Roger, I'm going to start with, because we don't have Anna Bower here, I'm going to start with cases that I know you've been following, that I know our viewership, listenership is attentive to. What's going on with this FBI rebellion and the, and Emile Bove's efforts to fire every FBI agent who ever said the words Jan. 6.

Roger Parloff: There's a couple lawsuits in D.C. that have been consolidated, and they both stem from this situation that began, I think it actually began the week of Jan. 27, which was when Emil Bove began to ask the FBI, the leadership, to give him the names of—this is how Bove tells—the, the names of the core team of FBI career people who handled the Jan. 6 investigations.

The acting director, Brian Driscoll, who seems to be a very brave man, pushed back. And we, we don't have his version of what happened, but he did not provide that information. Whatever he did, Bove deemed it insubordination. On Jan. 31st, he issued a directive to get around Driscoll and to go and to order all of the agents to answer a survey—and either the agents themselves or their superiors in the head office can do this—describing their role.

And then there was more pushback and back and forth; the deputy, Driscoll, managed—eventually decided that he couldn't resist this. It was legitimate for them to inquire, but he turned over the secure, the results, but not with the names, but with the employee unique employer IDs. And then I guess just today or yesterday, maybe there was more buckling and the names went over.

Anyway, on Feb. 4, these two suits were filed. One is for nine agents and it wants to be a class action for all 6,000 FBI. The other one is for seven agents and the FBI Agents Association, which represents 12,000 of the 13.8 thousand special agents. What they, they're both obviously, they don't, people don't want to be fired, illegally terminated. And they mention, you know, they discuss that in their complaints but I think it's too early. Nobody has been.

And, and so at this point, what they're asking for and, and in the temporary injunction and preliminary injunction, they're trying to prevent this information from being publicly, their names from being publicly leaked. There's a lot of the released Jan. 6 people are in social media demanding retaliation and some, you know, legal retaliation like prosecution, but there's a lot of fear of vigilantism.

There was an indictment sometime back of one of the Jan. 6 people for conspiring to murder the FBI agents who investigated him, and he was convicted of that, by the way. And you remember also after the Mar a Lago search, Trump was attacking the FBI agents as Gestapo and somebody attacked the Cincinnati headquarters of the FBI with a, I think he had an AR 15 and a nail gun, and eventually was shot to death.

So, there is a real fear about their names getting out there. And so, we had a hearing yesterday in front of Jia Cobb—Judge Jia Cobb—and it took a long time because the Justice Department lawyer kept having to check with superiors. He couldn't, what she was trying to work out was one of these consent orders, which a number of like, like, Quinta said, it takes the place of a TRO. You want to brief fully the issues before a preliminary injunction. So a TRO is usually an emergency thing before you can do all the briefing.

And then what's arisen now is that these things are going so fast, people are even coming up with emergency-emergency things before you can even do a TRO. And so one is called an administrative stay; the other is to twist the arms of the people to agree to a consent decree. And here the consent decree was going to be that the government would not release these names. And the interesting thing was that the DOJ lawyer—or I, I think he was actually an AUSA—Jeremy Simon, he was happy to do, to talk for the DOJ, but he didn't feel he had authority to talk for the government, because how would he get authority there?

And of course, what everyone's afraid of—he didn't say this, but nobody knows where the Musk people have gotten into. And you know, he doesn't want to go on the record and say, no, it won't be, the government won't release these names and then some 25 year old Musk guy gets it to Musk and Musk puts it on Twitter.

So that was a hang up, but eventually this morning they agreed to that language. And so we do have a consent decree and that will tide us over. They'll begin the briefing and then we'll get full briefing, and March 27, I think, is the date she set for the hearing.

Benjamin Wittes: But that's actually a while.

Roger Parloff: It is.

Benjamin Wittes: I mean that, that's a genuine slow things down, at a at a reasonable pace kind of thing, no?

Roger Parloff: It, it is, but I think, was it today? I think it's today—Jim Sciutto of CNN just tweeted, Breaking: Trump says he plans to quickly, quote, quickly and very surgically, unquote, fire some FBI agents involved in Jan. 6. So, I don't know if he plans not to name them–

Benjamin Wittes: Yeah, is, is the idea that you don't name them and therefore it doesn't violate the consent decree. You can fire whoever you want?

Roger Parloff: I don't know. And also during this back and forth about, you know, would he sign this consent decree or not, he also said you know, I don't think the judge has the power to ban, to, to enjoin the attorney general from telling the president anything he wants to tell him. So there, there's another thing there.

So I don't know if it will really last till—it is, it is longer than most of these judges. Like, in, in the, the DOGE case involving the Treasury, there was a consent order, but we're going to have the preliminary injunction hearing Feb. 24.

Benjamin Wittes: Right. That, that one's much more moving at the pace of the Trump administration.

Roger Parloff: Yeah.

Benjamin Wittes: So let's actually take Roger's cue there and talk about that DOGE litigation concerning the Treasury Department. So Roger, tell us about that litigation, which also has a TRO, but in a much shorter time frame.

Roger Parloff: Yeah, this one is before Judge Kollar-Kotelly, also in the District of Columbia. And you remember, before Secretary Bessent, the Treasury Secretary, was sworn in—he was sworn in the 28—DOGE was already trying to get into its computers and their highest career official named David Lebryk was blocking access. And then as soon as Bessent was sworn in, Lebryk was placed on leave and then he suddenly retired. And people did get in.

And so this seeks an injunction—TRO and preliminary injunction—to stop these guys from leaking any information, and to stop them from having access to this information; it's a Privacy Act, allegedly, violation. They also raise Administrative Procedure Act. They also raise First Amendment and Fifth Amendment issues.

And here again, the judge wanted a consent order and eventually got it. It developed that there were two employees, DOGE employees in Treasury. Judge Kollar-Kotelly was asking the DOJ to commit on this stuff, and the DOJ is calling them a special government employees.

The, the plaintiff's lawyer, you know, raised, although he didn't really aggressively push it, you know, that we don't really know how long they've been special government employees. We don't know what that means. I don't think people have seen any official paperwork showing, you know, is this like declassifying a document? The president just thinks it, that, you know, okay, they are special government employees and they become special government?

But anyway, it developed that only these two, Marko Elez and Tom Krause, have access at least according to the, the lawyer, a DOGE lawyer. And Elez is really the, the coder, Krause seems to be his supervisor. They claimed that Elon Musk does not have access to this stuff. And so they worked out a consent decree in which it would, it was sort of like a stand-, a consent order.

It was like a standstill. These two people can stay in there, but allegedly nothing will leave Treasury. And the White House is considered outside of Treasury. And, and the White House would include the DOGE people because they're set up under the White House. That's where that stands.

We also got some detail about the sorts of records that we're talking about. They were, you know, there are social security numbers. There are employment identification numbers, physical and electronic addresses, payees, people's banking institutions, their account numbers, their routing, routing numbers.  There's issue–there's stuff about people with debts and their private financial situations. There's credit card numbers, Because it's both payments and receipts. So it's about $5 trillion in receipts and $6 trillion in payments that go out. Anyway, that's, that's where we were there.

The other interesting thing to me was the DOJ lawyer, and I don't want to get him into trouble, but he was hedging as—as any good career person would, for the same reason that I mentioned in the, in the FBI case—because he kept saying as far as I, as far as we know, nothing has left Treasury, to the best of our knowledge. Not that I'm aware of. I'm not aware of any plan in which Elez would share info with DOGE in the executive office of the president.

And, and, you can see that they—just, it's, it's chaos, and they, they are straight shooters, but as you go up the hierarchy, at some point, you can no longer guarantee that you're dealing with straight shooters.

Quinta Jurecic: I think that that sort of question of like what exactly the Justice Department lawyers are willing to say in front of a judge is really, really important. And while courts are not the solution to everything, as an example of how court hearings can be really valuable right now when everyone is trying to figure out, to put it bluntly, what the hell is going on.

Because, you know, Trump can say anything, Musk can tweet anything, but a Justice Department lawyer who cares about their bar license is not going to go in there and say something that isn't true without triple checking it. And so I think it's really telling, for example, that this attorney was not willing, was, you know, being very, very careful in his, in his language.

Roger Parloff: One clarification, when I mentioned Marko Elez, that's the guy that Quinta was referring to that last night was apparently parted ways with the Treasury, with DOGE, after these racist Twitter things were found, but apparently is likely to come back.

Benjamin Wittes: All right. So, Anna, you just wrote up a really interesting example of the hesitancy of Justice Department lawyers in, in the case that is Mr. Humphreys’, to make clear commitments. Can you tell us a little bit about that?

Anna Bower: Yeah, I mean, I—look, it's very common for attorneys to use qualifying language, things like as I understand it, or as I know it, or I believe or our understanding, those kinds of things. I mean, you know, you have a professional responsibility not to mislead the court and you have a duty of candor.

So it's very common to hear those things. It's sometimes a matter of habit. But here I would say that it was very noticeable that he over and over again was stressing to the court that he was representing things as he knew them based on, you know, a few hours of trying to ascertain the facts that morning before the hearing, as opposed to, you know, having a fully complete understanding of the facts.

At one point, there was even a part of the hearing in which the judge had to say, you know, Mr. Humphreys, if you want to take a minute to consult with someone as I'm asking you these questions, you, you can. And, and there were a few times when he was honestly quite—and I, you know, Roger and Quinta, if you listened to this hearing, I'd be curious for your thoughts—but there were a few times when he was really reluctant to outright answer some of these questions about the factual circumstances of the case, things like what has been done in the past with these records as opposed to what is being done now.

And in the piece, one of the things that I talk about that I also noticed during the hearing is that he over and over again, repeatedly, when asked, you know, what are the access permissions that the DOGE affiliates have, he used the present tense as opposed to saying, there has not been any, you know, read and write access. It was always, there is read access,

And, and look, I don't know, you know, he he's a lawyer; he's being careful; he might have incomplete facts. So I, I'm not I'm certainly not suggesting-

Benjamin Wittes: Yeah, just to just to be clear. None of us here is criticizing Mr. Humphreys–

Anna Bower: Yes.

Benjamin Wittes: –is a career Justice Department lawyer and is obliged to zealously represent the interests of his client and is appearing to do so in a In an ethical and careful fashion.

It is notable, as Anna says, and as Roger points out, that in doing that he cannot make clear representations about what is and isn't going on, and I think that's the kind of thing that Judge Kollar-Kotelly is likely to—I mean, this is a very experienced judge and a very careful judge—and she is likely to have made a point of getting him clearly on the record to the extent that she can.

Anna Bower: Yeah, and I, I mean, look, every lawyer has been in a situation where you don't have time to, like—this was a hearing that was set kind of last minute. I think there was less than 24 hours notice. You know, you're working with a limited amount of time to try to figure out the facts. You also, to some extent, might be working with people who don't, like, fully give you the facts.

And so I, I think that, you know, to be clear, the point here isn't about the advocate. It is about the making the point that in terms of what we know from, from what was represented at the hearing is, you know, that there were these claims that were being made about present tense access, but not so much about what has happened in the past. And that, you know, maybe the Justice Department itself is not fully apprised of all the underlying factual circumstances.

Benjamin Wittes: Alright, so Anna, tell us about the hearing that you have one ear on while you're talking to us. What hearing is that? Who's the judge and what are they talking about?

Anna Bower: Well, to be honest, Ben, it's a bit of a mess. It is before Judge Bates. It is another DOGE suit this time against the Department of Labor, or DOGE related suit, I should say; DOGE is not the one, obviously, bringing the suit.

But it's by some federal employee unions, again, over access to employee or private information under the Privacy Act. They actually were able to come to an agreement ahead of this hearing in which essentially there was this agreement that DOGE would not move forward with trying to access the systems until this hearing.

And Quinta, you might have to step in and help me out a bit because I missed the very first part of the hearing—I was having some trouble actually accessing the public line. But from what I understand at the very beginning of the hearing, the judge basically tried to get the parties to come to some sort of a short-term agreement, because of course, this is the–

Quinta Jurecic: They love those consent orders. They love them.

Anna Bower: They do. So they were trying to get them to come to a short term agreement instead of the judge having to decide on whether or not to enter a temporary restraining order. He initially said, why don't you guys take 10 to 15 minutes? We were then sitting in silence for like over an hour—

Quinta Jurecic: An hour and a half. It drained my phone battery.

Anna Bower: Yeah, my phone is on–yeah, my phone, is like completely drained from it.

So then they came back and I was thinking, oh, surely after that long, they would have come to an agreement, but no, they, they couldn't come to an agreement. One of the twists in the case, I think, is that the plaintiffs plan to add a number of different agencies in an amended complaint because there's a ton of other agencies that have in recent days—public reporting suggests—DOGE has also tried to access the systems of those agencies.

And so that was kind of, I think, one of the roadblocks in terms of reaching some sort of shorter term agreement. There was a ton of back and forth about like, how can we move forward, what can we do? Ultimately, the judge said well, alright, I guess we're going to have this TRO hearing now and you're going to do it within the next hour. I was in the middle of still listening to that ongoing TRO hearing while you all were discussing various other matters.

You know, I'm not entirely sure what's going to happen. There's, there's a lot of talk about like the factual record. The judge seems very concerned that, you know, they, they did have some declarations from employees or, and, but, you know, they asked him to take judicial notice of some of the public reporting. But he's not entirely concerned that there's any like real threat of harm because it seems to him to be a little bit speculative right now, particularly considering that they did have this kind of agreement to put off any sort of access from DOGE pending this hearing.

So that's kind of where we were when I jumped back in. I don't know what's happening now, but it's it seems like the judge is a bit skeptical of, of the potential harm, but we'll see.

Benjamin Wittes: So it seems to me, and I'm curious for your thoughts on this, Roger, that this is Judge Bates, who is one of the very finest judges on that bench. You have Judge Kollar-Kotelly and Judge Nichols, who are, you know, all seem like—this is the range of opinion on that bench. And they all seem at least somewhat willing to put a stop on things, at least on a temporary basis. That does not seem like the kind of noise you would want from the bench if you were the Trump administration.

Roger Parloff: Yeah, especially, Judge Nichols is the most interesting. I wouldn't call him Trumpy. I think that's a little—he is appointed by Trump. He's very thoughtful.

Benjamin Wittes: I didn't mean, I just meant if you think about the judges who've issued rulings, particularly in J6 cases that are favorable in the, you know, you have him and you have Trevor McFadden and you have really nobody else, right?

Roger Parloff: Yeah, yeah. He's very thoughtful. He's a, he's a Clarence Thomas clerk. He, he did do the Bannon case. Bannon was convicted. But as, as you say he, he was the only judge on the district court that foresaw how, how the Supreme Court would rule on the corrupt obstruction of official, of an official proceeding statute in Fisher.

And so, yeah, that's, that's an important one, although we don't know exactly what he's going to do, and he characterized it apparently as narrow, but if it saves the jobs of 2,000 people, I wouldn't call it so narrow.

Benjamin Wittes: So this is the USAID case that is asking for and we have not yet seen the order, just his intention to issue it. Is that right, Roger?

Roger Parloff: That's right, and I guess he's gonna write it, write it now, and he's also still weighing whether he can claw back the 500 that were, 500 that were already laid off, whether he has that power. So that's a very interesting one.

Benjamin Wittes: Alright, Quinta, before you have to disappear in a puff of smoke what are you looking for over the next few days as you try to make sense of the whirlwind?

Quinta Jurecic: I don't even know, to be completely honest. I mean, I will be very interested in what the government's response is to the motion that I mentioned earlier that was just filed in the state lawsuit over the OMB freeze, claiming that—or pointing to reports that—the freeze has not been fully unpaused and arguing that the government is not in compliance with the TRO. I think it would be very interesting to see, to the points we made earlier, what the Justice Department is willing to tell a judge about that.

I think also the resolution of all these DOGE lawsuits is—or the progress is going to be very interesting in particular because ProPublica just reported that two former Supreme Court clerks and one soon-to-be Supreme Court clerk has, have joined the DOGE effort, including a number of people. So I do wonder how that will affect let's say, DOGE's willingness to take legal risks.

Benjamin Wittes: Yeah, I mean, just, just, just to be clear, any sign of high quality lawyer involvement in DOGE would be progress, right? Because irrespective–

Quinta Jurecic: I mean, I wonder if it'll bring the whole thing to a screeching halt, frankly. Right.

Benjamin Wittes: Irrespective of your ideology, if you ask, if you, as DOGE, ask a lawyer are there legal obstacles associated with our doing blank or we're planning to do blank, any thoughts on that—there's a professional obligation to say oh, yeah, you could risk violating this law and that law and that law and that law,

And I mean I think any sign of serious lawyers being involved. I don't you know, you can make them all Alito and Clarence Thomas clerks, for all I care. I mean, that's gonna help.

Quinta Jurecic: I believe Alito and Gorsuch.

Benjamin Wittes: Fine. I'm like, get some lawyers involved.

Quinta Jurecic: Yeah, no, so I will genuinely, not in a snotty way, will actually be interested to see what effect this has because we have emails that have been reported where a DOGE person asks someone to do something, the civil servant says, I think that would be illegal, CCs the general counsel's office. And the DOGE person, I think in this case essentially wrote back, you know, well, you might have some liability too—like, very like I'm rubber, you're glue in writing.

So again, I would, I will be very, very curious to see what having these lawyers on the team, how that does or doesn't shake, be shaped behavior. And if it doesn't change their behavior, how long the lawyers last.

Benjamin Wittes: On the DOGE team this week, on Kash Patel's deep state enemies list next week. All right, Anna Bower. What other cases have you been following?

Anna Bower:  Oh gosh I mean, honestly Ben I think that the DOGE case is–because we just got another DOGE case this morning, a Department of Education Doge case— the DOGE activity is kind of taken up my brain this week.

But you know, I'm, I'm also looking to see what is going to happen with the USAID case. We've already talked about that a little bit. And I, I assume that you guys talked about the FBI case.

I will also say I'm one thing that I'm following closely—and, and when folks read my DOGE piece, when it publishes at some point tonight, they'll hopefully understand this—that I'm looking at a lot of the factual development around the DOGE stuff because I'm very interested to see how in court the Justice Department, you know, is representing itself and how that contrasts or compares to what is being publicly reported. And so I'm looking at that.

And we just had this development today where Marko Elez, I believe is how you pronounce his name, is maybe coming back into DOGE. And I, and I have to wonder if that has something to do, you know, the way that it's being portrayed online by Elon Musk and JD Vance is, oh, that he's a victim of cancel culture and that kind of thing, let's bring him back.

But I, I think that, or I, I mean, I—this is complete speculation, but I will just note that, you know, the judge's order in this case prohibits basically anyone else from, who is affiliated with DOGE from being hired as a special government employee to work and have access to the payment system at Treasury.

And as far as I could tell, based on what they were saying in the hearing the other day. It's basically Marko Elez who is the one who has the actual kind of, you know, system knowledge whereas Tom Krause, who's the other person who is allowed to continue to have access is more of the like executive kind of director type of person.

So I have to wonder if maybe bringing Marko Elez back has a little bit to do at least with the fact that they can't just hire someone else to get into that Treasury system. It's basically Elez or no one.

Benjamin Wittes: All right. So Roger, are there other cases that you've been following this week that we should talk about?

Roger Parloff: Well, I've been, you know, I've just been trying to keep track of them, but like Quinta said, my, my head is, is sort of swimming. I think the, you know, the big thing that keeps recurring, these cases are, have a lot of similarities.

And you know, the case, the questions that are going up to the Supreme Court are going to be about how far does this unitary executive stuff go? And there's a good article, Steve Vladek has a good Substack—today or yesterday, I don't, I don't know which. But you know, all of the indications from the Supreme Court, you know, in recent years have been, have been piling on additional power even in the face of who Trump is.

So I, you know, I'm very curious obviously, I, care about our country. I don't know what they're thinking up there. Are they proud of themselves? They may be. They say, this is, yeah, this is what we wanted, you know, a strong executive that can, there are no more, there will be no more civil service constraints. We won't have good government anymore. It'll, it can be as corrupt as he wants. It can be, it’ll just be a personality cult and a despot.

But unless somebody up there is thinking, not up there, but up on the Supreme Court is thinking it's time to rein back, we're in trouble.

Benjamin Wittes: All right, so there is one other case that has resulted in a TRO, and that's one that was actually last week, which is the birthright citizenship case. Where are we with that? Do either of you have a sense of, of that case?

Roger Parloff: There are two preliminary injunctions. Now, I think they're both national and one has served, filed a notice of appeal to the Ninth Circuit. The other one is in Maryland. So it will go to the Fourth Circuit.  And I, and obviously they, those courts, uh, found it to be an easy question, but I, I haven't pored over that law. Have you, have you, Anna, do you know more about those?

Anna Bower: So I do know that the judge in the Washington case, I was trying to pull up some of the quotes from that, but I'm not able to get it up quickly enough. But Judge Coughenour, who is a, I think that's how you pronounce it, hopefully, who is a Reagan appointee. From what I hear from people who talk about him, he's a pretty, you know, fair but very tough judge and he's a kind of straight shooter,

And he, like, really laid into the Trump administration over this order and there were some choice quotes that I wish, again, that I could, that I could read aloud but I'm, I don't have them in front of me. And, and that's the one Roger that I believe is going to the Ninth Circuit. Is that correct?

Roger Parloff: Yeah.

Anna Bower: Yeah. And then we've got, we've got some additional hearings coming up in other birthright citizenship cases. I believe that there is one on the tenth in, I know that John Hawkinson is going to correct me on this—I think it's New Hampshire, but I might be wrong.

Benjamin Wittes: Yeah, so but I think this identifies a lot of the direction of a lot of these cases that you have. I mean, look, predictions are, are worthless, but this case, you know, you have this flurry of executive activity. Then you have a TRO and a preliminary injunction, actually two of them in discrete locations, they're both nationwide, and so it's sort of frozen in place and becomes an appellate issue. And I think we're gonna start seeing that in a bunch of these other areas.

So, I don't know what the freeze in place will look like in the DOGE case, but there'll be some activity that the courts are gonna say, you just can't do that while we're figuring this out. Get a preliminary injunction then, and then that will go up.

And so you'll have a set of appeals that are kind of based on preliminary injunctions that will raise all the major questions that we're going to see, and I think that's how this thing is going to operate, critically to slow down because the speed is has the worst implications, in my opinion, for good policy, for good outcomes, for understanding what the heck we're doing.

Anna Bower: Yeah. Can I mention actually a non-civil litigation thing that I'm kind of following right now as well that is still it's not in the full blown prosecution phase, but there's been some back and forth over it, which is this kind of weird situation in which Elon Musk has quote, referred individuals for investigation to the interim U. S. attorney in D.C., Ed Martin. There's been this, like, very bizarre back and forth between the two of them–

Benjamin Wittes: On Twitter.

Anna Bower: –on Twitter, in which, like, Ed Martin will—and again, this is the acting U.S. attorney for the District of Columbia—who will send a billionaire a letter from the Justice Department and it'll say sent only on X, And he will, you know, send a screenshot of this letter to Elon Musk on X and–

Benjamin Wittes: And to be clear that letter. I mean, one of them. I don't usually pronounce, make ethical judgments. But one of them, like, strikes me as, I don't know what state he's barred in, or, but, it actually says, I don't have the text of it in front of me, but it says, if anyone's done anything illegal or simply unethical, we will pursue them to the ends of the earth. Am I getting that wrong?

Anna Bower: Yeah: If people are discovered to have broken the law or even acted simply unethically, we will chase them to the end of the earth to hold them accountable. This is from the federal prosecutor.

Benjamin Wittes: Right, so a federal prosecutor has no authority to chase anybody to the end of the earth for simply acting unethically. And, you know, to announce in a public statement that your office is committed to doing something that you have simply no authority to do, I would be very surprised if the Office of Professional Responsibility at the Justice Department did not take—I would be really, like they should take that very seriously and it's an announcement of intention to abuse your authority as a prosecutor.

And so I, I look for somebody to file complaints about that. And I think those complaints, by the way, also with the potentially with the inspector general-–although normally, lawyer conduct as lawyer is handled by OPR, so both. But, but that, that's a very disturbing thing for a, a prosecutor to do.

Anna Bower: Well, no, and it's not just that, Ben, it's also the fact that You know, like when's the last time you saw a U.S. Attorney make a public communication about opening an inquiry or an investigation at the behest of, you know, a public figure and is giving the public these updates.

It's just not how federal prosecutors tend to work like at the investigative stage. It's very odd. It's really, you know, does not at all track with the, what I understand to be the kind of ethical principles that guide federal prosecutors. And it really is all just very weird, and I'm keeping my eye on it because I, I do think that, you know, especially today with this letter, it overstepped a lot of ethical boundaries.

Benjamin Wittes: Yeah, I mean, today's action was far more dramatic than anything he had done before, although his social media has been—I think the technical term is weird as hell for, for quite a while.

So look, we are going to leave it there. That has been one hour to catch us up on civil litigation and the antics of Ed Martin. Roger Parloff, Anna Bower, Quinta Jurecic thank you all. I have a feeling we're going to do this again next week, I don't know. We used to do, you know, Trump trials and tribulations every week, and this is kind of the other side, you know, Trump lawsuits and tribulations. We'll be back folks.

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