Lawfare Daily: The Trials of the Trump Administration, March 21

[Intro]

Roger Parloff: The hearing ends and it develops that, as you've heard, the planes weren't turned around, so there is a, an important compliance issue.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare senior editors, Anna Bower, Quinta Jurecic, and Roger Parloff. In a live recording on March 21, we discussed litigation over President Trump's invocation of the Alien Enemies Act, executive orders targeting law firms including Perkins Coie, and DOGE’s actions targeting the U.S. Institute of Peace.

Quinta Jurecic: It was something along the lines of, you know, I, I tell all of my clerks that the most important thing that you can have is your reputation, and you should be very careful about where that stands right now.

[Main podcast]

Benjamin Wittes: Hey folks, welcome to this week's “Trials and Tribulations of the Trump Administration.” I am here in beautiful, sunny Phoenix, Arizona, sitting outside, if you have a little bit of background noise, that's the reason.

And I'm here with Roger Parloff, who is somewhere in the vicinity of the U.S. federal court; Quinta Jurecic, joining from the Ansel Adams studio; and Anna Bower joining from a, a hitherto unknown room in her palatal mansion. Anna, what room are you joining us from?

Anna Bower: This is the, I just spent 18 hours on an Amtrak train room.

Benjamin Wittes: Which is blurry from lack of sleep, sleep.

Anna Bower: Right, exactly.

Benjamin Wittes: Alright, well, we've got a lot to get started on, so let's jump in and do it. There was a hearing this morning in the J.G.G. case, which you know, I don't remember what it stands for, but I'm sure one of you does. So Roger, get us started. What happened in Judge Boasberg's court today? And where are we now in the, in the J.G.G. litigation?

Roger Parloff: Yeah. It was actually more lively than I expected today. But where we are is on Saturday the ACLU and Democracy Forward Lawyers learned that this Alien Enemies Act proclamation was coming up and their clients had been already moved to Texas, and, and they actually brought suit before the proclamation came out, anticipating that this proclamation would come out that would, in which—and maybe Quinta can describe it more later—but in which basically they try to depict the Tren de Aragua, well they do depict the, the proclamation that says that Tren de Aragua, which is a criminal gang, is the equivalent of Venezuela.

The, the, Alien Enemies Act is, is, is a provision that says, whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion dot, dot, dot by any foreign nation or government, and the president makes a proclamation, he has these extraordinary powers to expel the alien people. And so there, the, the theory is that Tren de Aragua this criminal gang is a being directed by the Venezuelan government, that it's a wing of the Venezuelan government and that it counts as a foreign government. And in any case, it doesn't matter because the theory is that once the government, the president finds these things, it's unreviewable anyway.

So, anyway, they brought this emergency TRO Saturday. There was a emer—and he granted it even before the, because he, the people were about to be shipped out of the country, and so he granted a TRO without the proclamation even having been public yet. It, the proclamation became public at 3:00, sometime after 3:00 PM.

And then the, a hearing was held on the fifteenth, and that's the one at which. Judge Boasberg was very concerned about the people. The, the, the ACLU lawyers were kept emphasizing that the planes have either left already or they're about to leave you, you need to move quickly. They had an adjournment to, so the government could find out if that was true.

They, they came back, the government said, I'm not, I, I, I can't, they won't tell me if it's true, it's national security stuff. And and then and then he made an order to the oral order—let me see if I can find it, I can't—but he, he ordered that basically the planes be turned around and if they were, if they had left, and it's a pretty, it's a, it's a very clear order.

Anyway the hearing ends and it develops that as you've heard the planes weren't turned around. And they, so there is a, an important compliance issue. Judge Boasberg has avoided the word contempt; he did slip into it once at a hearing Monday, but it he, he, he speaks in terms of compliance. And so, there was another hearing on that on the seventeenth. That was Monday. He did grill the lawyers, but he could not get more information from them about the precise flight details. That's still being litigated.

So today was supposed to be a motion to vacate that injunction and also a class certification because the first TRO just kept the five individuals in the U.S. and then his cert, he certified the class, meaning you can't send any of these people that fall within the definition of the proclamation abroad. And that's what, what happened anyway.

So, both of those were instantly appealed. And so those are at the D.C. Circuit and there's gonna be an argument on a stay on Monday. So this is proceeding on many levels, so, and-

Benjamin Wittes: Well hang on, hang on. What's before Judge Boasberg today is whether to dissolve the TRO and whether issue a preliminary injunction or?

Roger Parloff: No, no, just to dissolve it on the theory. You know, it was such a slapdash thing Saturday, it was so rushed. He wanted to—the government hadn't submitted anything, so he wanted to give them an opportunity to develop their arguments about mainly this isn't justiciable, this, this needs to be done as a habeas corpus, and if you do it as a habeas corpus, you need to bring it in Texas because that's where most of the defendants are confined, and none of them were confined in D.C. So, those were the key issues today.

But he did end up drilling the lawyers on the compliance issue. And maybe I should let Quinta talk about it some so, she can, she can weigh in.

Benjamin Wittes: Alright, so Quinta what was, where, where did we get to on the compliance question? And for that matter, what answer does the ACLU give to the question of what this case is doing in Washington?

Quinta Jurecic: On the compliance issue, Judge Boasberg came out of the gate pretty hot, I think it's, it's fair to say, basically putting Drew Ensign, who's the Justice Department lawyer—I believe he’s a political appointee. I'm not completely sure

Roger Parloff: He is.

Quinta Jurecic:  Okay, thank you Roger. On the spot and saying, asking him, you know, what, what exactly did you understand was happening when you told me during that Saturday hearing that you understood my order to turn the planes around? And really grilled Ensign, who kind of, you know, wriggled his way out of these issues, but I think the, the overall takeaway is that he was saying, you know, he, he was essentially not in command of all of the facts when he was making those, those comments.

And Boasberg closed that section of the hearing by saying, I think it was something along the lines of, you know, I, I tell all of my clerks that the most important thing that you can have is your reputation, and you should be very careful about where that stands right now. After which there was a, there was a long silence on the line, Roger, I don't know what the, what the energy was like in the courtroom.

Roger Parloff: Yeah, that was he came out much hotter than even Saturday. I mean, Monday right after the defiance, and, and the thing that I think was pissing him off was that the Saturday hearing Drew Ensign appeared. Then they defied his order. And then on Monday, Drew Ensign doesn't appear. It's, it's an, it's two new lawyers. One is Abhishek, who's also a political appointee, or at least he's only been there for two months, and the other was in the background. He's just a, he was a career guy.

But, and I think that he thought they were dodging, they didn't wanna have Drew there because, Ensign, because it would be, he would have to admit that he understand stood perfectly well that this was an order he was to turn it around. So, Mr. Ensign, the first point is that you shall inform your clients of this immediately and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.

But those people need to be returned to the United States twice, he said. However that's accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane I leave to you, but this is something you need to make sure with is complied with immediately.

Benjamin Wittes: So, Quinta, how did he explain himself today?

Quinta Jurecic: So, so like I said, he really essentially said, oh, well, you know, I wasn't aware of the specifics about where the planes were. It was, there was some wiggling out from under the microscope. I think it's, it's fair to say I would need to go back and once there's a transcript, look at the, the specific wording to get a sense of what, how specifically DOJ is gonna play it here, because they're definitely being very, very careful about specifically what they're acknowledging and not acknowledging.

I do think it is worth noting that actually at the end of the hearing, a legal alert for the ACLU said that they would be filing information shortly that actually some individuals who had been on these flights—so there are three flights at issue, two of them are full of people who have, who are being removed under the Alien Enemies Act. According to DOJ, the third flight was only people with a final order of removal. So those are not people who are being removed under the Alien Enemies Act, that's under the normal INA process. And so–,

Roger Parloff: The, the important, if I can just, the important thing about that third flight is that everyone agrees it doesn't leave until after the written order. In order to evade this oral order, the government is saying, oh, the oral order doesn't count. It's not till you memorialize it in the written order, minute order that it becomes an injunction. And, and this third plane leaves after. I'm sorry, Quinta, go ahead.

Quinta Jurecic: No, not at all. And so, so right, and the third plane, I think that is not necessarily violation of the court order because DOJ is saying the folks removed on that plane were removed under the INA, not under the AEI, which is actually permissible under any iteration of Judge Boasberg's order.

But the reason I mention this is that legal alert for the ACLU said that they would be filing sworn declarations shortly that actually some of the people on some of those planes—I'm not quite sure, which iteration of planes—were returned to the United States. One of them, I believe he said, because they were not Venezuelan and at, I think at least one because they were female, and apparently the El Salvadorian government would not take them. So they were—I assume because the prison in which they're being incarcerated is a male only prison—so they were put back on the plane and flown back into the United States.

The reason that this is important is that as Roger points out, it means that the U.S. absolutely had the ability, you know, even if somehow you, you physically couldn't, you know, turn the plane around over the Gulf of Mexico, that you could have just put everybody back on the plane and flown them back into the United States. And that was a choice that the government made not to do that, especially because the planes landed in El Salvador hours after these orders originally came down because they had a stopover in, in Honduras.

So I think that's, that's important. I wanna go back to your, your question about, you know, why is this case being brought in D.C.

Benjamin Wittes: If I remember right, just to be clear here, it seems to me that the government is kind of dead to rights on having violated the order. And their stronger argument is gonna be you had no authority to issue this order because, there's, you know, it should be styled as a habeas case. None of these people are in the District and you didn't file your habeas case in the Fifth Circuit, which is where all these people were, so nananana, we get to violate your court order because you don't get to issue it. I assume that is their underlying argument, no?

Quinta Jurecic: I don't believe they touched on that in this or any other of the hearing, actually. Roger, I don't, I don't know if I was, was missing anything.  There was certainly, there was a lengthy discussion of habeas today in terms of the ability of the individuals in question—you know, if, if somebody is scooped up under the Alien Enemies Act, Boasberg was pointing out, you know, there is a lot of case law that indicates that even if, you know, we accept that the Alien Enemies Act is properly invoked here, or if it's not justiciable to, to consider the invocation, that individuals are able to challenge their detention or removal under the act by saying, you know, hey, I'm not a German citizen, right, a Japanese citizen, I wasn't born there, or in this case, I'm not a member of, of Tren de Aragua.

So that is kind of the, the key issue here.  And so there was a lengthy discussion of what the proper way to kind of bring these challenges is. DOJ was saying it has to be habeas, which limits you, as you say. The ACLU was arguing that because the INA actually comes later that you can permissively challenge it through the usual INA process, which I think is the grounds for why they're, they're framing this in part as a APA lawsuit because it does, the administration sort of skipped around the normal INA procedures is my understanding.

Again-, oh yeah, please.

Anna Bower: Oh, I was just gonna jump in and ask a quick question too, because I, so I, I wasn't able to listen to, I was able to listen to some of the hearing, but not all of it today. And I'm curious, someone who is not an immigration law expert, if, even if individuals on plane three—which it's undisputed plane three took off after the written order that Judge Boberg entered during the TRO hearing—like I think it's undisputed that there were people who were Venezuelan, who the government is saying were subject to a final order of removal, but they were deported to El Salvador. El Salvador, right. Or to Honduras. I, I, I can't recall which. And so the, it like, you know, if someone is subject to a final order of removal, are they not typically deported to their country of nationality or I, what is the–?

Roger Parloff: It depends. What the DOJ was saying, you know, when, when they were explaining. The DOJ submitted an affidavit about the third plane, and they said, oh, for all these people, we had final orders under Title 8. So that sounded kosher, you know, it sounded like they'd gotten all their due process. But he was saying, well, the final order has to designate a country and he's, it, it, it's extremely implausible that it designated El Salvador. And so that sort of threw a new wrinkle in and, and it, it sounded like we'll get an affidavit later tonight or tomorrow raising these other issues.

I, I'm sorry, Quinta, did you have more to say there?

Quinta Jurecic: I was just gonna add, my understanding is that sometimes people are actually deported to third countries, but as you say, Roger, I don't, I have no idea if that is the case here.

Benjamin Wittes: So-

Roger Parloff:  On another thing—I'm sorry, go ahead.

Benjamin Wittes: I'm still confused what the, what the case is doing in Washington. Roger, I, you know, it's initially has a habeas component, but the habeas component drops out. And Boasberg is now being asked to, to dissolve the TRO. What is the government's argument that he should dissolve the TRO?

Roger Parloff: Well, there's a couple. One, one is has to do with justiciability and the other has to do with venue, I would say. And maybe there's two different kinds of justiciability, but the venue relates to, they, they'll, they'll say, they kept saying habeas, habeas, habeas, this sounds in habeas. You can call it what you want, but once–

Benjamin Wittes: I think they're wrong about that.

Roger Parloff: Yeah. I think they had, the government had a good, I mean the, plaintiffs had a good response to that, which is nobody's asking to be released, which is usually what you know, is, is the gist of habeas. They, they say, yeah, we're detained, fine; we don't wanna be removed, and we particularly don't wanna be removed to a prison in El Salvador where we'll, we'll, we may be tortured.

And and so, it's not, and, and so the—it's under, you know, there are also, there are claims under the APA, the Administrative Procedure Act. There are claims under the INA, the Immigration and I think Naturalization act because they're saying you, you didn't follow ordinary procedures and we had asylum claims pending. There's a claim under FARRA—I think it's the Foreign Affairs Reform and Restructuring Act, something like that—which says you can't be deported to a country where you're gonna be tortured.

So there are these federal claims under, you know, conventional federal question jurisdiction, and then there is a venue provision that's based on the defendant that lets you sue in D.C. That's the theory for D.C. jurisdiction as I understand it.

Benjamin Wittes: Gotcha. Okay.

Roger Parloff: Can I say one other thing that was really interesting?

Benjamin Wittes: Sure.

Roger Parloff: He's really—when this, when he, when he finally delivers, if he's allowed to deliver his ruling on compliance as a, as we're calling it, it's gonna be a doozy. And and he's, and he vowed, he said, you know, government's not making it easy, but I, I, I will get to the bottom of what they knew and who made this decision.

And, and one of the things he was pointing out was that the—and this is consistent with what the plaintiffs saw—is that the proclamation is dated the fourteenth. He signs it secretly on the fourteenth. That's a Friday. And what, what, what, what the attorneys saw was their clients, beginning around March 9, they all began to be suddenly moving to the El Valle Detention Center in Texas and missing and being prevented from attending conventional asylum proceedings or other types of immigration proceedings that they were scheduled for.

And then secretly, and of course, the, the Alien Enemies Act says there has to be a public proclamation, but secretly this is signed on the fourteenth and then it sort of leaks out. I guess we don't really know how. The attorneys bring suit before there is a proclamation. And, and, and so Judge Boasberg is asking, well, if you thought this was legal, why are you doing it in the dead of night? You know, what's all this about? I mean, you, you were what you, you know, if the suit hadn't been filed, you, you'd have had the planes, they'd been out of the country before you even revealed the proclamation. And that's certainly—

Quinta Jurecic: And how are they supposed to indicate their, their habeas claims at that point?

Roger Parloff: Yeah. And, and of course the, the big question, the big thing you keep coming back to, you know, Boasberg agrees there has to be some, it's clear that some things are non justiciable. There is a Supreme Court case called Ludecke v. Watkins that says certain things are not justiciable. It's an unusual case, Alien Enemies Act case. But it also says in a footnote that certain things are justiciable.

And so, that's one of the tough questions. I think he, he finds it tougher than, than the question of whether the proclamation was illegal, is whether he's entitled to say, like, is he entitled to question a finding that this was an incursion by a foreign government, even though it doesn't look like it was.

And then so he's, he's, he thinks it's easier, he clearly thought it was easier to ask the question and what, what's, there's no question about justiciability, is there ought to be some mechanism to find out if these guys are even members of TDA, Tren de Aragua. You know, that much is clear, it is just, is justiciable.

And it sounded like he was a little shy about saying the whole proclamation is, is invalid. But anyway—

Benjamin Wittes: So before him now is what the question of whether to dissolve the TRO, or the question of whether to extend the TRO, what—?

Roger Parloff: It, it's to, it's to dissolve it. I mean, that's the motion pending. He's going to extend it. He, there's another twist, which is that, you know, as soon he, as he entered the original TRO—which was before there even was a proclamation and before the hearing and before there were any papers filed by the defendant—it was appealed. And so there's a question of what can he do? Can he fiddle with it now? Can he modify it?

And then there was a second order where he certified the class, and that's also being appealed. And so it sort of limits exactly Gelernt, the plaintiff's lawyer thought, maybe you better just leave it, see what the D.C. Circuit does, and then you can fiddle with it. He wanted to begin narrowing it already, and, and, but he, he was looking for a mechanism for some sort of individualized review.

And it's really worth, I'm sorry if I don't wanna go on and on, but it might be worth talking about the Supreme Court case that we're all working with, which is this 18, 1948 case Ludecke v. Watkins.

Benjamin Wittes: This I know well.

Roger Parloff: Oh.

Benjamin Wittes: Lives in, in Nazi history rather, rather interestingly, and in, in detention, the history of detention cases.

Roger Parloff: Oh I, go ahead.

Benjamin Wittes: So before we talk about Ludecke though, let's talk about what's before the D.C. Circuit, because Boasberg may never get a chance to rule on any of this, right?

Roger Parloff: Yeah, yeah. So these are, those, it's those two earliest minute orders. It's not the order to turn the planes around—I, I mean, I don't think. I don't think they'll be touching on that. I, I, it's, it's just the issues of does he have just, does he have, are these unreviewable orders? I mean, is the proclamation unreviewable? If it's reviewable, what parts are and shouldn't it be a habeas? And if it's a habeas, you need to dismiss or send it down to Texas where they seem to think they'll have a better shot.

Benjamin Wittes: Let’s talk briefly about Ludecke, and then we can move on to completely different subjects. So, on its face, the—so let, let's, this is the most recent, I think, Alien Enemies case that there is. What in your read does it say about the justiciability of Alien Enemies cases?

Roger Parloff: So it was, it was a 5-4 ruling. This was a, there was no question he was a German national. And it was declared war, it was World War II, and he was arrested in 1941. And then he actually went before they had a board, an Alien Enemies something board that would verify that you were, you know, an alien enemy subject to this statute.

And then they were trying to remove him beginning in 1946. So the issue became, well, wait a minute, the hostilities have ended can you still use this Alien Enemies Act thing, which is about a declared war, at this point? And both Congress and the president were saying the war wasn't over for these purposes. And Justice Frankfurter for the majority said that you really couldn't, that this was not justiciable, the, the president's determination that the war was still going.  He said the very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion.

But then in footnote 17, it, it makes clear that the additional question as to whether the person restrained is in fact an alien enemy, 14 years of age or older, may also be reviewed by the courts. And there's a ton of research—Steve Vladek has done some both on his Substack, but also in a law review article, which Judge Boasberg said he'd read—where it, it, it, in almost every case, there are these preconditions to, for the statute to apply that are justiciable. So—

Benjamin Wittes: Yeah, I gotta say the justiciability question in Ludecke, at least as I remember it. I think of Ludecke as a detention case, right, 'cause he's held this whole time.

And the, what the court held to be non justiciable was whether the war was over. And, and the war you know, what it said is that that's an essentially political question in character, and both Congress and the executive say the war's not over. By the way, there was no peace treaty resolving World War II until I think ‘52 or ‘53. And so if you're held as an alien enemy until the end of hostilities, and the president and Congress both say that con, there are still hostilities, don't come to us for relief from that.

But the question of whether he was an alien enemy I, I think that's a fact question. And you know, in this situation, the essential factual predicates of the basis for the detention in the first place or the are simply false. There is no war between or invasion by the country of Venezuela against, and I find it hard to believe that, that that question would be justiciable.

Anna Bower: Yeah. And, and so that's one question that I have for Roger is like, did this case go to the question of—because I, I think that the question of whether there's the question of whether someone is an alien enemy, and then there's the question of is Tren de Aragua a foreign government as that term is used?

And so I think that that's one of the big questions is the way that they've tried to describe Tren de Aragua as being so closely connected to the regime in Venezuela, but then at the same time tried to say that it has some kind of de facto control over certain areas and so therefore it is a foreign government. I mean, to what extent has the case law to what extent does the case law speak to that question about what constitutes a foreign government under the alienation?

Benjamin Wittes: Well Ludecke doesn't speak to that at all. There's no doubt that Ludecke was a German national and that the U.S. was at war with Germany. And so I, I don't know if there may be other case law that speaks to that, but certainly not Ludecke v. Watkins.

Quinta Jurecic: I don't believe there is, because, so the, the, the Alien Enemies Act has only been invoked three times: War of 1812, World War I, World War II. All of those were declared wars. And the individuals in question, the question was, are you a citizen or a native—I can't remember the precise language—of the, the countries with which we are at war. It has never been invoked against a non-state actor or a hybrid criminal state or whatever the ridiculous language they, they use in the executive order is. So we've never had to address these problems because nobody has ever tried to, to use it in this way.

And it, it's very odd. It's sort of like the Trump administration found this statute that has a very broad grant of authority to the executive under certain circumstances—we’re not in those circumstances, but they're really trying to kind of force a square peg into a round hole here so that they can then use that authority.

Roger Parloff: There, there are cases that—not in the context of the Alien Enemies Act—that do try to define what's a foreign government, and, and so there's some reliance on those, but the plaintiffs’ lawyers so far at least have not, you know, they've, they've not submitted expert declarations from historians or, or, or—I don't know what you would be—a, a, a foreign affairs expert to, to take issue with the specific findings of the proclamation, which frankly are, you know, assert facts that I have no idea, they may, maybe they're right.

I, I, you know, and so, and I, I think that Boasberg also wonders well, what exactly, what is, how are we going, you know, do I take judicial notice that this is false? Or do I invite experts to talk about whether, you know, second guess the findings in this proclamation? And I think what he's finding is a lot easier is to say, let's just, there has to be some individualized way of proving that they're not, that they are or aren't Tren de Aragua.

And Gelernt does want a broader ruling 'cause he thinks otherwise this will be a, a catastrophic precedent. You can't give a, a precedent this sort of power to, to designate any gang as, as deportable under the alien, criminal gang.

So I don't know if Judge Boasberg is gonna go there. I don't think it's easy.

Benjamin Wittes: Alright, let us pivot to, not to Asia, but to law firms, and specifically to a different judge who the administration is attacking. Judge Beryl Howell. So, Quinta, get us started here. Hearing before Judge Howell involving the Perkins Coie case—what happened?

Quinta Jurecic: I did not listen to that hearing, unfortunately. So I think that, that, that question might be better directed to Anna or Roger.

Anna Bower: I did so, so I did listen to that hearing. We actually spoke about it last week, so I think that we can kind of skip the details and, and listeners who are interested in what happened at that he, at, at that hearing on the TRO related to Perkins Coie can, can listen to last week's episode, but Judge Howell granted the TRO that was sought by Perkins Coie with respect to one of several executive orders that target specific law firms that have either represented the interest of or employed people who Trump perceives to be his enemies.

So, the other firms, Covington and—is it Covington and Burling, or Covington and Burlington? I can't. Covington & Burling. I think, yeah, thank you—and then Paul Weiss and then Perkins Coie. Perkins Coie is one of the firms that decided to fight this executive order that relates to its ability to, for its attorneys to get security clearance to certain contractual relationships with gov, between, you know, what government contractors have to disclose to the federal government about potential relationships it might have with the law firm, the ability of, of its attorneys to get into federal buildings.

Ultimately, Judge Howell, as we discussed, granted a TRO that enjoins the government from implementing certain sections of that order. One of the sections of the order that was not enjoined relates to security clearance. But I think that one of the more interesting developments that's happened over the past week in this case is that when Judge Howell entered this TRO, she ordered the government to then send a notice to all federal agencies in which they informed them that, you know, the certain portions of the executive order are suspended as to Perkins Coie.

And then we had this really interesting moment on in a filing on the docket in which the government ultimately filed the notice that ended up being sent from DOJ out to all of the federal agencies, and it essentially said, you know, pursuant to this court order, we are ordered to inform you X, Y, and Z about what the court ordered. And then, however, they say in a separate paragraph— and Roger, please jump in if I am butchering the, the paraphrase that I'm about to say—but something to the effect of we think the judge's ruling was erroneous and that this executive order is permissible and we reserve the right to take all necessary and legal actions to enforce this executive order to combat the risks posed by Perkins Coie. And so a really defiant notice—.

Roger Parloff: The dishonest and dangerous conduct of, of Perkins Coie.

Anna Bower: Yeah, I'm sorry. Yeah. I just, Roger, I mean, what did you make of that?

Benjamin Wittes: As somebody who's you know, thought a lot about dangers to the United States and national security threats, that executive order was the first time I'd ever thought of of, of a domestic law firm as a, you know, it's like they talk about Perkins Coie, like it's the firm in the John Grisham novel or something.

Anna Bower: Yeah, and so like, Roger, what did you make of that notice? Because I think that in, with respect to the Perkins Coie case, that was probably one of the big things that happened this week that was quite—in addition to all the, these other patterns of the government flirting with contempt of court and defiance of judicial orders, this seemed to be yet another escalation to that effect.

Roger Parloff: Yeah, I thought it was defiance. I thought it was shocking. It's because it, it reinforces the threat. It, it says basically he's saying, yeah, we lost the TRO, but we may enforce it anyway. And so, that means you better not do any work with Perkins Coie, or we're gonna come down on you. So that to me is defiance. I was surprised it didn't get a little more attention. I, I thought it was really shocking.

Also, the, the, the two names on it are Pam—it's a memo, so—but the two names on it are Pam Bondi and Russ Vought. And the notice that presented it to Beryl Howell was signed by Chad Mizelle, the chief of staff of Pam Bondi. So this is straight from the attorney general in really defiance.

Benjamin Wittes: You can, you can do business with TikTok, not withstanding a statute that says you can't, but you can't do business with Perkins Coie even if a federal court says you can.

Roger Parloff: Yeah.

Benjamin Wittes: Alright. So—.

Anna Bower: Yeah, and it, and it really painted a, a contrast to what played out the same week with a very similar executive order that targeted a different law firm called Paul, Weiss, and so maybe we should talk a little bit about how that played out.

Benjamin Wittes: Yeah. So we're gonna talk about Paul, Weiss in just a second, but before we do, there was a different motion that I think was just filed in this that sought the disqualification of Beryl Howell as judge in it. What do we—and this of course follows a similar one about James Boasberg. Again, Quinta, I don't think there were any career officials on the, the brief. Is that right?

Quinta Jurecic: That is correct. I cannot find the actual PDF, apologies, but it is I believe it's Chad Mizelle and someone else who is also a political appointee.

I also think it's worth noting that the first sentence of this motion to disqualify says—well, it's a, it's terribly written, but I'll just read you a snippet of it—they're, they're concerned about, fair proceedings free from any suggestion of impartiality, and these are suggested in, excuse me, essential to the integrity of our country's judiciary. We, we, we do not want our judges to be impartial.

Benjamin Wittes: Yes. Any hint of impartiality, we gotta banish that. That's gonna be like a new slogan at Lawfare.

Alright, excuse me. Let's talk about Paul, Weiss, famed Democratic law firm you know, of the, of the, you don't wanna meet them in a dark alley school, folded like a cheap suit in front of the Trump administration. And to all my friends who work at Paul, Weiss, sorry, but we just gotta call that one like we see it. Quinta, what happened?

Quinta Jurecic: So there had been another executive order kind of along the lines of the Perkins Coie order. It seemed like the real sort of beef between Trump and Paul Weiss was that the firm, like over a decade ago, used to employ Mark Pomeranz who of course went on to work in the NY DA's office investigating Trump in the case that would eventually turn into the New York prosecution. Of course the fact that it's a Democratic, you know, known as a Democratic law firm, I'm sure it didn't help matters.

But so there had been this order; Paul, Weiss had not filed suit against it as Perkins Coie had. And then last night there was a Truth posted by Trump saying that he had agreed to withdraw the order after the firm had entered into an agreement with him.

And the, according to Trump, the terms of the agreement were that you know, Paul, Weiss agrees the bedrock principle of American Justice is that it must be fair and nonpartisan. It affirms its unwavering commitment to these core ideals and principles, and that it wouldn't deny representation to clients because of the personal political views of individual lawyers.

It would take on a range of pro bono matters across the political spectrum and that it would not adopt to use or pursue any DEI policies—remember that. That it would essentially give Trump a $40 million in kind donation by providing him with that amount of money's worth in pro bono legal services. And also that they, had acknowledged the wrongdoing of Mark Pomerantz.

So this came out yesterday evening I think over the course of yesterday evening and this morning—in part thanks to reporting by when Anna Bower, I'll pass this off to—it turns out that Paul, we actually agreed to a different set of commitments and the, the DEI issue and the Pomerantz, excuse me, apology were surprise, surprise actually not in the agreement that Paul, Weiss says that it reached with the White House.

So before I pass this to, to Anna to talk about what she found out, I would just say, I think this is an example of how, you know, I could see how the firm convinced itself that, you know, I we're basically not agreeing to anything and we can get these people off our back, you know, why bother?

I think the, the takeaway is that it may be tempting to think like that, but that's not how this administration thinks, and they will push as far as they can possibly push and make you look like a fool. And I would just point out that typically the way that protection rackets work is once you pay up for the first time, then they know that they can force you to keep paying. And so if I were Paul, Weiss, I would be very, very worried about what I've signed myself up for here, and I'm very, very curious how this is going to affect the firm's bottom line.

So with that, Anna, over to you.

Anna Bower: Yeah, I mean, Quinta, I think that you summed it up nicely in terms of what the email and then attachment that we obtained that is, presents a contrast to what Trump on Truth Social put out regarding the agreement with Paul, Weiss.  The documents that you're referring to are, are ones that we obtained that are from Brad Karp, the chairman of Paul Weiss, who was the key negotiator here in terms of negotiating with Trump and the White House regarding some sort of agreement in which Trump in exchange would rescind the executive order related to Paul Weiss.

And as you mentioned, some of that email and then the attachment that set out, the agreement that Brad Karp sent out to all of the, all of his employees at, at Paul Weiss. It, there were a few things that weren't that Trump's Truth social statement kind of embellished or exaggerated or just made up whole cloth including the DEI part the, the, the part about that Brad Karp admitted wrongdoing on the part of Mark, Mark Pomerantz.

But I, I think you're right, that it, it does that in itself is perhaps some sort of lesson to firms who consider capitulating to the demands of Trump that you know, whatever it is that you agreed to may not be represented honestly. But I, I think also, it, it honestly kind of doesn't matter that the details themselves were not entirely consistent in terms of what Paul Weiss agreed to and then how Trump presented it, because in, in my view, you know, this was a shakedown and Paul Weiss caved.

And, and you know, these executive orders, whether it's the one against Perkins Coie, whether it's the one against Paul Weiss, like to me, they really do represent an existential threat to the legal industry and to the practice of law. And I honestly am, am maybe not shocked but certainly alarmed that a firm with the reputation that Paul, Weiss has seem to, you know, find it so easy to just within the course of a week, go and make some sort of agreement with the White House. And, and really, I, I, if I'm being frank, it's, I I find it quite embarrassing. But but I, yeah, I, I please if, if there, if others disagree, then please jump in.

Benjamin Wittes: No, I don't think anyone's likely to disagree with you about that. But my question is why, other than the fact that whenever somebody disputes a factual claim that Donald Trump makes in a bilateral interaction, you assume that Trump is lying and the other side is telling the truth. Why are we assuming here that Trump is overstating what's in the deal rather than that Paul Weiss is understating what's in the deal by way of minimizing the embarrassment to the firm?

Roger Parloff: Well, to begin with, it's inconceivable that there was anything in the deal about Pomerantz, I mean. And even, even the truth social thing was worded, it said Trump read a version of the alleged agreement, which was probably right except for the thing about DEI. But even he didn't claim that Pomerantz was a part of it. Then in a separate thing, he says, and they admitted, you know, that Pomerantz did something wrong. I mean, it was clear that he was adding that, it wasn't part of the agreement, and it's just—

Benjamin Wittes: Well, we've still never seen the agreement, right. We've seen Trump's characterization of the agreement and we've seen the way Karp reflected the agreement to his partners and staff, right?

Anna Bower: Yeah, but I think that there, the, the agreements are similar enough that, you know, there are like the Pomerantz part the fact the, this, that is something that is a difference. The, I think it's the DEI part is a difference, but there's similar enough that we know there was some sort of agreement and that–

Roger Parloff: The, the $40 million seems to be agreed.

Anna Bower: The, the, yeah, the 40 million.

Quinta Jurecic: You look at the, if you look at the email, Anna, that you posted on Bluesky, the specific text of the email from Brad Karp says, we want to share with you the final agreement between Paul and the administration, it is attached And that's the version that has nothing about Pomerance or DEI.

Benjamin Wittes: Okay. All, all I'm saying is that if we accept, as I do, Anna's characterization of this as embarrassing for Paul Weiss, we should hold out the possibility that it is Paul Weiss, not Trump, that is misstating what's in the deal.

I don't assess that possibility as all that great. But when we say Trump's lying about the deal, it's also at least vaguely possible that that Karp is, right?

Anna Bower: Right. But I, but I also just think that the—

Benjamin Wittes: I really don't think it is.

Anna Bower:  I, I, but well, to me though, I think the bigger point is just that the agreements are similar enough that, at least in my personal opinion it, it regardless, no matter which agreement you take to be the truth there is an element of shame and embarrassment.

Benjamin Wittes: Yes, absolutely. Alright, Quinta has gotta drop off, and I have question our, our weekly question for Anna Bower which I have composed a little jingle to introduce this week; who’s the administrator of DOGE Anna, what, what, what have we learned this week on the DOGE litigation front?

Anna Bower: It's WITAOD time, as we now know from last week. That's how we're pronouncing it. We're, we're going with it. So, we had two big developments, I, I would say in which, or actually a few big developments in WITAOD watch this week, one being I, and probably the key—

Roger Parloff: A formality we, we should give the acronym for late people.

Anna Bower: Oh. Who is the administrator of DOGE: W-I-T-A-O-D.

Last week it was determined officially by me, the official performing the duties of the acting administrator of the WITAOD movement, that we are pronouncing it WITAOD. Every week this is our WITAOD watch segment in which we clarify this question about who, what have we learned about who is actually in charge of DOGE? Of course there is in the executive order this role that is formally set out for a Doge administrator the administration has said that it is Amy Gleason, and yet publicly Trump and Elon Musk continue to say that Musk is in charge of DOGE.

And this is a big question in one of the, and actually in all of the appointments, clause cases—there are at least three that are currently being litigated—but one of the cases, which is in Maryland that is being presided over by judge, we were still waiting on a preliminary injunction order from him about whether or not he was going to grant a request from a group of former USAID employees for a preliminary injunction with respect to DOGE's activities to dismantle USAID.

And I am, I'm gonna hand it off to Roger in a moment to talk about more about the law and the particulars of that order, but one of the major issues with respect to who, the question of who is the administrator of DOGE was in this order in which judge swung granted a preliminary injunction, or at least in part he said as a, as a matter of one of his factual findings, I find that at least with, with respect to the time period that's relevant to this motion that Elon Musk was performing the duties to some extent of the administrator of DOGE.

So that was a major moment in WITAOD watch this week. But then we also had, for the first time, a number of declarations that were filed by Amy Gleason, who the administration says is the acting administrator of DOGE. Which has been somewhat awkward in that, if you read any news reporting around DOGE and its activities, Amy Gleason is almost never mentioned.

And if you've read any of the declarations up until now about who is actually calling shots or who's been involved in meetings, Amy Gleason is almost never mentioned, or, or in fact I don't think has really ever been mentioned until this time when she has filed declarations finally attesting under oath that she is indeed the acting administrator of DOGE.

One of the more interesting revelations that came out of some of these filings, though beyond Amy Gleason attesting to the fact that she is the acting administrator—although she claims she doesn't actually have any real authority or reporting structure over any of the DOGE members who are actually working within agencies themselves—we learned that in one of the cases, Amy Gleason not only is serving as the acting administrator of DOGE, but on or around March 4, was appointed to serve as an expert slash consultant for Health and Human Services. So you must wonder how it is that she has time to be in charge of this massive effort to dismantle the federal government and then also serve as a consultant, and have a, and have a part-time job.

And then finally it's, oh, right, and then finally the, the last thing for WITAOD watch that, that it was important. This week, the New York Times had a report in which they asked the question, who is running DOGE? And one of the answers that they came up with is that Steve Davis, a, a close ally of Elon Musk, is someone who seems to be overseeing the organization and, and calling many of the shots.

Benjamin Wittes: And I'm gonna—I've asked you this before and I'm gonna ask you it every week again—are you secretly the administrator of DOGE? This whole thing is just like a ruse to, to hide the fact that you are the puppeteer.

Anna Bower: Ben, as Gossip Girl would say, that's a secret. I'll never tell.

Benjamin Wittes: Alright. Alright. We're gonna do some rapid fire because we've got a few more cases we gotta get through. Roger: presidential firings. We got some cases still going on.

Roger Parloff: Okay. And I'll just say that Judge Chuang did issue the preliminary injunction. He did find that it likely that, that the plaintiffs would likely be able to show that Musk is not constitutionally appointed and also that the dismantling of USAID was a violation of separation of powers.

I also want to mention that in another one of these cases against Musk, the one in front of Judge Chutkan, she had ordered discovery to answer some of Anna's questions. She didn't put it that way, but I'm, I'm sure that was what, what really she was doing. And it was supposed—she issued it March 12 and we were supposed to get answers April 2. And DOGE and the Trump administration is appealing that to the D.C. Circuit. That's a mandamus action. So, we will probably, find out next week if they block the discovery.

So Humphrey's Executor we had two cases: the case of Wilcox and Kathy Harris, I've forgotten Wilcox's first name, somebody in the chat will have that. One is with the NLRB and one is with the Merit, Merit System Protection Board. They were both fired. As you know, probably that ostensibly violates Humphrey's Executor.

So 1935—I'll go back. 1926 is Myers v. United States. The, the, the postmaster general who'd been appointed by the president. And, and, and the Senate said —with a Senate confirmation principal officer—and the Senate said, you, you can only remove him with Senate approval. And, and the court 1926 said, no principal officer, the, the, the president has to be able to remove him.

And then 1935 was Humphrey's executor. It had to do with an FTC commissioner. And they said, well, that's a little different from Myers. It's a multi-member board, less executive power, maybe no executive power. We're, we're gonna, that one, the, the statute said you can't remove him without cause, and they upheld that.

So the question is that, is that still good law because we had these two cases in 2020, 2021, Seila Law and Collins v. FHFA, involving the single person heads of CF—the Consumer Financial Protection Board, which had a lot of executive power and the single person head of FHFA, Financial Housing, Financial Housing, Federal Housing Financial Authority.

And, and, and, and they said both of those, the government the, they not only said both of those, the, the president has to be able to remove the officer, but they said, you know what, we're not gonna go one by one anymore. You know, certainly for single single, heads of offices the, the government and the, the president has to be able to remove.

So a lot of conservatives wanna see Humphrey's Executor overturned itself, so even, even multiple board members can be removed in each of these cases. The district courts struck down what Trump did. They said, no, Humphrey's Executor is still binding on us at least. And they kept the these people in their posts. That's now on a state petition to the D.C. circuit. It's a conservative panel panel; it's, it's Karen LeCraft Henderson, It's—.

Anna Bower: You mean Judge Millett? Is, is Judge Millett on there, or no?

Roger Parloff: Yes. Patricia Millett, who is a liberal, and, I'm sorry, the third is Justin Walker, who's a Trump appointee.

And and so, and they were, the, the, the argument was Monday and Millett thought Humphrey's Executor was still good law. The other two, it sounded like were prepared to maybe say otherwise and, and say the, the writing was on the wall and to stay the, the, TROs or the preliminary injunctions, I guess, and which would mean you could fire those people would lose their positions. While, while we litigate further, we're expecting a ruling; obviously that's gonna go to the Supreme Court. That's a big deal.

By the way, that panel, it's a motions panel—and, and I asked James Pearce about this, who used to be the you know, the key appellate guy at the DOJ—and so apparently in the D.C. Circuit for a month you'll have a motions panel. And this is who it is right now and they're handling a lot of important cases. They're the ones who are gonna handle the J.G.G. state petition. So, and they handled Dellinger—if you remember, he was the single board head of OS, single head of OSC, Office of Special Counsel—and they did reverse effectively the TRO that Amy Berman Jackson had entered in that case, or the preliminary injunction. So, they, they're doing a, they're—I can't wait for April because, because they're, they're the motions panel until then. Yeah.

Benjamin Wittes: We've had some developments in the Citibank investigation matter.

Roger Parloff: Oh yes. Sorry. Go ahead, Anna. Did you wanna discuss USIP quickly or, or do we, or, or? Because that was a really wild one.

Anna Bower: Yeah, I mean we can, we can discuss it quickly because it does relate to removal questions, so, and, and also just is another example of one of these cases related to DOGE that just has a completely wild fact pattern.

The USIP is this entity, federal entity—I'm using entity in the way that the government did in its briefs because it sounds like it's actually a little bit of a of unclear exactly what type of federal entity it is, but it is created by statute as a independent nonprofit corporation—and, and the acronym USIP stands for the United States Institute of Peace.

And you know, it has this board member, I think, I believe that it's—correct me if I'm wrong, Roger—but 15 board members, three of which are ex officio or like, you know, officials that are kind of already in the federal government. It's Rubio, it's Hegseth, and then vice admiral, you know, there's a number of people who are kind of these political appointees who always serve on the board.

But then for the most part, you have this group of people where it's like five Republicans and five Democrats and they are appointed and confirmed by the Senate. It's this, you know, body that seems to be based on the way the statute is set out, quite independent from other federal agencies. There in the statute is this language in which it suggests that the president can only fire people for very, you know, for cause under certain circumstances.

And you know, DOGE got wind of this organization and decides to go in, as it has with, with other agencies, though I believe that the USIP was mentioned in, in one of the executive orders. And over the course of several days, DOGE members from DOGE go to the USIP headquarters, attempt to gain entrance to the headquarters.

There are, as we've seen in other organizations, efforts by the administration to remove members of the board in a way that does not comport with the plain language of the statute. You know, they sent, they send notices to these people that don't have any sort of real, you know, reasons behind it, and then they try to remove the president of the board as well through via a letter that is signed just by the three ex officio members of the board, as opposed to the statute, which mentions that, you know, only the board can remove the president. And it seems like having just three people isn't, it's—there's this question of whether or not there's really quorum and, and who really was even on the board at that time, if you've unlawfully removed the people who are supposed to be on the board.

So there's all this stuff that's happening, but the real kind of shocking part of it all relates to the physical alleged trespass by members of DOGE. This is one of the things in the complaint. They actually, one of the claims is, you know, trespass because they say that over the course of several days, DOGE people show up; they show up with members of the FBI; they show up with security services.

They—apparently USIP suspects that DOGE has somehow gotten in with the private security contractor called Intercon that USIP hired or contracted with to provide security services for its buildings. They suspect that there's some kind of relationship that Intercon has with DOGE, and so they terminate that contract in order to prevent a scenario in which Intercon gives access to the building to DOGE.

And then despite the termination of that contract, they receive word that, you know, there are these Intercon people who still have access cards who are going trying to access the building, and they believe it to be because DOGE has threatened Intercon, insofar as it might have other federal contracts or security services, they apparently, or allegedly been told, you know, you won't have any future government contracts if you don't give us access to this building.

Ultimately the D.C. police arrive because—I believe that USIP actually was the one, what were the group who called the D.C. police because of this, what they took to be a trespass on the USIP property. And D.C. police ends up kind of you know, insofar as one does siding with the DOGE folks, and so then the DOGE folks get in.

A group of, of individuals who are the board members or former board members, depending on how you look at it, sue and they sue in the name of the United States Institute of Peace not, not in their personal capacities. They're suing you know, the plaintiff in the case, the lead plaintiff is the United States Institute of Peace. And, and so they bring this case with a, with a number of different claims, separated powers, trespass, like all, all of these ultra, ultra vires, all of these different things.

It goes before Judge Howell for a TRO hearing. And you know, it was a, it was an interesting hearing because on the one hand, Judge Howell was clearly appalled by the conduct and, and the circumstances of, you know, multiple law enforcement officers showing up to this building to try to get access. At, at one point she wondered aloud if, if she did enter a TRO, would it be the case that she was gonna have to have a mediator come in, that kind of thing, in terms of getting the DOGE people outta the building.

But, but ultimately I think that she came—the, the reason that she decided not to enter a TRO and, and denied it, she seemed to be quite confused by the fact that the—and, and that's a term that she herself used—was that there was confusion in the complaint about whether or not, you know, it was proper for the complaint to have been brought on the part of the United States Institute of Peace, when in fact the whole case is about whether or not several of these people who are the plaintiffs are, who are claiming to be the still proper board members, you know, are the proper board members. And so there was that issue.

She also was concerned about some of the ongoing, the, the questions around the president's powers of removal. She was concerned about whether or not USIP really is a, is it a federal agency? Is it an independent nonprofit? And if it is a federal agency and not just an independent nonprofit, does that mean that this is just an intra-agency, an intra executive branch dispute?

So these are some of the things that she raised, and that's, that's ultimately the reasons why she decided not to enter a TRO, but it was kind of a rollercoaster of a hearing because on the one hand, you could tell she thought this was appalling conduct, but on the other hand, she felt like she couldn't quite get to a point in which she felt like the factors for a TRO and some of the legal issues were were really clear enough that it, it warranted the extraordinary relief of a temporary restraining order.

Benjamin Wittes: Alright. We only have 11 minutes left. We got three cases yet to get through and we got some audience questions, so I'm gonna ask everybody to keep answers brief.

Roger, Judge Chutkan granted in part a TRO in relation to the Climate United Fund v. Citibank case. Remind us all what this is all about.

Roger Parloff: Yeah. If you remember, you remember how the head of the criminal division in the U.S. Attorney's office in D.C. quit sometime back because she was being asked to seize or to, to sort of craft a criminal seizure order for money that was being kept at Citibank, well, this is the civil case emanating out of that situation.

This is called Climate United Fund v. Citibank. It's, it's actually three cases. These are all involved with the Greenhouse Gas Reduction Fund, which was created in 2022 by the Inflation Reduction Act. And about $27 billion was appropriated for to, for nonprofits would partner with the private sector and create tens of thousands of green energy product projects.

So, anyway in the middle, middle of February all of the funds of these three plaintiffs who had been appropriated—$14 billion in funds—were frozen. They're frozen by Citibank. Citibank is the financial agent that the government uses in all these contracts. So, she did issue a TRO, it's, but it doesn't actually unleash the funds.

Citibank won't it, it, it keeps things where they are. Citibank won't give the funds back to the EPA, which is what the Trump administration wants to do. They wanna claw everything back. But meanwhile, the, the nonprofits are not getting it and they're, and, and they have, they have projects underway, and all of those projects are in trouble. So, anyway, that's where that one stands. She's gonna try to move fast on that.

There was another one you might have read in the paper, and, and as I, this was the AFSCME v. Social Security Administration. This was DOGE inside these ultra sensitive, the data systems of the Social Security Administration, and the judge is Judge Ellen Lipton Hollander of Maryland. It's a 134 page ruling, which I have not had a chance to read, to read. As I've mentioned before, when you cover 80 cases something has to give. This one is among the ones that gave.

There was, there's the Mahmoud Khalil deportation, deportation case. That has also given as far, maybe Anna knows more, but I'll just go get through these. That was transferred maybe yesterday from Manhattan to the district of New Jersey. You remember, he's the, the protester at Columbia. Is he a, is he a, a, a, a green card? Does he have a green card?

Anna Bower: Yeah, I believe that he has a legal permit, or he was a green card holder, and his wife is an American citizen, as I recall. And so, yes, I believe he was a green card holder.

Roger Parloff: I think he's being held in Louisiana, but, but I, I, I, I guess he went through Newark and, and the judge decided, the Newark judge, I mean, the New Jersey gets it first.

Finally Ana Reyes, the the rather theatrical judge in the district did issue a preliminary injunction against the transgender in, in the military order of Hegseth implementing the executive order. And I haven't read that one either, to be honest.

Benjamin Wittes: Alright, so we are going to go through two quick questions and then wrap up.

Jeff asks, does Elon Musk claiming more presidential advisor status, mere presidential advisor status, shield him from the consequences of his advice? I'm not entirely sure I know what the question means, but if what you mean is, is a presidential advisor potentially liable for bad advice? I think the answer to that is no. He's not—you're entitled to take advice from whomever you want and you are the responsible actor as president. That said, the, the issue with Elon Musk is really, if you're claiming to be merely an advisor and you're actually issuing orders, you are actually being an executive official who's wielding executive power, then you are maybe acting illegally. That's the real issue here.

Ruthie asks are the government lawyers going beyond the bounds of their oaths or are they just vigorously supporting their clients? So let me say, as a general matter, I think the Justice Department career lawyers have been behaving honorably. And that is one of the reasons why you have not seen a lot of, you've seen a lot of these cases where they just refuse to answer the judge's questions. They say, I haven't been told the answer to that question, I can't answer that. And so Judge Boasberg, as Roger pointed out, was very nice to the government lawyer who on Monday couldn't answer any of his questions. He understood that that guy was not responsible for the problems that he had, the representations that had been made to him on Saturday.

On the other hand, you're also not seeing a lot of career lawyers signing some of the more provocative briefs. Those are being signed by Mr. Mizelle, by the attorney general herself, sometimes by Emil Bove. So you're, you know, people are being careful in their roles as officers of the court, and that is sometimes requiring that the senior administration officials do their own representations of these outrageous positions.

Now are they being honorable in the way they are representing those positions? I'm gonna leave that one unanswered and let the federal judges answer it how, what, how they feel about the quality of practice in the court. I do think that Rogers earlier invocation of Judge Boasberg saying hey, you know, you know, you've got all, I tell my clerks all you've got is your reputation and yours is a little shaky with me right now is, you know, indicative of what the answer to that question is.

 And I think you're gonna see particularly on some of these frivolous disqualification motions and some of the cases where the representations that the Justice has made before the court—the Justice Department has made before the court—have not proven accurate or have not been reasonable, I think you're going to see judges start responding to that. Do either of you have anything to add to that?

Roger Parloff: I, I, I, I'll just say that this guy today, Ensign—or I think somebody says it's pronounced Ensign—I, I don't think I don't think he's on the hook. He, he was very forthcoming today, I think, in saying yes, I understood you to be saying what you said you what you meant. He—I don't think he's on the hook. I think it was clear that Boasberg thinks that somebody higher up that made this call.

Benjamin Wittes: We are going to leave it there. Roger Parloff, Quinta Jurecic, Anna Bower, thank you all for joining us today.

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