Lawfare Daily: The Trials of the Trump Administration, March 14

[Intro]

Matthew Boaz: Guantanamo is, I think, largely about optics in this case that it's a pretty horrible place to be. But as of now, there's no indication that there will be future detainees at Guantanamo.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare here with Matt Boaz, assistant professor of law at the University of Kentucky and Lawfare senior editors Anna Bower and Scott R. Anderson.

Anna Bower: He did have some very strong words for counsel who were representing DOJ during this hearing, saying to them, you're gonna have to at some point produce some of these people. You're going to have to produce them, and I'm gonna ask them under oath to talk about in what way they were trying to preserve the statutory functions of the organization.

Benjamin Wittes: In a live recording on March 14, we talked about litigation over actions from the Trump administration, the detention of lawful permanent resident Mahmoud Khalil, the birthright citizenship order, the foreign assistance freeze, and so much more.

Scott R. Anderson: So, long story short, it's going to be a lot more litigation around this issue, but at least people who are owed money before Feb. 13 do look like they're going to get paid.

[Main podcast]

Benjamin Wittes: Hey folks, welcome to this week's “Trials of the Trump Administration,” coming to you on Friday afternoon at 4 o'clock p.m. Eastern Time.

I'm Benjamin Wittes, editor in chief of Lawfare, here with Scott R. Anderson and Anna Bower, both senior editors, and Matthew Boaz of the University of Kentucky School of Law, who is our special guest today, expert on all things immigration-related, and we have had a lot of immigration action in litigation over the last few weeks and we have—last week we skated over all of it because well, we knew we were going to have Matthew Boaz here this week.

No, that's not true, we actually didn't know that, but we skated over it and we decided this week we were going to do some focus on immigration related stuff. So, Matthew, welcome to the show.

Matthew Boaz: Thank you very much for having me. Yeah.

Benjamin Wittes: All right, so let's start with what is perhaps the most prominent this week of the immigration cases, which is the Mahmoud Khalil case which has now been joined, we think, by another case of a lawful permanent resident who has been either detained or slated for deportation.

Let's just start with Mahmoud Khalil. What do we know about that case and where it is?

Matthew Boaz: Absolutely. Regarding Mr. Khalil's case, we have been following it now for the past week since last Saturday when he was detained by ICE inside his apartment complex.

Right now, the primary issue that's going on is a habeas petition that's been filed in the Southern District of New York seeking both his release on bail and seeking to prevent his removal and importantly seeking to retain jurisdiction within well, I'm just going to broadly call the Second Circuit court of Appeals jurisprudence, which is relevant for, for his case.

As of now, the most important update is that there has been a scheduling order issued by the judge; there was a joint letter submitted earlier or yesterday by both parties proposing alternative briefing schedules. As of now the, the schedules are that there will be a motion for bail that's submitted tonight by Mr. Khalil's attorneys and that motion in opposition of that would be filed by Monday at midnight.

The following issues regarding his potential transfer—or I'm sorry, regarding the potential transfer or dismissal—the, the issue of that will be submitted by Wednesday, March 19 or potentially sooner depending on–. Oh, I'm sorry. Yes, I misspoke that both motions would be submitted for bail tonight. The secondary issue of whether the jurisdiction can be transferred to Louisiana where he's currently being held that issue, those filings will need to be submitted next Wednesday.

So that's primarily what's, what's going on right now in the actual case regarding the litigation. His attorneys are really trying hard to ensure that he ideally could be released on bail under a case called Mapp v. Reno, which is a 2001 case regarding whether habeas petitions are permissible in the case of immigration proceedings in general.

And in Khalil's case, the important thing to know is that there is a procedure for individuals who are put into removal proceedings. The first step of that procedure typically occurs during what's called a master calendar hearing, in which the notice to appear is addressed by the, the individual who is potentially being charged for removal. So in this case, there's a couple of weeks for Mr. Khalil's attorneys to respond to that, but they can also submit a motion for bond.

Given the specific part of the statute that he's being detained under, there's no mandatory detention that assigns to that. So he would be eligible for bond. Others who have been held and this is the most recent case is 20 years ago were denied bond, and that was found to be permissible under review but there is some indication that he could potentially receive bond.

I have not been able to find specific information about the immigration judges at the detention center where he's being held in central Louisiana, though from my own experience and the experience of my colleagues, traditionally, the judges in that particular region I think tend to be less inclined to grant bond or more inclined to grant a bond of a substantial sum.

So that is procedurally what would go on, but right now his attorneys are seeking a habeas petition that would release him on bail separately. It's, it's unclear, you know, how they're going to articulate that, that argument, but they did at least get the opportunity to submit that motion. It wasn't refused outright, so I think that that's a potential sign that the district judge is open to that argument.

I'm not sure how the motion to transfer and dismiss, which was submitted by the U.S. Attorney's office, meaning that jurisdiction would, would be where he was held at the time that the original habeas was filed, or better where he's being held right now. In the initial habeas filing, it was filed two hours—there's some dispute over when exactly this happened—but allegedly at approximately 2 a.m., he was transferred from New York state early Sunday morning to New Jersey.

Benjamin Wittes: Although I will point out that the hour 2 a.m. to 3 a.m. Sunday morning actually did not take place because that is the hour that disappeared because of the move to daylight savings time. So, the government's brief, one way or another, is inaccurate on that point.

Matthew Boaz: And that's a really good point, and it's interesting you mention that because the government did submit a revised affidavit on behalf of the arresting officer indicating where the actual interaction with Mr. Khalil took place, whether it was inside or outside his apartment complex. So, you would think that they would be, you know, focused on those details.

But regardless, there seems to be some indication that he was potentially transferred a few hours before the habeas petition was filed early on Sunday. That could potentially mean that jurisdiction would be where he was held at the time or more likely where he's being held now. And that's what the, the U.S. Attorney's Office is trying to do is to move jurisdiction there. The reason that's important is because the Second Circuit actually has jurisprudence in favor of First Amendment protections, which is a little bit far afield from what we're talking about now. But we, we can get into that a little bit later.

Benjamin Wittes: Well, let's actually get into it now because there are a million things that are on the table in this case, and they run from, was there something abusive about the way he was detained, which my impression, you know, it's never pleasant when ICE shows up to detain you, but there was nothing all that unusual about the manner of his detention.

The key thing here, it seems to me, is that this is an LPR whose status was revoked on the basis of concededly First Amendment protected activity. And I don't I don't know of many of those cases. I want to say since the LA 8 case in the 80s and 90s, you know, that's a pretty unusual thing that, you know, goes back to some of the McCarthy era statutes.

And on the other hand, there's this jurisdiction evasion question. And so if you had to make a decision tree for the courts, like what order do you have to decide what questions in order to decide can the government actually deport this guy?

Matthew Boaz: So I, I think the first question is whether they actually have the jurisdiction to, to hear the matter. Mapp v. Reno does offer some potential insight for exceptional circumstances; I think that this could potentially fall into the exceptional circumstances category.

Regarding, I, I mean, I think there have been some allegations regarding the evasion of jurisdiction. ICE, unfortunately, does this quite frequently, moves people around without notice. They're not required to provide notice. But they do move individuals from detention center to detention facility, or from facility to facility quite frequently. Usually this is somewhat related to capacity in those facilities—very clearly that's not what is going on here.  So I think there is the possible argument to be made that they did do this to evade the Second Circuit's jurisdiction, Second Circuit's jurisdiction on this matter. And then they moved him to a facility in Louisiana where he would be far away.

There's some allegations in the motion that was filed, the habeas petition that was filed by his attorney, indicating that this was done so for punitive purposes, you know, moving him over a thousand miles away from his family. It's difficult to argue that one way or another, but it is a very common pattern that ICE engages in. to move individuals from facility to facility.

So if they make a determination that they, this is exceptional circumstances they may, you know, address the, the habeas petition. If they don't, then it's going to come down to a jurisdictional argument. I think it's, that's going to be really tricky. It's going to depend a lot on the facts and the judge's interpretation of the facts, whether, you know, same day is sufficient or where he was physically being held, what evidence that can be relied on to make that determination.

Like you said, with the time change after that, I, I think it's pretty challenging if he was not in New York, it's going to be a difficult argument in general that, that this judge has jurisdiction to make a decision.

Benjamin Wittes: Alright. Are there other things we should be aware of in this case before we move on?

Matthew Boaz: Yeah, two things. So the first is that you mentioned that there is some indication that other students at Columbia and other individuals in similar circumstances have been detained, or in some cases sought out, unclear if they've been detained. The news is sort of slowly rolling in.

But related to that, the second issue that's worth mentioning is that on yesterday —sorry days are flying by—yesterday Secretary Rubio posted a notice of federal regulation indicating that a wide gamut of conduct is now considered to be part of foreign policy. Doing this obviously unilaterally evades the, the rulemaking process that the APA requires.

But I think that the goal here is essentially twofold, one, to indicate that any sort of rulemaking regarding or interpretation of foreign policy is not something that would require wider scrutiny or would be subjected to the typical rulemaking procedures under the APA.

And second is to basically include conduct that we might not consider to be foreign policy to fit under the foreign policy umbrella so that he can more widely target individuals for removal under this authority.  As you mentioned, this is a very rare authority to target individuals from. The administration and others have been saying this is a, an individual who supports Hamas, a terrorist organization.

There is a very clear and capacious part of the statute statutory framework that would permit them to put him into removal proceedings based on that. He would have been held in mandatory detention. The fact that he's not being prosecuted under that part of the statute indicates to me that they don't have sufficient evidence to, to make that, that claim successfully in front of an immigration judge.

However, I, I am concerned that the last case that we have information on was 1996 with a Mexican government official and it was a much more transparent process—we're removing this person because the Mexican government wants to prosecute him, we want to support the Mexican judiciary and therefore it's our foreign policy to, to try to move away from, to support their judicial system and make sure that it is a non-corrupt system. This is far afield of that, and I think we're very quickly going to bump up against the First Amendment protections that other commentators have, have highlighted.

Benjamin Wittes: And assuming that that can't be done in the context of this case for jurisdictional reasons, I assume the case gets refiled in Louisiana, right?

Matthew Boaz: I think it gets refiled in Louisiana. Whether that habeas petition is successful there or not I'm less bullish on because I don't know exactly what the form of relief would be there. At that point, if he's being held, there's an administrative process that he can go through. That process is going to last several months if not longer. If he's released on detention, it could last several years regarded, you know, if all the appeals, etc.

So I, I think that it's likely it would be transferred there, but I'm not sure if the form, same forms of relief would apply. It's more likely that we would see the process play out. My guess is that a subsequent suit regarding the constitutional violations, First Amendment protections would then be filed that, that would then, you know, percolate up through the courts.

Benjamin Wittes: Alright. So, you mentioned the other Columbia students. What do we know about the metastasis of this? Do we know how many other people are now slated for removal or in some kind of removal proceedings, or is it just vapor at this point?

Matthew Boaz: At the risk of speculating—and I, I'm basing this on the information that I have read—is that there have been two individuals, one who did have a visa and overstayed her visa. So that's separate. Anybody-

Benjamin Wittes: That's a much easier case.

Matthew Boaz: Yeah. You're immediately removable. There's not the same process. And she voluntarily accepted a removal order or voluntarily departed. That's unclear. But Kristi Noem has posted on Twitter or some social media account that that occurred in a video of her exiting the jet bridge into an airplane, which is strange.

But the second one is an individual who was alleged to have participated in inciting violence—unclear what violence—who is an Indian student. Unclear what his status was as well, but he allegedly also chose to, to return to his home country rather than go through the process. Those are the two that I'm aware of and again this is from looking 45 minutes ago. So things may have changed in the interim.

It is clear that both Secretary Rubio and the president have indicated that this is the beginning of other targeting that is going to, to occur, right?

Benjamin Wittes: All right. So another group that is being targeted is TPS protectees from various countries, a couple of pieces of litigation related to that. What can you tell us?

Matthew Boaz: So the, I wanted to highlight, there are some issues going on with, with TPS, but the primary litigation that I think has been followed in this case is, is refugee-related so, so adjacent, but, but slightly different.

So the two cases that we've been following are the U.S. Conference of Catholic Bishops v. the U.S. Department of State. That's a case that is before the District of Columbia District Court in which a preliminary injunction was—or sorry, a preliminary injunction was not issued—and that appeal failed. And then the second is a case called Pacito v. President Trump, which was in the Western District of Washington, and is now on appeal before the Ninth Circuit.

The, the two cases are related, but separate. The U.S. Conference of Catholic Bishops is about funding that was owed regarding nearly 7,000 refugees had already entered into the United States, a very similar circumstance to the USAID case, right, prior bills and debts that the federal government had promised they would pay and have not.

That case looks like it's being held up under the Tucker Act, which requires that those types of contractual disputes are resolved in the U.S. Court of Federal Claims. That's where it is right now; it is on appeal in, in the D.C. Court of Appeals, but there's no stay to that, so it's unlikely that those organizations will be compensated in the interim for what they're owed.

The second case, the Pacito v. President Trump case in the Western District of Washington, that was the case regarding the suspension of refugee entries into the United States. A really interesting decision there by the district court judge, and what she did is issue a preliminary injunction requiring that the federal government restart refugee entry under the program and allocated number.

So, essentially, the Refugee Act of 1980 has a specific process in which the, the president and other officials in the executive agency, or the executive, are supposed to consult with and, and, and speak with members of Congress and other parts of the federal government to make a determination about who and how many individuals will enter under the refugee program each year. The, the judge there was struck by the evasion of that protocol through the issuance of an executive order that doesn't seem to contemplate its obligations under the 1980 Refugee Act.

I think what is—so, so that was, that occurred at the very end of, February early, I think the issue was the decision was issued on Feb. 28—what is maybe not surprising but we're seeing this in other litigation is that the federal government has, you know, been required to submit updates to the federal court about whether it's complying with the order that the federal judge issued, and it has by all accounts not done anything to comply with that preliminary injunction.

As you may recall, after that preliminary injunction was issued, a few days thereafter, the federal government Secretary Rubio, yes, terminated all contracts with the U.S. refugee agencies who provided support to individuals who are entering through the refugee program, I think as a way to circumvent the requirement here. The federal judge, or the district court judge, did not agree with, with that determination and has still required the preliminary injunction be followed.

The most recent assertion on March 10 of this week was that the federal government quote did not know how long it would take for them to get the program up and running because it's been so debilitated by the shutdown over the past month. So, you know, very, again, similar to the USAID litigation where, when the funding dries up, you know, it's month to month and these agencies have to furlough or lay off employees.

And when the contract, when the contracts between the federal government and the U.S. agency providers for refugee services are eliminated, it really does hamper their ability to get things up and running again. We saw this during the, the end of the Trump administration into the Biden administration. It took them a year of good faith efforts to, to get the refugee program up and running again.

Benjamin Wittes: All right. We also have movement sort of in the the, the birthright citizenship cases are finally reaching the Supreme Court. These ones, or sort of, what's going on with those?

Matthew Boaz: Yes. So, yesterday, the federal government filed an emergency request to consider the injunctions, preliminary injunctions that had been issued, preliminary injunction at the First Circuit Court of Appeals that have been issued. There are identical cases, one in the Ninth Circuit and one in the Fourth Circuit but in each of those, a preliminary injunction has been issued preventing the federal government from enforcing the executive order that would strip birthright citizenship from any individual born after a certain date in, I believe it was in February who was not born to at least one legal permanent resident or U.S. citizen parent in the United States.

The, the issue here, I think, is sort of a very narrow one, which is the, the, the government is asking that the Supreme Court, that they either stay the preliminary injunction completely—which I think is a long shot and unlikely to succeed that would overturn the preliminary injunction for the First, First Circuit; two, that they limit the preliminary injunction just to the parties that are listed as petitioners in the First Circuit case; or alternatively that they limit the preliminary injunction to the states that are covered by those, the First, Fourth, and Ninth Circuit Courts of Appeal.

It’s unclear you know, where the, the Supreme Court is going to end up on this. There have been at least two justices, Alito and Thomas, who have indicated that they don't like nationwide injunctions. Each of the, the decisions here has been a nationwide injunction, though they did sign on to plenty of those that occurred during the Biden administration. So unclear where they might fare in this.

The, the counterargument essentially here is that this, the facts are identical across the board here. This is not a factually complex case. And that if they enjoin this preliminary injunction or limit it in some way that it's likely that other petitioners will file in various jurisdictions and that we would end up with a pretty clogged court system again litigating around the singular issue.

Benjamin Wittes: I mean, it's a kind of a weird—I have some sympathy for the complaints against nationwide injunctions, but it's hard to argue that there should be birthright citizenship in the Ninth Circuit, but not in the Fifth, right? I mean, like, if there's ever a situation where the—like, the Constitution can't mean different things depending on where you are.

Matthew Boaz: Yes, and based on the, you know, the very limited merits that have been presented, the arguments are identical across the board, right? Each of the judges is skeptical for the same reason. It's not like you've got, you know, alternative interpretations of the law here.

But yes, regarding the preliminary injunction, there's not necessarily specific ideological alignment on whether they should occur or not. But I think it would be potentially unexpected and very disruptive if it were to occur here that the Supreme Court either issued a stay on the preliminary injunction or limited it in some way.

Benjamin Wittes: Alright, one more broad area, which is Guantanamo, which we don't usually talk about in the immigration context, or at least not since the early 90s but it's back. What's going on down there?

Matthew Boaz: Yes, so this is a case Las Americas Immigrant Center v. Noem, but this is, the primary petitioner here is, is being represented by the ACLU. There is a current hearing right now on whether a preliminary injunction should be issued. It started at 2 p.m. before Judge Carl Nichols in the District Court in the District of Columbia.

It's cabined as a habeas application requesting two things: essentially the, the release, or at this point potential return of individuals who were being held in Guantanamo and secondarily prohibition against transfer to Guantanamo of other individuals.

So this was filed after the first cohort—177, primarily individuals from Venezuela—were transferred there in late February. Those individuals were quickly taken from there to Honduras and then eventually to Venezuela. They spent a very brief period of time in Guantanamo, but during that time were subjected to I think pretty harsh conditions. We have more information about that because of a second cohort that arrived which was 40 individuals who were strip searched and several of, of whom attempted self harm. So I, I, I think a pretty horrendous situation there.

Perhaps not surprisingly or, but unexpectedly, the, the federal government removed all individuals from Guantanamo yesterday and transferred them to central or southern Louisiana allegedly to, to an air base that is primarily military and charter flights. We don't have information about where they're being held right now, but they are not in Guantanamo.

I'm not sure if this is part of the litigation—I'd be curious to hear, you know, I know you all have someone who's at the hearing right now—to know what representations the federal government is making that the U.S. attorneys are making about whether somebody is, is going to be held there in the future. As of now, all of the news sources that I've read are reporting that there are no future scheduled flights for deportation into Guantanamo. So this may end up potentially being a moot point. But it is unclear.

The key issues that I wanted to highlight here regarding Guantanamo that, that the ACLU was claiming is essentially that the conditions were, were obviously horrible, that the individuals being held there had potential forms of relief that they weren't able to access because they could not get in contact with their attorneys, they were prohibited from calling attorneys. That was supposedly remedied at some point.

But the main issue here is the idea that they were being held in a particularly punitive place, right? Guantanamo is, I think, largely about optics in this case, that it's a pretty horrible place to be. In the affidavits that were submitted in the declarations, there's a lot of description about the abuses that individuals suffered there, or at least what they experienced there is not consistent with the regulations regarding immigration detention, and that that might have been some reason underlying why they were transferred out of there.

If future individuals are transferred there, I think there is a potential argument that this is a punitive approach. And if it is a punitive detention, as opposed to just administrative, all immigration enforcement is supposed to be administrative. But if they're being taken there as a form of punishment, that the Fourth, Fifth, and Sixth Amendment rights to due process would apply, and we would be in a completely different setting.

So I'll be curious to know what arguments are brought forward today now that the underlying factual situation has changed pretty drastically? But as of now, there's no indication that there will be future detainees at Guantanamo.

Benjamin Wittes: Alright. Let us move on to the overtly punitive which is to say the administration's approach to law firms, where they don't even make a pretense that it's administrative.

Anna, you were at Judge Howell's hearing. on Perkins Coie, the law firm that Donald Trump has forbidden anybody from doing business with the federal government who may be a client of. How did that hearing go? And did they abjectly apologize for the Steele dossier and beg forgiveness?

Anna Bower: So no, they did not. Perkins Coie, the well known law firm is represented by Williams and Connolly, another quite well known DC based firm, although I believe Williams and Connolly has some offices in in various cities. And I gotta say the lawyer who represented Perkins Coie not only did fantastic job advocating for Perkins Coie, but also has the most incredible name of any attorney that I think I've ever heard, Dane Butwinkas, which Judge Howell at the start of the hearing made sure to you know, make sure that that is how actually his name is pronounced, and it is indeed.

Benjamin Wittes: Could she say it without laughing?

Anna Bower:  She, she gave a kind of like giggle almost kind of, sound when she asked about it and, and he laughed because I'm sure that he's gotten this a number of times.

Benjamin Wittes: Yeah, because he's never had any jokes about his name.

Anna Bower: Yeah, yeah.

Benjamin Wittes: That didn't happen in middle school at all.

Anna Bower: Right, so that's who was representing Perkins Coie. And then on the other side for DOJ, another example of a kind of, strange representation from DOJ showing up. We've seen previously in the Adams, Eric Adams case, Emil Bove showed up while he was the acting deputy attorney general to argue on behalf of DOJ.

In the Perkins Coie TRO hearing before Judge Howell, we saw Chad Mizelle, who is the chief of staff of Pam Bondi, showed up to personally argue this motion for a TRO. So just something to note. Yeah.

Benjamin Wittes: So let me ask you about that. Do you—so sometimes when a relatively senior political official shows up, one understands it as a statement of importance that the administration attaches to the motion. Sometimes, by contrast, it reflects the fact that there's no career official who will put their name on the relevant brief and who will show up and argue. Which do you think is going on here, or is it a bit of both?

Anna Bower: It could be a combination of both, and then also additionally, the fact that as I heard in another hearing a week ago, some divisions of DOJ, including the federal programs branch have been, you know—I believe the federal programs branch has been cut in half. It's not clear if that is from people leaving or from you know people being fired or a combination of both, but it could be a combination of the three, you know. There's a lack of staffing; the administration thinks that this is important; and then also maybe there's not a whole lot of lawyers in the department who are willing to stand up and defend this executive order that explicitly targets a law firm for their, you know, representation of a, of a certain client.

I will say, though, however, unlike Emil Bove, who had no one sitting at the table with him in SDNY, there, there were a number of other attorneys from DOJ who, who were sitting at the counsel’s table for DOJ.

Benjamin Wittes: And did you happen to know, did you know enough of their faces to know if they were career or political?

Anna Bower: So I did not look into their background. That's something that certainly I probably should check on, but I it's, it's, I, I have not, that's not something that I’ve looked into.

But so we have this hearing before Judge Howell in in this particular motion for a temporary restraining order. The executive order has like a number of parts, right? One of them is revoking security clearances for people who work at Perkins Coie, but then other parts, restrict, contracting with Perkins Coie and you know letting people who work at Perkins Coie into federal buildings. So the, the part about security clearances was not challenged, but some of these other sections of the executive order were.

And I, I mean, you know, Judge Howell had a lot of questions for the plaintiffs, but she was particularly, you know, came down quite hard on DOJ when it was Mizelle's turn at the lectern because Mizelle's argument was basically that the president has the power, when a company or an individual is not acting in the national interest to, you know, take certain steps like this that that would restrict, you know, their ability to do business or to, you know, act in, in various ways.

And Judge Howell had questions about is this a bill of attainder, an unconstitutional act that essentially retroactively punishes an individual or or a group? She had questions about you know, to what extent this the president's judgment that someone is not acting in the nation's interest could be applied in other circumstances. She was very concerned about what the implications would be in other circumstances, how it would affect various clients at Perkins Coie.

For example, the section that, that bars entrance into federal buildings—I mean just to underscore how what this could do, she had to ask the Perkins Coie attorney or excuse me the Williams and Connolly attorney Who is representing Perkins Coie if he had any trouble getting into the building that day because we were sitting there in a federal building, the courthouse.

Benjamin Wittes: The one right in back of you, in fact.

Anna Bower: Right behind me, the E. Barrett Prettyman courthouse. And, and so it really, you know, she, she was clearly very concerned. It seemed very clear in her questioning of Mizelle that, that, that she was going in, in a certain direction. There were a few questions that she had, though, about whether or not there was a sufficient showing of harm or injury for her to be able to implement the TRO, but ultimately, she, she did at the end of this hearing after, you know, an hour and a half.

She clearly already had this order prepared pretty much, and then read from the bench for like 40 minutes, I think it was, and, and really gave a kind of very a scorching order with respect to—she was, she was just not very happy with the fact that this was something that was explicitly targeting a legal, the legal community, the legal, legal industry. And she even went so far as to say to Mr. Butswinkas. I'm sorry, I can't help but laugh–

Benjamin Wittes: No, no, there's no way to say that without laughing.

Anna Bower: She even went so far as to say to him you know, I, I commend you for taking this case because there are firms that would not do it and, and attorneys who would not do it and you know. Basically thank you for taking this case because you know, there's been some reporting outside of, of this hearing and outside of the four corners of the case that the, there are other firms that, you know, were hesitant to take this on because of the fear of retribution.

Benjamin Wittes: Right. So we have a correction in the, in the chat. Apparently the Buts in Butswinkas is plural. It is Butswinkas, not Butwinkas.

Anna Bower: Excuse me.I should have, you know, it sounded like he said Butwinkas, but yeah, Butswinkas. Okay. Thank you.

Benjamin Wittes: I don't know. Yeah, I'm just I'm just channeling the chat here I have not looked up the correct pronunciation.

Anna Bower: It does indeed have an S in there though. So that it, it makes sense. There are two S's in Butswinkas. So thank you, chat.

Benjamin Wittes: Alright. Scott, whose name you actually can pronounce without giggling, Scott R. Anderson, we've also had some movement in the whole project of dismantling the entire foreign assistance apparatus litigations. Bring us up to speed.

Scott R. Anderson: It has been a big week for the foreign assistance community in that some people are actually getting paid or at least appear to be maybe on track to getting paid. Some people have gotten paid. Others may be on track to getting paid.

But a couple of notable developments this week. In the lead case, that's AIDS Vaccine Advocacy Coalition v. Department of State—which joined with Global Health Council v. Department of State into one matter—we saw Judge Ali issue the preliminary injunction we discussed last week and have been following for the last few weeks on Monday. In part, it didn't quite give the plaintiffs everything they wanted, the plaintiffs being a number of foreign assistance recipients implementing partners, as well as a group representing kind of industry groups representing a variety of named and unnamed other groups.

And what it essentially said is that, A, the TRO that Judge Ali had issued that was more or less disregarded by the government—appealed to the Supreme Court left in place by the Supreme Court on a 5-4 vote—essentially is still going to be enforced so that everybody who is entitled to money or attempted to do credit drawdowns prior to Feb. 13 should be entitled to do so if they were blocked on account of the president's order to pause all foreign assistance.

But Judge Ali stopped short before issuing the other remedy that the different groups wanted, which was essentially that everything go back to the status quo ante and that they be provided the funds they would otherwise have been owed under the various agreements and contracts that were cancelled by the Trump administration during this review after the Feb. 13 TRO was issued.

Essentially this was done more or less on a procedural grounds or a more formalist sort of concern; Judge Ali essentially said, look, though in the complaint, you're specifically arguing about the pause and things that flow from the pause, that's the only administrative action you've actually tackled. These separate cancellations—A, you just don't deal within the complaint and you haven't actually made any specific arguments about them, and B, are going to be sort of case specific because the ability to cancel different sorts of contracts is something that's within the government's authority in some cases but may not be in other cases and we're going to have to delve into that.

So he essentially invited—at least that's how I read it in relative footnotes— plaintiffs to pursue follow on litigation. I don't know whether it would be an amendment, amended complaint in this matter or through separate matters. But essentially say, if you have complaint reasons why you think the cancellation was unlawful, you should pursue them and present them, but they're not gonna be part of this matter. And he suggested he could see reasons why a couple of them would be highly problematic and some of the government's conduct was problematic here but he wasn't going to reach the issue in this particular case.

He then got to the constitutional issue the impoundments issue, which was very interesting where he essentially said look you are right plaintiffs the government cannot just choose not to spend this money that the government, that Congress has allocated for, for these foreign assistance purposes. The government has to spend it.

But he was not ready to direct the government to spend it the way the Biden administration had essentially planned to, or that the State Department had planned to prior to Jan. 20. He says you have to spend it in within the scope. provided by Congress. And that you have a certain time frame to do it.

I believe the briefing suggested essentially the funds would expire in force by in some time in September. Apportionment windows would be smaller than that set by OMB. Although there's some ways to flex that. It's very complicated and it varies a little bit, I believe different pockets of funds to pockets of funds.

But the long and short of it is essentially the government now is in the position where it has to spend this money. It has to figure out where to spend this money in line with the purposes decided by Congress under Judge Ali’s order, but doesn't necessarily have to just give it to the plaintiffs as originally planned prior to the president's executive order. Notably the plaintiffs.

Benjamin Wittes: People, this is your chance. Set up the MAGA, MAGA spending money grant receiving organization and just submit proposals for you know, democracy programming, you know, not DEI programming, right—-all the things that there are terminated grants on just, you know, submit the proposals now because they've got to spend the money and it's like, it's billions of dollars. So just get in there, set up your, your relief organization and buy Bitcoin with it.

Scott R. Anderson: It does worry one when someone is under a lot of pressure to spend a lot of money that they don't want to spend, how exactly it's going to get done.

Notably, this did come up at the hearing last week where when the judge pushed the plaintiffs on this issue, he basically asked the plaintiffs, they have to spend this money, but why do they have to spend it on you?

And the plaintiffs said, essentially, look, the way this industry is structured, what few competitors we have, either everyone is represented by our giant pool of plaintiffs here that could plausibly do most of this work, and what few groups aren't represented here, they're not here because they've already gone bankrupt because of the funding cutoff.

So there really is no choice about where they have to spend this. He didn't buy that as a legal argument as something he was going to order the government. But now we are going to see that tested by the marketplace.

Benjamin Wittes: I mean, it might be empirically true, even if it's not legally cognizable.

Scott R. Anderson: Exactly. That, that certainly may be true. And you know, look, the impoundments, the purposes by which the president is obligated to spend these things—probably going to get a lot of discretion on that, but it's not going to be completely devoid of any sort of credibility.

So I don't think, you know, the president's going to be able to start writing checks to friends and organizations and things like that, that have no correlation or credibility, credible relationship to the purposes that Congress has assigned them.

Benjamin Wittes: I'm going to play you back the audio of you saying that. Famous last words. Famous last words. When it all goes to, you know, Liberty University Humanitarian Relief Fund.

Scott R. Anderson: It's entirely possible, and I fully suspect we're not gonna see all this money go exactly where it was intended to do, but remember, this is in dialogue with that whole universe of claims that the judge is inviting where there's a big question as to whether the government actually could cancel a lot of these contracts.

So we're gonna have to see that parallel litigation, litigation, which again, under this matter, but may also just be like several dozen collateral matters that now emerged being fighting out individual contract, individual programs. I don't know how that's going to be structured or how it's going to be approached, and then that's going to be an interface because. the more of those the government loses or decides to concede on, the smaller the pool of money it has to spend to, on these other purposes.

So, long story short, it's going to be a lot more litigation around these issues. But, at least people who are owed money before Feb. 13 do look like they're going to get paid.

Notably, there is a joint status report due today. It has not, as of me repeat, repeatedly hitting refresh on the Courtlistener and on the docket. I have not seen it pop up yet, so presumably it is still coming today. So if you're really interested, check out the docket, see if it comes up. Hopefully we'll get it, you know, by the end of the day or sometime tonight.

But there are no signs yet the government's going to appeal, which they've already done once in this case and they decided on pretty quickly. So at least they're not you know, immediately racing the D.C. Circuit or the Supreme Court on this, again, pretty split the baby sort of order, at least insofar as it doesn't reach the, the subsequent cancellations. So maybe they're actually going to make some effort to pay under this at this point, especially given the Supreme Court didn't bite last time they went up there.

Related matter, National Endowment for Democracy paints possibly the best, happiest story we've seen come out of this from the perspective of people trying to get paid for their work. They filed a complaint on March 9 or 8, I believe. No, it was late last week, so it'd be March 6 or 7. They were paid as of Monday. A substantial portion of the money owed to them. And the government said, in fact, we are in the process of obligating the other big chunk of money. As of earlier this week, both parties have voluntarily put the motion in abeyance the plaintiffs have brought forward.

Notably, the National Endowment for Democracy is just in a different position than other funding recipients, most of them, because the statutory language obligating money be directed to them is so much more explicit and express and specific to them in a way that is just not the case for most funding recipients. That's part of the reason why this is such a different outcome, but it looks currently different.

Benjamin Wittes: It's not a grant, it's an actual appropriation and there's no element of executive discretion. And again, every time we talk about this case, full disclosure: my wife runs one of the four children organizations to the National Endowment of Democracy, the National Democratic Institute and has a direct interest therefore in this case.

Scott R. Anderson: Absolutely. And this is a case where it looks like the government is on track to paying this stuff. Again, I think there is a follow on report due early next week that's supposed to report, you know, if they're on track to do the actual obligation of the other funds, and presumably right now it's under a consensual abeyance that the plaintiffs can remove if there's any kind of shenanigans that don’t get paid.

We saw another wave of litigation actually across three different matters including one new one. The new one is American Oversight v. USAID. We saw a similar set of legal actions in American Federation of Government Employees v. Trump and Private Services Personal Services Contractors Association v. Trump to relate litigations, which I'll touch on in a minute.

All three were centered around the same item, which is a report that a bunch of documents in the Ronald Reagan building or USAID used to be housed were being destroyed or have been directed to be destroyed, including a bunch of classified records and personnel records. We saw American Oversight sue to stop the destruction of these records, and the plaintiffs and the other groups also seek, also seek TROs on the allegation that the records could be relevant to their underlying claims, both of which are employment related.

Essentially what ended up happening in all of these cases that the government came forward and said, this has been misconstrued. These governments are all redundant and duplicates that are in hard copy at this facility that's being shut down and handed over CBP. Nobody's permanently destroying these records as records. These are permanent staff employees, properly trained, who are here to dispose of the hard copies so that we can continue to vacate the office. Everything is already stored in a redundant online systems or in other places.

Regardless, they have confirmed that they are not going to destroy any additional records at the Ronald Reagan building until they get essentially signed off by the courts and by the different parties. So right now, by virtue of the consent, most of the parties have withheld their or withdrawn their TRO on the understanding the government's going to hold off on destroying any of those records, at least for the time being. So there appears to be a detente around this particular set of records, which got a lot of media attention earlier today, earlier this week.

Those two matters—I'll mention briefly just because we haven't talked about them the last week or two, but they are still ongoing AFG, both before Judge Carl Nichols—AFG, you may recall was the motion that initially got a TRO that stopped a number of USAIDs to be from being fired. Judge Nichols ultimately though, ended that TRO and denied the preliminary injunction which allowed. the, the removal of a lot of—-or putting on administrative leave, I should say—of a number of USAID direct hire personnel.

Personal Services Contractor Association is kind of a follow on litigation filed later, happened to be for Judge Nichols, even though it's a separate matter, about personal services contractors, which is a different sort of contractual arrangement that was highly used in USAID. In that case, we also, in that case, we saw a TRO denied earlier this week on March 14, essentially saying on similar grounds there's just no basis in both cases; Nichols essentially said, look, this is essentially an employment dispute. It's supposed to go through separate procedures for a much more limited remedy than me directing the government to keep you employed, so you're going to have to pursue that separate route.

Notably, however at least in the AFGE litigation, and I'm not sure where the PSCA litigation is headed. It just happened yesterday, so we're waiting to see— earlier today, I guess, we're waiting to see. In AFGE case, there is still judgment litigation going on about the destruction of USAID. We now have cross motions of a summary judgment on the part of the plaintiffs and a motion to dismiss not yet filed, but stated intent to be filed on the part of the government.

And so the court just essentially set briefing on that on a slightly expedited basis through May 5. So essentially shortly after May 5 which is when the last brief is due, we'll presumably have a hearing and then we're going to get a resolution of that matter with finality and we'll find out whether it gets appealed from there. And that is on, again, the kind of deconstruction of USAID in violation of its statutory status under Congress and assorted related measures. The last matter we we have here, which we mentioned last week.

Benjamin Wittes: Wait, this needs a better introduction than this though, because, because in the wild and wooly litigations over Trump administration executive action.

First of all, real de facto Secretary of State Pete Marocco deserves a special pride of place. But secondly, this litigation, which involves the African Development Bank, deserves a special place.

So let's pause a moment and, you know, before we get into the procedural posture of the litigation. Tell us the facts.

Scott R. Anderson: So we went out this at length last week, but for those who may not have tuned in for it, it is a pretty extraordinary case.

The African Development Bank is a separately established in statute and by matter of policy and regulations development institution within the U.S. government, but managed separately, managed by kind of a board of advisors. It's relatively small, has a small office separate from most U.S. government offices.

We saw in the last week pursuant to President Trump's executive order, directing a bunch of kind of these small independent entities in the U.S. government be brought down to their statutory minimum. Representatives from DOGE and Peter Marocco—the acting director for foreign assistance at the State Department, who've been driving a lot of these foreign assistance efforts— showed up at the offices to essentially demand access.

They were denied access by security personnel at the direction of Mr. Brehm, who's the head of the organization currently, has been a long standing member—actually, he was appointed originally to his involvement in the group by George W. Bush way back in the day, the former kind of Republican fundraiser in the Midwest and a person who's been kind of kept around on the board since then and has risen to this leadership role. He denied them access. They then from the street side appeared to notify all the board members that they were being removed. They were replaced by Peter Marocco.

Benjamin Wittes: And you've got to imagine him walking down the street with his phone like you're fired. You're fired. You're fired. I'm taking over here

Scott R. Anderson: We know it was done by email kind of because something that came out in litigation is that they, the government filed the emails that purported to remove the board members. However, it's quickly pointed out by the other side that actually these email addresses have no correlation to the actual email addresses to several of the board members. They were sent to .org, not .gov email addresses, and they misspelled several of the people's names. So there were no actual notices of removal for the board members ever installed or ever actually moved forward as part of this effort.

But nonetheless Mr. Marocco essentially said, I am the board, I am the president now, I am the captain of this ship. And has directed access to the records and fired a lot of the personnel more or less from the street outside, from his phone, at least according to the very detailed complaint filed in this case, which is quite a read.

Benjamin Wittes: Again, read the complaint. It's, it's, it's, there just aren't that many times you get to read a complaint like this one.

Scott R. Anderson: It's pretty extraordinary. It's got a lot of press pickup, which is not a coincidence. I think they knew what they were doing. They filed such a detailed complaint.

But we also saw a fair amount of drama in the courtroom and Anna was actually there. So I'm gonna hand it over to her. Anna, talk to us about the hearing before Judge Leon, a judge not unfamiliar with drama himself, and talk to us a little bit about what went down and the disposition of this case that came out of it.

Anna Bower: Yeah, so, Judge Leon initially granted an administrative stay for a few days, and then this was the TRO hearing on the question of whether the Trump administration could be blocked from removing Mr.—is it, it's Brehm is what I'm hearing you guys say, or Brehm. I've been saying Brehm.

Scott R. Anderson: I've been saying Brehm, but I have not heard it pronounced by anyone else.

Benjamin Wittes: But also you're leaving out the S in it.

Anna Bower: Alright. Well, Mr. Brehm, that's what we'll go with. Pronunciation experts in the chat can correct me if I'm wrong or if there's an S that I'm missing.

But during this hearing, the question was whether he could be blocked from being removed, and Judge Leon, it seemed to me, came in knowing what he was going to do based on the briefs. The question that he was very focused on was irreparable harm, which is one of the factors that you have to look at when you're deciding whether to issue a temporary restraining order.

The problem for Judge Leon, which he highlighted during the hearing and then also in his written order that he later issued soon after the hearing, is that Brehm, Brehm filed this suit in his personal capacity and was unable to, in Judge Leon's mind, articulate any type of harm that was personal to him as opposed to harm that would occur to the board or to the agency itself.

And then there was this other question that came up quite a bit as well that you know thinking about the type of harm that might be imminent—is, was the question of is it the intent of the government to do away with the development fund altogether, or is it just to scale it back to its statutorily prescribed, like the minimum statutorily prescribed functions?

That was something that the government said that it was doing that oh all along our true intent has been just to scale it back to the statutory minimum, and that was one thing that Judge Leon cited in determining that there was no, you know, irreparable harm and that there's no threat of imminent injury in that the government has made these representations that they're not doing away with the agency altogether, they're just trying to scale it back.

And however, he did have some very strong words for counsel who are representing DOJ during this, this hearing saying to them, you know, you're standing before me telling me that the intent is just to scale this back, not to abolish it. And you know, you're going to have to, at some point in the, in the future of this litigation produce some of these people—and he mentioned some of the DOGE people who have been involved in thi— you're going to have to produce them and I’m gonna ask them under oath to talk about you know in what way they were trying to preserve the statutory functions of the organization.

So he, he cautioned them and then in the order as well, he said during the preliminary injunction phase—you know even though I’m denying the temporary restraining order—during the preliminary injunction phase. I want the government to produce Ethan Shaotran, Nathan Cavanaugh, and then I believe it's one other person, maybe Luke Ferriter, to under oath be able to speak about what they've done to preserve the statutory function.

So that will be very interesting. We're now getting into this phase and a lot of this litigation actually in which some of these DOGE people are going to have to be produced to resolve some of these questions of fact.

Benjamin Wittes: All right, so we now have also had some big actions in the personnel matters. Let's start in the Northern District of California, Anna, where Judge Alsup basically reinstated all the probationary employees, right?

Anna Bower: Right. Well, so for, for six agencies, although I think that there has now been an effort, there's, there's, there's things going on as to a lot of these employees in in other courts, but in Judge Alsup's court he did order the reinstatement of probationary employees in six agencies including the VA,  Treasury, DOI, I'm, I'm forgetting exactly–

Benjamin Wittes: I, I think Veterans is in there too.

Anna Bower: Veterans. Veterans, yeah. So I'm, I'm, I'm , I'm forgetting exactly which six, but it was a significant you know, number of agencies. He said that he, however, would, would not, discount the possibility that in, you know, if, if someone asked for it, he, he may very well order the reinstatement in the future as to other agencies, but for now, he thought that the evidence was strongest as to those six agencies.

But one of the things that was very interesting in the lead up to this ruling in the past few days, and, and even before that, over the past few weeks is that, you know, this is one of the cases that relates to that OPM directive to agencies to fire probationary employees. The Trump administration then said, oh, no, it wasn't a directive, this was something that the agencies did themselves.

And so there's been this factual dispute over was OPM unlawfully directing agencies to do this? What was OPM's role? Or was it the agencies who decided this themselves? Of course, there's also some other subsidiary issues related to you know, whether these employees were fired because of misconduct or not and that kind of thing, but that has, the former became a big factual dispute in the lead up to this preliminary, preliminary injunction hearing.

The government at one point put forward a declaration from Charles Ezelle, who was the acting or is the acting director of OPM, and then Judge Alsup called an evidentiary hearing in which he ordered Ezelle to appear and testify. That then led the government to follow up and say oh, we don't think that Mr. Ezelle should be compelled to testify because there's a separation of powers issue. And he's this official who would be unnecessarily burdened by having to come testify.

Judge Alsup gave them the opportunity to have him sit for a deposition as an alternative, but they, they resisted and ultimately had to withdraw Ezelle's declaration. They then tried to submit a different declaration by, by someone, you know, just a day or two before the evidentiary hearing was supposed to happen.

Judge Alsup got fed up, said we're not going to do any kind of evidentiary hearing on the day of the PI hearing but I want everyone there and we're going to figure out what to do with the PI. He holds this hearing and he just tears into government council because he has been frustrated over the increasing reluctance of the government to put forward the witnesses that they submitted a declaration for.

And he at one point in a pretty remarkable exchange just said to the DOJ attorney you don't want to bring people in here and subject them to cross because you know that it would reveal the truth and so it was a really remarkable moment because there he had previously been pretty lenient with DOJ and giving them the benefit of the doubt giving them time to figure out what to do about Ezelle having a deposition or being subject to cross or that kind of thing and he ultimately just kind of got to a point where he he couldn't take it anymore.

Then he heard argument from the parties and then read his order from the bench He, he ultimately—as it was clear already, I think at the beginning of the hearing—he did not buy the argument that DOJ had been making that there was never any kind of directive from OPM. He rejected that that representation and found that these mass firings of probationary employees, at least to those six agencies were illegal and then ordered the reinstatement of those employees at least for the time being as a part of the preliminary injunction.

And then Scott, I believe that there is another case where something very similar has happened. Is that right?

Scott R. Anderson: Yeah, a lot less drama. We have in another similar matter, Maryland v. The U.S. Department of Agriculture in the district of Maryland.

We've seen a similar litigation challenging the dismissal probationary employees approach across a much broader swath of government, at least the remedy that the court came up with applied much more broadly.

Essentially the court reached a conclusion earlier this week—yesterday, I believe it was—where the court granted the TRO, essentially on the logic that these probationary employees who had all been dismissed en masse for purportedly individualized career reasons—remember these people are often given kind of mail merge justifications for why they were terminated—that the pre, they were so clearly pretext for what was actually a large scale reduction.

Benjamin Wittes: By the way guys, I'm, when you get a mail merge pretext dismissing you all, that is a totally individualized reflection of your personal performance.

Scott R. Anderson: I hope you at least get my name right because that is not the case with many of the people that receive these mail merge emails explaining why they were being terminated.

Regardless, essentially the judge interpreted them saying these aren't actually any sort of individualized basis. This is a large scale RIF, and Congress has prescribed procedures for a large scale RIF and they include advance notice.

And that's very important for these particular plaintiffs. because this is the state of Maryland with a lot, where a lot of federal employees live. And they are now going to have to pay, pickup unemployment benefits and lots of other public services because all of a sudden lots and lots of their citizens have been released from their jobs unlawfully.

So on that basis, essentially set the, they essentially issued a remedy saying, ou are obligated to restore these probationary employees to their employment status at least for the next 14 days as we evaluate a preliminary injunction that is just the TRO and also prohibited further RIFs where they don't provide the advanced notice that's usually required by the statutory and regulatory procedures for reduc—RIFs, I'm saying RIFs is reduction in force, for these reductions in force.

This is, it's so particularly notable because we know in other contexts. it's like the CFPB context, we have seen reporting or documents suggesting there were efforts to bypass the statutory limits through declarations of emergency and things like that. So that's going to put those kind of more under the microscope, even if the government does try and move forward with them, at least from this Court.

Now it's worth noting this was just in the last hour or so, they notified that they were appealing to the Fourth Circuit, which is unsurprising. We also saw in the Alsup cases—AFG, AFGE v. OPM that Anna noted—we just saw in, I think in the last hour or two, a motion suggest, seeking that they're going to put a stay on the judge's decision while they pursue an appeal. I suspect we're going to see something similar in the Maryland case as well. They just haven't put the brief together.

Because clearly the government—these are overlapping motions—the Maryland judgment or the Maryland determination applies to every federal agency except for National Archives administration, DOD and OPM, so getting rid of one doesn't help you when the other's in place. They're going to have to get both stayed and then both on appeal. So I'm sure we're going to see that probably   over the weekend.

Benjamin Wittes: Alright. We got a few more cases to get through. We got a couple audience questions. If you are in the audience and you want to ask a question, this is your last chance to add stuff to the Q and A.

Folks I'm going to ask everybody to be brief on the answers so that we can get through everything.

Anna, we got a big hearing, two days of hearings before Judge Amy Berman Jackson against Mr. Vought from the National Treasury Employees Union. What's going on there? This is the CFPB case.

Anna Bower: Yeah, so this is the CFO, the case over the dismantling of CFPB. To be brief, we had a two-day evidentiary hearing as Judge Amy Berman Jackson considers whether to grant a preliminary injunction. She has previously noted that she has reason to be concerned that if she doesn't grant a preliminary injunction then the agency might be shrunk out of existence before she gets around to ruling on the merits.

She held this hearing; the, the, the main witness was a guy named Adam Martinez who is in operations at CFPB. Some of his testimony was quite interesting because he described the DOGE, the kind of initial DOGE entry into CFPB, and, and the chaos surrounding DOGE kind of coming in and, and doing various things at CFPB, the, the chaos—and again, that's his own words was that it was chaotic and confusing—in that people weren't really sure who was in charge. You know, was it the, the new leadership was a DOGE? Was it people at OMB?

So he describes—even though he was one of the government's witnesses, it was not always the case that his testimony was particularly flattering for the government—but, but one thing that is one of the big factual questions here is, you know, is it the intention, just like the Brehm case, there's this question of is it the intention of the government to still continue the statutory functions of CFPB at least at a minimal kind of level? And and if Judge Berman Jackson doesn't enter a preliminary injunction is it the case that it's basically the agency is kind of done and can't be brought back before she gets around to ruling?

So that was kind of one of this, the big issues with all these witnesses is this question of you know, what exactly is the government doing now versus 2hen it had plans to lay everyone off and it had plans to shut down everything, even things that are mandated by statute.

And ultimately in the end of the hearing she said that it was illuminating but she did not immediately rule. She did indicate however that, that she wasn't quite sure how she would rule but she seemed to keep it have in mind that she would issue some kind of preliminary injunction—unless the parties agree to something themselves before she rules—the idea being that her order would kind of try to keep CFPB afloat at least at a minimal level, but she's really struggling exactly how to craft an order that does that because there's various different functions that CFPB has to do.

And so a lot of her questions were targeted at like how many people would you need to keep, this going and, and you know, what is it that is still happening with respect to dysfunction. And so I think that that's what her her primary kind of roadblock is right now is just figuring out exactly how to craft an order that is narrowly tailored to the problem that she has in mind.

Benjamin Wittes: Alright, Scott. Let's talk about this weird case involving Citibank and frozen funds in an apparently, or maybe retributive, criminal investigation by our friend Ed Martin, the U.S. attorney in Washington, which an actual friend of the site, Adam Unikowsky, seems to have shown up in.

So what's going on in the Citibank case?

Scott R. Anderson: So Adam is representing one of the groups in the lead group in the litigation Climate United Fund v. Citibank, although I understand some of the other groups—I couldn't tell from the reporting whether it's other groups about the specific fund or other funds in a similar position—may be pursuing parallel litigation, in the near future.

Regardless, in this particular case which we have so far, filed earlier I guess over the last weekend and proceeding a bit this week—this is where Citibank has at the request of several federal agencies withheld access to a large pot of money allocated by the Biden administration for a number of kind of green industry initiatives under the infrastructure or the Inflation Reduction Act, the IRA, that was enacted during the Biden administration, so four years ago. Kind of one of the last big tranche of that money, they tried to get out the door.

It was held as kind of a Citibank instead of a receivership, or more like I guess like kind of credit arrangement but has been frozen. The plaintiffs in this case say we haven't been able to get this money that we're entitled to, we were relying on it at this point, e're actually closely shutting down. They actually said they might have to shut down today if they did not receive the money in an earlier filing in this case.

The U.S. government has essentially argued at this point, there's actually no jurisdiction over this complaint because they canceled the underlying grant—the EPA did, it was an EPA grant—and that therefore, there's really no remedy available, there's no jurisdiction for this sort of action about withholding this because these parties aren't entitled to this motion, to this money anyway, they don't have standing, there's no jurisdiction for the court.

I don't think the judge was entirely persuaded by that yet, but they demanded briefing on it as well as evidence for the basis of the cancellation on Monday, and they've also invited an amended complaint by the parties, which I presume is to give them an opportunity to object to the now announced cancellation of the underlying grant, not just to the withholding of the funds. And the federal government is brought in here as a defendant alongside Citibank, even though they're not the kind of named defendant.

So long story short, look out for fireworks on Monday; I think we're going to get a number of very interesting brief, a lot of interesting information about what the heck is happening with this very strange case.

Benjamin Wittes: All right. Speaking of weirdly named people, the most peculiarly named judge on the federal bench, Judge Sparkle Sooknanan, had a, granted summary judgment for plaintiffs in, in one of the firings federal employee firings case. There are action in several of those. Scott bring us up to speed.

Scott R. Anderson: Sure. Well, that was in Grundmann v. Trump that relates to removal of the federal–

Benjamin Wittes: I just front loaded it because I wanted to make another joke about how to pronounce somebody's name.

Scott R. Anderson: He's a very serious person with a very silly name, and that's fine. There's nothing wrong with that. This is a member of the FLRA who was removed.

They are now going to be, there's a potential for appeal. There's no signs of appeal yet on the docket in regard to the summary judgment granted for the plaintiff that their removal was unlawful.

We saw a similar measure in regard, in Harris v. Bessent. This is over a member of the Merit Services Protection Board, a very particular important case because of course the MSPB has been involved in pushing back on the removal of probationary employees in other places and in part because Ms. Harris is able to continue her role on the board. There's a summary judgment and a permanent injunction in that case for the plaintiff was issued last week as I recall. It's already been appealed to the DC Circuit. And that now we know an argument, oral argument in that case is scheduled for March 18 meaning that it's going to be a fairly expedited schedule, to say the least, at the request of the parties.

Finally, we also have Storch v. Hegseth. This is kind of the last big of these cases, which involves a number of fired inspector generals across various agencies. There we've seen Judge Reyes, I believe it is essentially say we're gonna have a consolidated motion hearing on March 27, but we haven't seen any action on any other underlying motions.

This was a case, if you recall where—I believe it's Paul Clement who's representing—some of the underlying lawyers got in some trouble because he they essentially came in trying to seek urgent relief after having not filed for several weeks. That caused some initial friction in this case. So now it seems to be proceeding at a slightly more leisurely pace compared to some of these other removal cases.

I actually think, was it Paul Clement or was it Seth Waxman? It may have been Seth Waxman.

Benjamin Wittes: I think it was Seth Waxman.

Scott R. Anderson: I think it was Seth Waxman. Sorry, Paul. I'm kidding, because you were—Paul, Paul was involved in the in the Eric Adams case.

Benjamin Wittes: Paul was involved in the Eric Adams case.

Scott R. Anderson: That's why his name is in my brain. Prominent former solicitor generals abound in these matters. So apologies, apologies, Paul and Seth.

Benjamin Wittes: All right. So, Anna? Do we know who the administrator of DOGE is yet?

Anna Bower: Well, again, status is the same. We know in theory, and on paper, that we think who the acting administrator of DOGE is: Amy Gleason.

But I continue to be on, we—I actually, okay, this is a good question. Now that we're on pronunciation. The acronym for who is the administrator of Doge is W-I-T-A-O-D. Is it we-towed or wi-towed?

Benjamin Wittes: We-towed. It’s like Wittes.

Anna Bower: Alright, I'm on we-towed. Watch. No, no, no.

Benjamin Wittes: Not we. You don't pronounce my name wee-tes.

Anna Bower: Oh. It's wi-towed. Alright. I continue to be on WITAOD Watch.

Today ProPublica published an article in which they said what I think has been obvious for some time, which is that Amy—based on interviews with various people in the DOGE orbit—they reported that Amy Gleason has no real decision making authority or power and they say that in, in fact, DOGE's day to day operations seem to be run by a man named Steve Davis, an Elon Musk ally, and that Musk himself often makes you know, commands or directives.

But, Ben, I do have good news for the WITAOD community which is that Judge Tanya Chutkan has ordered discovery in the State of New Mexico v. Musk case—that is the one of the Appointments Clause cases—and that discovery will include some document requests and interrogatories, including to Elon Musk and, and people affiliated with DOGE. So we may very well learn more about who the administrator of DOGE actually is or who is running DOGE when some of that discovery becomes available further in that litigation.

And then finally I'll just mention as well that on the other Appointments— one of the other Appointments Clause cases—Does 1-26 v. Musk, we're still waiting for Judge Chuang to decide whether or not to issue a preliminary injunction. He, last week, issued an order in which he directed the government to submit various documents that show who authorized certain decisions. The government then a few days ago filed those documents.

It's very interesting because many of those documents do not seem to be responsive whatsoever to the judge's order. Some of them are just emails that—for example, one of them, he asked who authorized taking down USAID's website. The government in response then filed a email that is someone who works in web management who is just describing the fact that the website is down. It's not an actual directive. There's other things that are weird where he asked for who decided to shut down the USAID headquarters starting on Jan. 31. They submitted a occupancy cancellation letter sent by GSA to USAID on Feb. 7.

So, there's a lot of weird kind of non responsive things that don't go to answering the question of who is the administrator of DOGE and who is really calling the shots, but I think it is just notable in terms of as we're waiting for Judge Chuang to issue that order, DOJ seems to have filed a number of things that are just non responsive.

Benjamin Wittes: Scott, speaking of producing documents, our old friend the Freedom of Information Act has had its day in court.

Scott R. Anderson: Indeed, we saw Citizens for Responsibility and Ethics in Washington, a pretty prominent public interest litigation advocacy group — particularly around transparency issues, among other things—filed a lawsuit seeking a pretty substantial amount of disclosure in regards to the operations of DOGE, has been litigating that out.

They had a big victory this week on Monday where they received a preliminary injunction from Judge Cooper here in district court in Washington, D.C. He essentially agreed that DOGE was covered by FOIA. This is notable because this has been a point of contention; here's a big theory that the way DOGE was situated in the executive office of the president would somehow insulate it from the Freedom of Information Act.

I'm not sure that was ever actually a very well founded understanding of things given that FOIA does apply to different parts of the EOP, and it didn't seem like that big a question to apply to DOGE, but nonetheless, this is judicial confirmation that in fact it does, at least in the eyes of Judge Cooper, and he agreed that the, there's a strong public interest that motivated and expedited production on these documents.

He declined to order them an immediate handover, which is what the plaintiffs had requested which is probably a tall order to begin with. But it's essentially getting both parties together to tell us what an expedited framework for producing the documents will look like and that should come forward just in the next couple of weeks.

So we should have a good sense and my guess is probably going to be a bit of a rolling production potentially at the scale of this. We'll, we'll, we'll start getting big tranches of information or at least CREW will —and they're likely to share it publicly, I suspect—about what a lot of what has been happening in DOJ from these documents.

Benjamin Wittes: We can find out who the administrator is.

Scott R. Anderson: Perhaps even.

Benjamin Wittes: Alright. One last item. And then one audience question. We only have one audience question today, guys. Scott, what's up with the transgender service members case? Modest movement in that, yeah?

Scott R. Anderson: Two cases. Not that, not a ton of movement, but I, you know, I think it's worth mentioning them just to make clear to folks, we're still following them and waiting for them.

There's two, two cases where early that we're paying, paying most attention to here. One is Talbot v. Trump. This is the case you may recall, recall also before Judge Reyes, that had a quite a dramatic moment an initial argument where Judge Reyes really pushed back aggressively on some of the government's arguments and in particularly pushing as to whether they reflected clear animus. While obviously she is very skeptical of aspects of the government's argument in that place, she actually hasn't ruled yet.

There is kind of a, a standing understanding that there's notices that are rolling in regarding the implementation of the transgender policies in the Defense Department, a kind of understanding, a consent agreement that there's not being directly applied as of yet in terms of like terminating the actual plaintiffs.

And right now there, we still have a PI hearing, preliminary injunction hearing, scheduled for March, scheduled for March 12. We've had that—it looked like in the docket there was actually another motion hearing scheduled today just two days later, but it's not clear what that's about. It may have been some errant posting, but nonetheless, that's what appears in the docket with no other information attached to it. So we're still waiting from the judge about her decision on the preliminary injunction.

Meanwhile, in a second matter, Schilling v. Trump, this is for in the Western District of Washington, there's another PI hearing set for March 25, which will be I guess not this coming week, but the early the week after, which is gonna be the next big step there. So still keeping an eye on these two litigations but we're just reaching decision points and then we, we haven't seen any final action of any sort as of yet.

Benjamin Wittes: All right we have one question and it is from the ever elusive anonymous attendee. Since the administration has been revoking access to classified information, by Covington & Burling, Mark Zaid, and others who are or will be representing clients in the administration's crosshairs, what will happen in court when such cases go to trial if the defense doesn't have access to the information necessary to defend their clients?

Okay, so there's a, a couple of levels of answer to this question. So the first is you're assuming that these are, are criminal matters, and most of them are not. So mostly these firms, like firms like Covington have security clearances because they represent big tech companies that get demands from, you know, for example, under 702 or under FISA or, you know, they're, they’re; it's not necessarily that there's an individual client with a criminal matter and there's a CIPA question right under that. That's actually the rare situation.

So it's a big problem for the firms. It's a big problem for the clients but not for the simple reason that, you know, eventually you have to go to trial. Most of these things that's not where it's going to end up.

In the hypothetical event that they denied classified information to somebody who was representing a client in a criminal case that was headed to trial, you would have an issue with the district judge that, you know, you'd have to justify that, and ultimately the person might have to get a different lawyer or an additional lawyer who was, who was, they were willing to clear or able to clear.

Generally speaking, what happens is the government capitulates and clears people who were clearable rather than face a lot of friction with the judge. It's very easy to say you're cutting off everybody's access to classified information. It is, among other things, a matter of convenience to the government to have cleared counsel on the other side of a lot of things.

Now, in the case of Mark Zaid, who represents whistleblowers and represents people, again, mostly not in a criminal context, this is a much bigger problem, because this is basically what he does for a living. And so I think the answer to the question what happens to the clients is they probably end up getting different lawyers or having one of Mark Zaid's partners who's not subject to this represent them, handle the classified material.

The real question to my mind is what happens to Mark Zaid because his whole self presentation, the whole, his whole business is organized around representing people who have security clearances in matters that require security clearances and so it's a real targeted strike at his livelihood.

Alright, we are going to leave it there folks. It is 5:30 and we begin on time and end on time, and we are doing both today. Thank you to our long suffering special guest who, you know, who dominated the first part and then and then just, we just ignored you for the last two thirds of this. Thank you for joining us today. 

Matthew Boaz: It was my pleasure. Thanks for having me.

Anna Bower: Thanks so much, Matt.

Benjamin Wittes: Thanks to Scott and Anna and to everybody who joined us today. We're going to be back next week. This is going to be our regular time, folks. We'll see you then.