Lawfare Daily: The Trials of the Trump Administration, March 28

[Intro]

Scott R. Anderson: The Trump administration has announced USAID is being dismantled, folded in the State Department. They notified Congress to that effect about two hours ago.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare senior editors Scott R. Anderson, and Roger Parloff, Lawfare contributing editor James Pearce and former ACLU national litigation director David Cole, now at Georgetown Law School.

David D. Cole: I, I think we are living through unprecedented times in many respects, but in some respects a lot of what Trump has done has been done before, but it's been done in real emergencies.

Benjamin Wittes: We talked about the status of the many civil litigations challenging President Trump's executive actions, including the deportation of individuals under the Alien Enemies Act, the detention of Mahmoud Khalil and others, the targeting of law firms, and so much more.

[Main podcast]

Hey folks, welcome to this week's Lawfare Live. It is Friday, March 28. It is 4 o’clock p.m Washington D.C., time, and joining me today is Lawfare senior editor, Roger Parloff. Hello, Roger.

Roger Parloff: Hello. Thanks for having me.

Benjamin Wittes: Mr. Senior Editor Scott R. Anderson. Hello, Scott.

Scott R. Anderson: Hello everybody. Good to see you again.

Benjamin Wittes: And Lawfare's newest fellow who occupies the venerable esteemed fellowship, which doesn't yet have a name. James Pearce. James, welcome to Lawfare Live.

James Pearce: Thanks, Ben. Great, great to be here and great to see everyone.

Benjamin Wittes: So James is a longtime national security appellate prosecutor. James joins us most recently from the Office of Special Counsel Jack Smith. Before that was a, had a long career in the appellate section of the criminal division at the Justice Department.

And then finally, our special guest—who gosh I'm gonna have to explain a little bit about how deep my history with David Cole goes on the case that he is here to talk about—David Cole of Georgetown Law School—most, long stint as the litigation director of the ACLU.

And whom I met when he was a young lawyer and I was an even younger reporter covering a case of a Palestinian, a group of Palestinians yanked off the street and put into deportation proceedings under the same provision that is now at issue. David, it's great to see your face. Welcome to Lawfare Live.

David D. Cole: Nice to see you, Ben. Thanks for having me.

Benjamin Wittes: Alright, we got a world of stuff to cover so let's jump right into it. And let's start actually with the so-called J.G.G. case, which will set up that conversation. J.G.G. you will remember is the, the Venezuelan case—different, different provision of law, this is the Alien Enemies Act.

But we have a D.C. Circuit decision. Roger, get us started. What, what happened in the D.C. Circuit this week?

Roger Parloff: Well, and actually we're, we're also bumping up against the Supreme Court now.

But three things happened this week. First Judge Boasberg down at the district court level actually issued his first lengthy decision, 37 pages. It was a motion to, it was a denial of a, refusal to vacate the TRO that he issued back on March 15. That's his first lengthy explanation in writing of, of, of what he's doing. And actually, he sort of changed his reasoning a little bit.

At the, on the same day there was a D.C. Circuit argument about staying his TRO, which both blocked the removal of the five named, semi-named plaintiffs—they, they, they filed pseudonymously, so J.G.G is one of those five, that's his initials—and also there was a quick class certifications to prevent the government from removing under the Alien Enemies Act any other suspected Tren de Aragua people under the same summary procedures.

And so that was argued Monday and we got a, they actually denied the government the stay, so the TRO stays in effect. That was by a 2-1 vote. And I will let James describe that. And then in just a moment, and that has since been— the, the government is already trying to appeal that to the Supreme Court to get a both a, a the, the TRO dissolved and also to get an administrative stay immediately. We'll get a response from the plaintiffs on that by Tuesday.

And I just, there was some also back at, at Boasberg's court, what's happening is that the plaintiffs are trying to get 14 more days on that TRO, and, and they, they want to expand their factual record before seeking a preliminary injunction. And they obviously want to, I think they have what they believe is evidence that non Tren de Aragua people were shipped to El Salvador.

And also if you remember, there was a third plane. There were two planes that where there was a dispute about the, the Judge Boasberg wanted them to turn around the plane if necessary and they didn't. And then there was a third plane that left after his written order was issued, and they said, yeah, but that none of those people were shipped away based just on the Alien Enemies Act. They all had a final conventional deportation order against them. The ACLU and Democracy Forward want to challenge that.

So, I think those are, that sets the stage. James, do you wanna talk about what the D.C. Circuit did and, and I guess what, what the government is now arguing in the Supreme Court?

James Pearce: Sure. Yeah. Thanks Roger. And as Roger noted, the week kicked off with, with the argument the D.C. Circuit argument on, on Monday. And when the government got up to—excuse me when the government got up to make its case, Judge Millett jumped in and, and was pretty characteristically questioning a number of aspects of, of how the government handled this matter in including why it hadn't sought a stay before the District Court, as well as sort of really pushing it on, its on its legal theory.

When the government sat down Judge Walker was then, more aggressively questioning the ACLU counsel about kind of the, the, the positions that, that J.G,G and the plaintiffs had staked out. And the, the third judge, judge Henderson, the senior, the presiding judge—not a senior judge, but the presiding judge—by my count, didn't ask a single question throughout the entire hearing. So I think a lot of court watchers got a, you know, a, a bit of a sense of, of where two of the judges were. But, but really—

Benjamin Wittes: Just to be clear though, that's quite typical for Henderson. She's one of the most reticent judges on that court, right?

James Pearce: That, that is very typical. And in fact was similar to what we saw last week in the NLRB, the National Labor Relations Board and Merit Systems Protection Board, MSPB argument, she was a bit more active, but yeah, that's, that's entirely accurate. That she often is, is a, is a quieter judge from the bench.

So, as, as Roger also mentioned two days later—and two days ago as it were—we got 93 pages of opinions from the three judges ultimately denying the government's motion to, to stay to, to essentially to undo the, the, the TRO.

And the, the breakdown was, was interesting in, in how they got there. I mean, the first question in some respects, and this was this got attention at argument, is whether there was really, whether there was appellate jurisdiction over this this appeal from a temporary restraining order. And on that, the, the, the three judges split two to one with Judge Henderson and Judge Walker, both finding that there was in fact a jurisdiction somewhat unusually.

So, a TRO is typically not subject to appeal. In Judge Henderson's view, there was an exception for what she called irretrievable harm. The government, as I'll mention in a moment, makes some use of this in its statement to the Supreme Court because irreparable harm is, is also a, a, a consideration and, and Judge Henderson found irretrievable harm for purposes of finding that there was appellate jurisdiction but does not appear to find that there was irreparable harm for purposes of the of the kind of the inquiry which that, that I think the government has a fair point in, in trying to figure out the daylight there.

Judge Henderson then on, on the merits—so, so I, I should back up and provide some context, right. One of the core questions was, is habeas the, the right avenue for, for relief here? Or is it something else like the actions under the Administrative Procedures Act or the, the APA? The, the government's point has, has throughout, essentially been, it's gotta be in habeas and they're in the wrong place. The plaintiffs are filing in D.C.; they need to be filing in Texas.

Judge Henderson sort of seemed to follow what Judge Boasberg had done, which is sort of asked the plaintiffs below, are you still standing by your habeas claim, or do you, do you, are you looking to dismiss it? Plaintiff said, no, we don't need to stand on habeas. We are, we're fine going under the APA. And that's how Judge Boasberg went forward, and that's how I read Judge Henderson to have ruled as well.

And, and that then takes you to the merits of this Alien Enemies Act, claim this claim that you have to as, as has already been amply discussed, not today, but, but in background, of course, the president makes the, the proclamation that there is in fact a, a state of war or, you know, incursions and that that is carried out by the particular Tren de Aragua group.

So that's where judge, judge Henderson takes issue with, that there's not an invasion. There doesn't appear to be an incursion, though I don't think she definitively rules on that and ultimately disagrees with the governments, disagrees that the governments can, can make its showing that is the likelihood of success on the merits.

Judge Millett by contrast, doesn't think that there is appellate jurisdiction. She doesn't see any exception for the typical rule that a TRO isn't appealable and in, in her view that that is sort of amplified by the government's failure to seek a stay in the district court. And she also would not find irreparable harm. And so those are the two that make up the majority that is the reason that the the TRO remains in place.

Judge Walker has the view that the government will then—and in fact has, has today advocated in its motion before the Supreme Court—he thinks that habeas is the appropriate mechanism, the appropriate way to, to bring a challenge that the plaintiffs failed to you know, to, to, to bring that in the, in the right place.

That said, I, I thought I heard an argument—and Roger, I, I know you listened. maybe you you, you either heard or you know, something about this—I thought I heard the plaintiff say or the counsel for the plaintiff say that they were exploring filing habeas in, in Texas, or taking some action there. That's not reflected in the opinion, that's not reflected in the, in the government's stay application before the Supreme Court. So I don't know whether that's true or, or not, but nonetheless, that's sort of another kind of curious angle here.

Ultimately, Judge Walker says, right, the, there's the, you're, you're in the wrong, you're on, you're in the wrong place on habeas. In terms of of irreparable harm, he has a sort of a broader—or I should say, in terms of appellate jurisdiction, he has a broader view that when something is going to significantly sort of imperil or undermine the, the government's action in, in a sort of the national security or foreign affairs context, that should be immediately appealable, notwithstanding the sort of procedural niceties. He also is not persuaded by the government's failure to seek, seek a stay below.

So you have this two to one ruling against, sort of split on questions of appellate jurisdiction and on merits. I, I think the, the White House had indicated that they were going to press this to the Supreme Court; wasn't obvious to me, at least in reading this, particularly with some of the procedural and jurisdictional hurdles that that was a, a, a savvy move, but the government has done that nonetheless. As I mentioned, they very much are kind of tracking what Judge Walker had, had, had, had argued that, that they're, you know, the plaintiffs are all in the wrong place. And they, they, as I, as I mentioned a moment ago, they kind of make the irretrievable versus irreparable harm.

It's interesting, a lot of that stay application—on my reading of it, and I'd be curious for others who, who who've looked at it—really seems to target. Judge Henderson a couple times it calls her the deciding vote. I mean, of course they're, they're all sort of deciding votes in, in some respects, but they, but they really kind of take her to task for failing to land decisively anywhere, so it'll be interesting to see; as, as Roger mentioned the plaintiffs have until Tuesday at 10:00 AM to, to respond, so we'll see, you know, what, what they, they come back and, and argue.

But it, it could be that these procedural hurdles, they give the court a bit of an out—the Supreme Court, a bit of an out if they wanna take it—because otherwise there's some very knotty and complicated, k-n-o-t-t-y and complicated underlying merits questions here,

Roger Parloff: And, and maybe I should just explain—the five named plaintiffs are in Texas at the moment. That's why Texas, and there's some law to the effect that habeas has to be brought where people are confined and, and, and that's that theory. The def, the plaintiff's theory was that they were mainly filing under the Administrative Procedure Act, and, and the defendants are located in D.C. and that was their theory for filing in D.C.

Benjamin Wittes: Alright. Alright. Any further thoughts from anybody on J.G.G before we turn to David Cole and the and the various long dead immigration authorities that have been revived? Alright, let's do that.

David, when I first met you in, I wanna say 1992, maybe 3, you were counsel to a group of eight Los Angeles Palestinians who had been rounded up, were slated for deportation under the same provision of the statute that is now being used in the Khalil case. And that case, as I recall, had been going on for five or six years by the time you and I met and proceeded to go on for most of our subsequent acquaintance. It finally resolved sometime, it was long after 9/11.

So tell, give us the two minute history of the L.A. Eight, and then tell us about how surprised you were or were not when you heard that Mahmoud Khalil had been—they had attempted effectively a summary deportation of him on the same basis.

David D. Cole: Sure. Can I say a word about J.G.G just before we jump into that?

Benjamin Wittes: By all means.

David D. Cole: Yeah. I mean, I, you know, I, I think we are living through you know, unprecedented times in many respects. But in, in some respects, a, a, a lot of what Trump has done has been done before, but it's been done in real emergencies. In World War II, we, interned the Japanese, we summarily executed saboteurs; in World War I we, we went after speech people who spoke out against the war; in, in, in the Palmer raids, we picked up thousands of people using immigration and guilt by association charges but that was in response to a series of terrorist bombings; you know, in after 9/11, we, you know, instituted torture and disappearance and black sites and Guantanamo, but it was in response to a terrorist attack.

This time, the only emergency is one of Trump's own creation, and I think that that may bode well for the legal challenges. The notion that the Enemy Alien Act is in any way an appropriate measure for this gang that nobody ever heard of until, until the president declared that they had invaded us where there's no declared war and where—

Benjamin Wittes: Not just that they had invaded us, but that they are the government of Venezuela!

David D. Cole: Yeah, no, it's, it's completely, it's, it, it, so, so. I, I get it that, you know, in, in those prior periods of emergency courts didn't do that well—gore Matsu being, you know, the, the principal example, but they didn't do that well, but it's hard for a court to second guess the president in an emergency on what is needed to respond on national security. You know, it's easier when there's no real emergency and everybody knows it and, and, and so I'm hoping that that will be the case. That will be the case here

On the L.A. Eight, you know, it, it wasn't precisely the same. You know, it's a long time ago, Ben, so, you know, it wasn't precisely the same provision. They, it was the very similar circumstances in which these were mostly college students. They were picked up for advocating pro, pro-Palestinian views in, in, in public ways that the government didn't like.

But the provision they were actually charged with was, at least initially, was being members of a group that advocates the doctrines of world communism because they were sort of, alleged to be of supporters of a PLO faction that is Marxist, that has a Marxist kind of tinge to it, the Popular Front for the Liberation of Palestine.

We challenged that ground in, in federal court as a violation of the First Amendment, and we argued the First Amendment protects speech irrespective of the speaker, relying on the corporate speech cases that the Supreme Court decided in which it said exactly that. We said, if corporations have speech rights, then surely human beings who are living among us have the same speech rights, and you couldn't punish a citizen for that. So you can't deport a foreign national for that.

A Republican appointed judge agreed with us, struck down the McCarran-Walter Act provision as unconstitutional. The government then repe—Congress then repealed that provision, passed a new law that made it a deportable offense to be, provide material support to a terrorist organization, and the government then charged our clients with providing material support to a terrorist organization.

And then we litigated that for 21 years. 2008 was when the government finally gave up the case under, under George Bush. So it started under Reagan, continued under, you know, George H.W. Bush, continued under Bill Clinton, and finally George W. Bush dropped the case. After we had prevailed in the immigration court. It went all the way to the Supreme Court and, and, and many Ninth Circuit appeals in, in the interim. So, you know—

Benjamin Wittes: Okay, but, but, so, wait. These guys though, are not accused of material support either. They're accused of being hostile to the foreign policy or being annoying to the foreign policy of the United States.

David D. Cole: Yes.

Benjamin Wittes: Where does this statute come from?

David D. Cole: So this is actually, this is a provision of the McCarran-Walter Act that, that remains on the books. The provision we got struck down got repealed.

Benjamin Wittes: I see. So I was, I got the adjacent provision.

David D. Cole: Yes.

Benjamin Wittes: The adjacent provision, it's 20, it's like 30 years. David.

David D. Cole: Same law, different provision. This is the provision that gives the secretary the authority to declare that somebody's presence or activities in the United States poses a, a serious foreign policy, adverse foreign policy consequence, and, and, and by certifying so, deport the person.

And they, you know, he's invoked that with respect to two students at, at, at Columbia; a graduate, a, a graduate fellow at, at Georgetown; and it, it appears he's gonna continue to do, to do so. But you know, it, it's in, in all these cases, it is based on things they said, things they said, not material support, things they said that the president doesn't like.

And you know, I think there's really two issues in these cases. The one is, does the secretary of state actually have reasonable grounds to claim that a college student's speech on, on a single college campus actually poses serious foreign policy consequences? I mean, you know, the statute does not say the, the, the secretary of state can just deem it. The secretary of state has to have reasonable grounds.

And is that something courts can, can review? That's a, I think a serious question. Again, this is a situation where it is obviously not a serious foreign policy problem that Mahmoud Khalil, you know, said, you know, criticized Israel, that there's just no—it's, it's, it's, it's a laughable claim.

But if the courts say, well, we can't review it, or we have to give substantial deference to the secretary of state, then the question is, can the go, can the government have a power to punish someone who is protected by the First Amendment for clearly First Amendment protected activities that they could not take any action against a U.S. citizen for simply by giving the secretary of state this very, very sweeping and broad power, and I think that raises serious First Amendment questions.

Benjamin Wittes: Right. So I'm, I'm interested in how—first of all, let's just explore for a moment the scope of the principle that you're articulating, because I think it's one that you and I talked about a lot 25 years ago, and, but I think a lot of people have never thought about it.

And so if you say to somebody do lawful permanent residents have First Amendment rights, most people would say, yeah, of course. But then if you say, can the secretary of state revoke the visa of somebody because he thinks they're a threat to our foreign policy—which a law which has never really been struck down—that kind of says you have first amendment rights before a court, but if the State Department doesn't like you for some reason, they can revoke your visa, even if your visa is a lawful permanent resident.

So I'm curious, first of all, just explain how the doctrine reconciles that, because it seems pretty hard to reconcile. And secondly, what do you think when the Supreme Court finally gets this—which I think they will under this litigating posture—how do you like the chances of Mahmoud Khalil before, under this statute, before this court?

David D. Cole: Yeah, so the first question is, you know, do foreign nationals have the same First Amendment rights as citizens? And the Supreme Court has not addressed that question. The lower courts have, including in that case, that we litigated many, many years ago, and they have generally said yes. And obviously in many situations they clearly do.

I mean, imagine that a, a per, a green card holder burned an American flag. You could not prosecute that person under the Texas flag statute that the Supreme Court held was unconstitutional because you can't single out flag burning and seek to punish it consistent with the First Amendment. You couldn't, you couldn't prosecute a citizen for that; you couldn't pros, prosecute a foreign national for that; you couldn't impose a, a, a single penny sanction on a US citizen for that.

Can you deport a foreign national for that, particularly someone who has a green card permanent residence here? You know, I think the answer should be no, that if the First Amendment protects all people within the United States and you the, for this speech, you could not punish a citizen in any way, shape or form, you also cannot punish a foreign national in any way, shape or form.

And, you know, but, and, and this, this statute was not meant to be kind of a blank check for the government to target speech it didn't like. It was really designed for a situation where you have like the, the leader of a, of a foreign government or a foreign organization that has, you know, has taken some actions that undermine our negotiation with, you know, the, the, it's, you know, the, the some foreign country in ways that really do have serious foreign policy consequences. And you could imagine that in some instances that would be based on speech, but the speech would be sort of, I don't know, evidence.

The court is—the, the ultimate ground would be there are serious foreign policy consequences presented by this person's activities. It has been, it has almost never been invoked for a person in the United States. One time it was, and a district judge, Judge Maryanne Trump Berry—President Trump's sister—declared it unconstitutional under the First Amendment. And then it got mooted out on appeal. So it didn't, didn't go up any further.

So, you know, I think there's a strong First Amendment argument against it. This is a Court that is very good on the First Amendment. No court in our history has been very good on immigrants rights. So, you know, anytime you're, you're, you're pursuing immigrants First Amendment rights, it's gonna be tough.

But again, because this is such a, a sweeping a, a, a misuse of the authority, I think it's a pretty good case to challenge the propriety of punishing college students for their speech by claiming that it undermines our foreign policy.

Benjamin Wittes: Alright, so, one additional question just about the environment before we move on. Does it change the calculation at all and does it change the litigation if the revoked visa is a student visa? Because it seems to me there are a lot more if you're, if you're going after—if you're the administration and you wanna get rid of a whole lot of people who were involved in protests related to the Gaza war, a lot of those people aren't lawful permanent residents; they're, they're here on student visas. And how does it change the analysis if you say, simply refuse to re renew somebody's student visa or revoke them, otherwise leave the facts the same. 

David D. Cole: Yeah, so I think it's, it's more it feels more outrageous when it's applied to a lawful permanent resident, someone who has been given the right to remain here permanently, but the, actually the principle is the same.

The, the, the, the Supreme Court has said, for example, that the due process clause, which protects persons, protects all persons within the United States, whether citizen or non-citizen, whether here legally or illegally. So even someone who's snuck into the country and is illegally present, once they're here, they are entit–, they are a person, they are entitled to due process before you remove them.

And so, and the First Amendment doesn't talk about persons. The First Amendment says the Congress shall not abridge the freedom of speech, but because it talks about speech and does not identify, it doesn't limit it to the speech of citizens, the Court, the Supreme Court has said, therefore it protects inanimate entities, corporations, because it doesn't matter who the speaker is, we protect the speech. And on that same reasoning lower courts have held that it protects all immigrants in the United States, including illegal immigrants to the United States. They can be deported for being illegally here, but they can't be punished for their speech.

So, you know, and, and, and if you're talking about renewing a student visa and the student is out of the country, well, once you're out of the country, a foreign national does not have First Amendment rights. But within the United States if it's a deportation of someone in the United States, First Amendment applies whether you're a green card holder or a student visa holder.

Benjamin Wittes: Alright. We have so far three of these cases involving LPRs, I assume we're gonna get a bunch involving student visas.

David D. Cole: Yeah.

Benjamin Wittes: What do, what is the current posture of the litigations involving them?

David D. Cole: Yeah. Well, it's, it's all very, very early stages. So Khalil's case—Mahmoud Khalil is the Columbia student, the first one arrested, the Columbia student. They immediately took him down to Louisiana to try to get, you know, Fifth Circuit venue and the, the New Jersey—he was in New Jersey when he was picked up, and so the federal court in New Jersey today heard argument on whether he should be brought back to New Jersey and whether he has the right to challenge the government's actions in federal court in New Jersey, including his detention. Heard argument, you know, took, took it under advisement. So we don't know what's gonna what's gonna happen there, but he does have a federal affirmative challenge to his detention on this ground seeking to challenge the constitutionality.

Then you'll also have a student, I can't remember the first name, but her second name is Chung, another Columbia student who the government has gone after has sought to put into deportation proceedings, has invoked the same provision. She went into court, before she was actually arrested and sought an, a TRO ag against them using this in her case. And that is pending in the Southern District of New York; the judge granted a TRO, but basically just let's, let's keep the status quo; I'm not sure I have jurisdiction; I'm going to give the government the opportunity to make jurisdictional arguments.

There's another case involving a guy named Momodou Taal, who came from Cornell. He challenged his actions, I think, in the Northern District of New York. A court yesterday issued a decision saying that, that that judge found that the federal courts don't have jurisdiction, at least in a case where the government has actually, you know, proceeded with the proceedings. You have to go through the immigration process, which involves a immigration trial and an immigration appeal, and only then can you go to a federal court on a petition for review to a court of appeals, and only then can you really challenge the constitutionality of the, of the provision.

And then there's been an affirmative pre-enforcement challenge brought by American Association of University Professors and a number of other organizations that are seeking to challenge the policy of using this tool inappropriately to suppress speech on campus on behalf of lots of people who whose speech rights are chilled on, on, on campus and particularly on behalf of people who want to hear the views of the students whose rights have been chilled on campus. And that's at the very early stages.

So, you know, it, it—you might be right that this, this will go to the Supreme Court swiftly, but it's also possible that the federal courts say, we're gonna let the immigration courts deal with this first, and then that's a, you know, that process takes, can take, as I know, can take years before you get to the court of appeals. So it is no guarantee that it gets up, gets teed up all that quickly, and in the meantime, it is having a, you know, extraordinary chilling effect on on student protest by, by immigrants across this country.

Benjamin Wittes: Yeah. So one last point on that. One thing that you were able to do for the L.A. Eight—relatively quickly, as I recall—is get them paroled. I think it's possible that the worst possible outcome here for Mahmoud Khalil is you end up stuck in immigration court and they're not willing to parole you or, or bail you. The guy is not purported to be any kind of a threat. He's not alleged to be anything other than somebody who spoke at Columbia protests. Any, any plausible short term possibility for a bail or a parole?

David D. Cole: Well, yeah. Yeah. I mean he, you know, that's what, that's what they're seeking in the federal court and they can also seek that in immigration court. The government will obviously—you know, once the government claim, you know, claims you are a threat, they have to act like you're a threat. So they will oppose any form of release in the interim. But a judge has the power to, to order it and, and this seems like a a particularly appropriate, you know, instance in which to release him.

I, I will say if you, if the, if the foreign national is detained, the cases go more quickly. If the foreign national is out, I mean, we, it was critical in our case that we were able to get our folks out within a month of their initial detention because you know that, because then, you know, time was on our side. Our, our clients were here.

Benjamin Wittes: Right. The long, the longer they hang out in L.A. and grow up and get jobs and they have kids and—

David D. Cole: Exactly.

Benjamin Wittes: All of a sudden they don't look like terrorists anymore.

David D. Cole: Exactly. Yeah.

Benjamin Wittes: Alright, let us move on. Speaking of the Ninth Circuit, Scott, you have an update for us on the refugee resettlement pause case that everybody's probably forgotten about by now.

Scott R. Anderson: It's a very quick update, but since we've been tracking this case a little bit, we thought we’d mention it. Folks may recall there's a preliminary injunction from the district court that essentially stopped the halt in the refugee resettlement program.

The Ninth Circuit issued a partial stay of that preliminary injunction on the 25th, so I guess that would've been I think Tuesday, which essentially said that immigrants—pardon me, refugees—who had been given conditional refugee status prior to the executive order, putting the pause on the refugee admissions would be still allowed in the stay, would remain in, pardon me, the preliminary injunction would remain in place for those individuals, but otherwise stay the preliminary injunction.

So split the baby a bit there, and that's notable for folks as the preliminary injunction had been seen as a success for restoring the refugee program. Now it's only partially restored for folks who had already gone through the process at the time. The, the block had been put in place, it, it's now stopped for the others, at least until the final resolution of that issue by the Ninth Circuit.

Benjamin Wittes: Alright, let's talk about the expedited removal case, David. This is one of a lot of cases that's gonna have Kristi Noem—new prison influencer, Kristi Noem—as defendant. What's going on in this case? You didn't even smile at my prison influencer joke.

David D. Cole: So, expedited removal is a, you know, is basically summary deportation. It is and it is, I think central—assuming they're not able to use the Enemy Aliens Act, which I think is likely they're not gonna be able to use the Enemy Aliens Act—expedited removal is actually critical to the Trump, you know, end goal of radically increasing deportations. Because, you know, we only have so many immigration judges and we only have so much immigration detention space, and those are practical constraints on how quickly you can increase the numbers on deportation. It just, you know, the, the judges are really, really backlogged, so, but.

Expedited removal allows the government to essentially short circuit the, the, the immigration process very, through very, very summary proceedings. And it's—Congress authorized it to be used for people who have been here for up to two years and anywhere in the country. But the, the executive branch has by regulation only used it for people who are caught within two weeks of crossing the border or a hundred miles of crossing the border. That's been the policy for a long, long time.

Trump sought to expand that the first time around, and we successfully stopped that at the ACLU. They're now, again, seeking to expand it. If they can expand it, they can, you know, then the fact that there's fewer immigration judges or not enough immigration judges is much less of a practical barrier.

And there are a number of challenges to the expedited removal; the ACLU has one in D.C., but this one is a case brought by IRA—the International Refugee Association or something, I, I can't remember the exact name of it—but it's a, it's a claim that they are seeking to apply it to people who have been paroled into the country.

Those are people who came to the border, asked for asylum; they didn't have time to adjudicate it right away; and so we parole them in, which means we allow them to come into the country under certain various conditions until such time as their hearing will take place.

Those people are not supposed to be subject to expedited removal, but the Trump administration has said that it intends to apply expedited removal to those people. And so that's the principal challenge, that it's not authorized by statute that's arbitrary and capricious to seek to apply it to those folks. I, you know, I, don't, I don't know what I, I don't think there's been a ruling but I, but correct me if I'm, you, you guys may know more than I, but that's, that's the issue in the case.

Benjamin Wittes: Alright. So before we move on from the immigration space, Scott do we, we have updates on the birthright citizenship cases, yeah?

Scott R. Anderson: To some extent, more about flagging things coming down the pipe. We have six different matters that are before the Supreme Court currently. One is J.G.G., which we talked about earlier.

Three of the others are different birthright citizenship cases that are all being briefed together or briefed in identical fashion, I should say, by the government. These are all challenges, not to the merits of the birthright citizenship holdings in the lower court. So the government's not conceding that.

These are challenges to the use of nationwide injunction by the district courts and the fact that they've been mostly upheld by appellate courts in the Ninth Circuit, Fourth circuit and First Circuit. The different justices—all these are emergency motions that have gone through different justices. But just as the government has essentially filed identical briefs in all three matters they set briefing up for April 4. Not the most expedited timeframe but we just thought worth flagging.

We have a big wave of Supreme Court decisions coming next week or the week after. And half of them are these birthright citizenship cases focusing specifically on the use of nationwide injunction. So we're likely to see some action in that in the week to come.

Benjamin Wittes: And Scott just remind me on nationwide injunctions, is, is there any reason why I should be, other than cynical about people's views of—like, it seems to me conservatives, like nationwide injunctions when they involve Matthew Kacsmaryk, you know, enjoining the FDA from approving mifepristone 20 years ago, and liberals like nationwide injunctions when they involve preventing the government from rounding up people who may or may not be here illegally. But there's a—it doesn't seem like, like why is the Supreme Court choosing now to be riled up about nationwide injunctions? It's not like this is a new issue.

Scott R. Anderson: It's not, and it's not clear that they are getting riled up about it. If anything, it seems quite the opposite. You know, the administration came in with these requests over the last week of—I think a few came in the week prior—and they set this briefing date as April 4 to get the response briefs in. That's not exactly an expedited timeframe.

Benjamin Wittes Gotcha.

Scott R. Anderson: I don't if it shows a lot of enthusiasm to take on this particular issue and they don't have to take on this issue at this phase. You know, some justices may want to, some may not want to. But they don't, you know, have to decide it. This is a petition for them to, to exercise jurisdiction. And so, there's a good chance I suspect that they don't ultimately pass the buck, but they are hearing briefing on it at least.

Benjamin Wittes: I would just like to say that all over a certain district court in Texas, people are terrified that that the government is gonna prevail on this and their ability to regulate all of, you know, activity all over the United States is gonna be destroyed. Alright—

James Pearce: Ben, can I, can I just jump in with one comment on please or universal injunctions? One thing I didn't mention in, in the J.G.G case is that a part of the government's stay application focused on Judge Boasberg's decision to certify a class, and they, and the government calls that essentially a nationwide injunction through the back door.

I think later, we'll, we'll talk about another case up at one of the six that Scott mentioned outside of birth citizenship and J.G.G where the government is sort of really beating the drum. And so it's, it's as much the, this administration now you know, arguably for partisan reasons that are really trying to tee it up to see if they can find a receptive audience at the court.

Benjamin Wittes: Alright. I just want to be clear that I, like the Trump administration and most district courts, believe in nationwide injunctions in all cases, in which I agree with the injunction, and I find it outrageous that any district judge would seek to impose an order that I disagree with beyond the scope of the four corners of the case before him or her.

So, let's talk about non-immigrants who the government is going after, which is to say universities and law firms. David, you are joining us from a university. Have you guys been put outta business yet?

David D. Cole: We have not been put outta business yet, notwithstanding that our dean was courageous enough to push back very strongly when the U.S. Attorney for the District of Columbia Ed Martin wrote us a letter saying that unless we basically cleansed our curricula of DEI policies, he would refuse to hire anyone associated with Georgetown ever again.

But, you know, the, the, the much more serious challenges that that, that folks are facing are obviously the one at Columbia which Columbia tried to settle—we'll see whether it did the trick—but attempted to settle a week or so ago. $400 million held back for alleged failures to respond sufficiently to antisemitism by not cracking down harshly enough on student protests, even though Columbia cracked down more harshly on student protests than probably any other college campus.

And the, the action against Penn, where they have stopped, stopped, $175 million of federal funding because Penn in 2022 allowed a transgender athlete to swim on the women's swim team consistent with NCAA rules at the time. It did not cause any cisgender woman to not be able to swim on the swim team. The swim team was open to all, and so allowing a transgender athlete doesn't actually deny participation to any woman because of her, of her sex. And no one has complained about—no, no, no, no swimmer complained at the time. No Title IX complaint was filed. And yet 175 million pulled from, from Penn for this past action that was lawful.

And indeed at the time, and still today, many courts have said that denying a transgender woman the ability to swim on the swim team, that would be a violation of Title IX because that would be denying her the ability to participate because of her sex assigned at birth. Under Bostock, a case that I argued at the Supreme Court, the court held that that's sex discrimination under Title VII.

It would seem to follow, and many courts have said, that's also sex discrimination under title under Title IX. So Penn has not responded yet in a formal way. And so we don't know what Penn will do, but universities have been, have been extraordinarily scared. They are wiping clean any mention of DEI anywhere on their websites, even though that's not required by any law.

And just yesterday there was a letter published by 80 law school deans condemning the Trump administration's targeting of law firms. And that sounds great, right? 80 law firm, 80 law school deans are willing to come out and, and, and and say that what the Trump administration is doing is wrong, until you look at the letter, and you notice who didn't sign the letter.

And of the top 14 law schools in the country, only three deans of those schools signed the letter. Erwin Chemerinsky at Berkeley, the dean at Cornell, and Bill Treanor here at Georgetown. Not Yale, not Harvard, not Penn, not MIT—you know, well they don't have a law school—not, not University of Chicago, not Stanford.

And, and, and they, you know, they're, everyone is, is running scared. So it's, it's it's a, it's a very I think very precarious time. And you know, it's, and it's, it feels to me like part of, part of the plan here is target places where there might be criticism, there might be opposition, and suppress that opposition. Go after universities, go after students who might come out and protest, and of course, as we've seen now go after lawyers.

Benjamin Wittes: So Roger, Columbia sought to settle, and, but there's a lawsuit anyway over what's happening at Columbia. What's up with that? Who's suing and what is their claim that they get, that they have standing over? What happens at Columbia that Columbia is not complaining about?

Roger Parloff: Yeah, I, I just glanced at this in at, at the last minute. This is called American Association of University Professors v. DOJ. I don't have good answers for you on why this isn't moot or how, or, or how the standing works.

It's, it's that group and the American Federation of Teachers, and it takes issue with the $400 million cancellation and, and the cancellation was conditioned on, or they would lift it if Columbia would, punish certain students and abolish certain programs including the Middle East, South Asian, and African Studies Department, or, or at least put that under academic receivership. I, I'm not sure what that means.

But I'm afraid—and it's based on First Amendment, Administrative Procedure Act, Tenth Amendment spending clause—but I'm afraid, I, I, there hasn't been a TRO request yet; it hasn't gotten very far. I think it was just filed Tuesday, so I-

Benjamin Wittes: Have any—sorry—have any of you guys looked at this complaint or have thoughts about what this third party standing theory might be?  Alright then we will, if and when anything comes of the case, we will talk about it then.

Alright, let's talk law firms, because, you know, who knew that the vanguard of human liberty was gonna be stand with Perkins Coie, stand with, you know, Wilmer Cutler Pickering, but there we are.

So Roger we were all despairing that law firms except Perkins Coie didn't have the, the intestinal fortitude to challenge executive orders that targeted them, and they were as spineless and gutless as Columbia University. And then yesterday and today, two law firms that we had all been worrying about: Wilmer Hale—turns out to be represented by conservative super lawyer Paul Clement, who we discussed the other day for his amicus brief in Judge Ho's court. They sued within 24 hours of, of an executive order targeting them—and of course the—sorry—

David D. Cole: Jenner & Block,

Benjamin Wittes: Jenner & Block, right, sorry. Jenner people it's not, it's not that I forgot you. I just had an aphasia moment. They're suing as well. So do we now—first of all, what do these complaints look like, Roger? And secondly, do we now—is, is the world of law firms’ supine response a little bit more complicated now that we have the Paul Weiss's on one hand, but we also have the Jenners and, and Wilmers on the other hand.

Roger Parloff: Yeah, we have three that are suing now. And in fact, these, I guess, Wilmer Hale's TRO hearing started about a half hour ago, and Jenner & Block's TRO hearing will start in about an hour.

Yeah, five firms have been targeted. The first was Covington, and it's a little sui generis 'cause they were only hit with their security clearances were taken away. The next four are almost identical. It's a, a sort of a template. It's a, it's an extraordinary template. It's Perkins Coie, Paul Weiss—which as you mentioned settled—Jenner, and Wilmer Hale.

Benjamin Wittes: I just wanna say, but, but just as a matter of legal history somebody needs to look into this, whether we have ever before had cut and paste executive orders? I think the answer is no. That there's—I don't, I've never, certainly never seen the White House issue like verbatim the same orders about like—maybe the State Department does it with terrorist designations, but

Scott R. Anderson: Yeah, like national emergency declarations are like all identical..

Benjamin Wittes: Yeah. But like the executive orders, come on. You gotta get some original language in there. Sorry, Roger.

Roger Parloff: Well, there's a lot about these that are sui generis. I'm pretty sure. The, the first section is devoted to defamations of the firm and of one or two partners, or usually former partners. And they are accused of, no, they aren't accused—they are found to have, you know, committed some wrongdoing that no court has ever found them to have committed and no ethical bias–

Benjamin Wittes: And that sometimes involves fictitious events.

Roger Parloff: Yeah.

Benjamin Wittes: It's not even that they're not guilty of something, sometimes the events didn't happen.

Roger Parloff: Yeah, that's true. And and then as a, and for example with Wilmer Hale, the target is Mueller. With Jenner & Block, the main target is Andrew Weissman. By the way, Andrew Weissman, you know, a, a part of it is he was on the Mueller in the Mueller committee, but they also mention like stuff, something he did on the Enron task force, you know. That is 20 fricking years ago, and so far as we know, he has never been found to have—anyway, and none of these were things, you know, he wasn't at, at this, at Jenner then.

With Covington, it had to do with—well, that's separate, but the work pro bono work they did for Jack Smith—Paul Weiss, it was about Mark Pomerantz again, and, and another partner who was on the Mueller investigation. And Perkins, it was Marc Elias, Marc Elias, and, and also part of it had to do with the hiring of Fusion GPS—that's 11 years ago. And and of course some of these—you know, his grievance about GPS, Fusion GPS, he did bring a suit about that, and it was thrown out in about six months, and he was fined almost a million dollars for frivolousness.

So, anyway, so there will be a, a first, there's the indictment sort of paragraph in indictment and conviction sort of paragraph. And the second one pulls away their security clearances. The third paragraph, it pulls away—it, it, it's is gonna deprive them of federal contracts, but more than that, it requires people who, anyone who gets a federal contract to disclose do you do any work with this blacklist. Perkins, you know, Paul Weis, this, this. And the, the threat is, and of course this is confidential information—do you, are you represented by, do you—and the expectation is that you'll lose that contract too, even though it, you, you, you didn't, the client will lose it, even though it's not necessarily through the blacklisted firm.

Section four has to do with we're gonna go after your DEI programs, and section five is we're gonna deprive you of the right to step into a federal building—all of your employees, all of your employees. So federal courthouses, you know, the PTO, the copyright office, SEC, Federal Trade Commission, you know. Perkins works with 90 federal agencies. It also says, we're gonna ask agency heads to tell all to all, all their employees, not to engage with anyone in your firm. So it is—there's nothing like it.

And now Perkins did get a TRO. I think significantly, the, the, the government—it, it always pains me to say the government, I, I can't quite wrap my mind around this is the DOJ—but has not tried to appeal it the way it has maniacally tried to appeal all the Humphrey's Executor type cases because they know this is root and branch unconstitutional.

But anyway, the TRO issued March 12, I think—and unfortunately it's, it's a good TRO, but she read it into the record so most people haven't read it—and it finds that this template for Perkins violates multiple First Amendment principles. It's discriminatory retaliation, it's viewpoint discrimination. I'm sure. I'm sure. David can do this better than me. Some—there's a couple due process claims and there's a Sixth Amendment right to counsel it undermines.

She also points out in—I think in all of the complaints the law firms have pointed out that what this is for all intents and purposes, it's a bill of attainder. A bill of attainder is however done by the legislative branch; this is the executive branch, so she's not finding it, but it does everything that a bill of attainder does.

And she, here's what she said, in short: executive order, such and such is like a bill of attainder, a, a punishment for a singled out entity deemed to be disloyal without any formal investigation, trial, or even informal process. This may be amusing in Alice in Wonderland, where the Queen of Hearts yells off with their heads at annoying subjects and when the Queen of hearts wants to impose a sentence before a verdict, but this cannot be the reality we are living under. But it is, it is the reality that we are living under.

So these are, that's about where we are at the moment. I, I think the, the real problem is that as onerous as these things are, I think the reason that people are settling is that if you are on the blacklist, even if you win a TRO, you're still dealing with the Trump administration, which is fundamentally you know, not gonna play fair. And, and your corporate department is wondering, well, we need, you know, if we're gonna do a merger or acquisition of any size, we need to get DOJ’s sign off. Are they really gonna do it with us?

And, and, and the client is wondering should I really get Perkins? I mean, I, I, you can't—they're gonna—you're blacklisted. Same with, you know, a criminal case. I'm gonna hire you to negotiate with the DOJ. Same with a patent, you know, I'm gonna hire—so it's, it's devastating, and, and I think the ones that are settling—Skadden apparently is settling today—you know, Paul Weiss, we think of, I think of it as a litigation powerhouse, but apparently its corporate side is now most of the money, and I think where the corporate side is the, is the money maker, it's, it's sort of too devastating, and they can't—they're folding.

Benjamin Wittes: Alright we've got about 25 minutes left. I wanna get through all the cases, so I'm gonna ask you all to keep answers brief.

Speaking of Judge Howell, she was asked to recuse in a motion that frankly, James read like one of the motions to get rid of Judge Chutkan, or, or what's his name in, in New York, but–

Roger Parloff: Kaplan.

Benjamin Wittes:  –but we don't usually see from the Justice Department. What, what do we know about Judge Howell's? I mean, she reacted pretty sharply to it. What can you tell us about Judge Howell's willingness to step aside?

James Pearce: She was not willing to step aside, but I wanna, I wanna pause for a moment on, on the sort of the setup, the way you set that question up, because I think that is as telling here as Judge Howell's actual order was.

You know, if everything that Roger said about the attacks on law firms weren't bad enough, I think it's important for everyone to, to know that to, to move to recuse a judge requires getting permission from the solicitor general's office in in the Justice Department. And by and large the solicitor general's office is extremely parsimonious about that, for good reason, right? I mean, the government is about as repeat a repeat player as you can be.

And so, you know, unless a judge has really done something beyond the pail—and the kinds of examples you might see is in a criminal case, the, the area that I know best where maybe a court of appeals has said, you cannot give this defendant this sentence, it is statutorily forbidden and then a judge does it anyway, perhaps multiple times—that's the kind of case where the, the solicitor general's office will sign off.

So, so not only was there sign off here, but as you, as you mentioned, Ben the actual motion itself was written in about as vituperative and ad hominem of fashion as one, one might think. And, and honestly, Roger, you said it pains you to, to, to say this is the government—having been recently in the government myself, it was, it was almost unrecognizable as a government pleading.

Now Judge Howell—I, I thought could be pugnacious—was forthright and very carefully in a, in a 21 page opinion, very compellingly explained that all of these ad hominem reasons, which often had to do in fact, I think across the board well with one ex, with one exception, had to do with statements she made in court—the one exception was a statement that she made in a speech— explained in context how they were all entirely appropriate and befitting of a judicial role and did not warrant her recusal. I don't believe the government has appealed that; I sure hope it won't.

But again, it's just kind of another marker of the state of play in the Justice Department, even separate from what the administration itself is doing.

Benjamin Wittes: Alright, let's talk federal funding freeze. Big, big issue in New England for some reason. Scott and James, what we got going on there?

Scott R. Anderson: Well, I'll start with one case where we've seen, again, another action, the Supreme Court. This is case number five of six that we're counting off, waiting with Supreme Court this week. This is U.S. Department of Education v. California, originally California v. U.S. Department of Education. This relates to a TRO that was given in the District of Massachusetts that directed the reinstatement of various federal education grants that a number of states relied on.

It was upheld by the First Circuit. The government is now seeking to try and get an administrative stay and otherwise reverse from the Supreme Court to stop the the TRO from being remaining in place. The TRO would essentially require the government to keep paying out these funds and the government raises objections to that, essentially saying that that is inflicting irreparable harm on it.

The arguments look—and also I should note that the dispute should be channeled through separate procedures for grant and contract disputes—those arguments sound familiar. That's 'cause they're very similar to the arguments the government trotted out in the AIDS Vaccine Advocacy Coalition case relating to foreign assistance cutoff Supreme Court considered about two, three weeks ago, where ultimately the Supreme Court denied or declined to intervene and stop a TRO that was compelling additional payments.

This case is arguably, maybe you could see a ways it's friendlier; it's certainly less egregious in ignoring the TRO issue by the lower court than USAID was in the AIDS Vaccine case. There's a, another preliminary injunction that's redundant with it; it causes some confusion; it's a little bit more tailored in its action.

My sense is that this is an effort to try and see if they can peel one or two justices away to join the four dissenting justices that would've been willing to invalidate the TRO in the AIDS Vaccine case on the slightly friendlier facts. So we'll see what happens with this. Briefing was scheduled due by 4:00 PM today, so it is in theory in the docket now although I haven't obviously had a chance to read it since we've been online. But we're likely to see action in this case as well coming out of the court next week or the week after.

James, I think you have the other case.

James Pearce: I do the second, the second stop on the New England funding freeze Circuit is a decision that the First Circuit issued on Monday. This is a case styled New York v. Trump; it's actually 22 states that brought challenge on Jan. 28, I believe, the day after the Office of Management and Budget, OMB, issued a directive that that directed a pause in all federal sort of spending and, and grants that were in service of certain objectives that the directive noted that executive orders sought to prescribe or attack—DEI, the Green New Deal, things like that.

The challengers obtained a temporary restraining order. They, they brought their challenges under the Administrative Procedures Act; again, the APA, essentially saying there was no statutory basis to do this, and it was also arbitrary and capricious in the sense that there was no justification for, for taking these steps.

The, the district court granted a TRO, the government sought to appeal that. We sort of had a similar discussion with J.G.G. Ultimately the government voluntarily dismissed that; the district court ruled and issued a preliminary injunction for the challengers, and the first circuit just at the beginning of this week, upheld that finding that the challengers are likely to succeed on the merits and that any cutoff in funding would, would in fact result in irreparable harm.

So we'll see where, where we go next from there. But that is sort of another setback. They, they, the, the, the government may, as Scott just mentioned, may go to the Supreme Court again, or seek to consolidate this, but a, a preliminary injunction upheld by the First Circuit favoring the challengers to the government's action.

Benjamin Wittes: Alright. I just wanna note that my note sheet here has for the next two headings “federal firings” and “agency dismantling.” So that gives you an idea of like, where we are in the world, that those are whole subheadings.

Alright, agency firings, we've got probationary employees been dismissed, we've got independent agencies, we've got inspectors, generals. Go guys, what how, how are we doing in, in firing all the federal government officials?

Scott R. Anderson: Well for probationary employees it has been a relatively good couple weeks. But that good run may be coming to an end, we'll see.

This is the sixth Supreme Court case. This is a case Office of Personal Management v. AFGE. Can't remember exactly what that stands for. It's government employees, it's one of the employee unions for government employees. This case is before Judge Alsup. There's been, we've talked about it a fair amount 'cause there's been some dramatic developments in the past few weeks.

But the key takeaway is Judge Alsup, while he initially denied a TRO stopping the removal of provisional employees in a number of federal agencies, ultimately reversed himself saying that he was wrong, to have concluded that he lacked jurisdiction, initialed the TRO on the basis that his understanding is probationary employees actually cannot go through MSPB proceedings and issued a preliminary injunction that was appealed, but ultimately upheld by the Ninth Circuit 2-1, that dissenter focusing on this jurisdictional issue.

And the Supreme—pardon me, the government has now moved to the Supreme Court to seek an administrative stay by the US government, while also essentially arguing look, we need to intervene and squash this preliminary injunction as well, pending the appeal administrative, say, pending the appeal of that. Their basic arguments are essentially that there's no standing in this case; there's a familiar argument where they essentially argue that these various groups involved don't have any direct stake to be able to bring these sorts of claims. They argue no jurisdiction, essentially arguing that Judge Alsup was wrong to have changed his mind; he was right the first time around, these are all just employment disputes that need to go through specialized statutory procedures. This is the Thunder Basin test that we talked about in these discussions in the past that governs that.

And then the third argument which dovetails with something we discussed before, is that essentially this is too broad a remedy. It's similar to the nationwide injunction objections. Essentially they're saying, look, he's reversing these rules for these huge federal agencies nationwide, although notably it's just a handful of federal agencies, not all covered by this case, as I recall. Regardless, Supreme Court has scheduled briefing for this next Thursday, so this is the sixth one we can expect decision on or action on likely in the next week or two. That is of course, one day before the nationwide injunctions cases in the birthright citizenship case, which have that dovetail at the end.

We may already be seeing some effect of that in the other case, relation to probationary employees, this is State of Maryland v. U.S. Department of Agriculture, currently in the Fourth Circuit, where they denied an effort to, TRO, they've got a hearing scheduled in three—basically there's a, an effort to try and stop a TRO in the Fourth Circuit.  The Fourth Circuit refused to do that basically on the logic that the district court was scheduling a hearing to resolve the preliminary injunction measure, and they, the court held that hearing the 26th, that'd be Wednesday, extended for a number of days, the TRO, so they could get additional briefing on one additional issue in regards to preliminary injunction; saying that they're inclined to grant a preliminary injunction, but what do they not want to grant nationwide preliminary injunction.

So they're seeking additional briefing from the parties who are states in this case where federal employees are live, are housed, will take public services or rendered unemployed and have other effects in those states. They've sought additional briefing, seeing what sort of injunction they can issue that is not just a nationwide injunction, but will address all the harms alleged by the plaintiffs in this case. It's an interesting question. I'm interested to see what briefing we get out of it. 'cause it's hard to imagine what sort of injunction you could wrap that isn't close to nationwide when you're talking about federal agencies in I think over 20 states that are a party to this litigation.

This is particularly notable though, 'cause this is actually the litigation in which the nationwide TRO had previously stopped most probationary employees from being fired and had caused them actually to be reinstated because this applied to nearly every federal agency, whereas the prior case applied to a subset of them. So the resolution of this will be vertically relevant for many, many probationary employees throughout the federal government.

Roger, I think you've got the next case here about inspector generals. This is a Storch case.

Roger Parloff: Okay. The inspector generals, we, we've talked a little about, and, and James will talk more about—we, we talked in the past about Dellinger, we talked about Wilcox and Harris. These are variously situated principal officers, and, and, and the issue there is whether, you know, the statute says they can't be fired without cause and, and the claim is that the Constitution gives the president the right to fire at will without cause.

Here the IGs actually are not—they don't have the benefit of that sort of statute. It says that you don't need cause to fire them, but all you're supposed to do is you're supposed to give Congress 30 days notice before you do fire them. And then you have to give a case specific rationale—doesn't have to be a good rationale, you just have to go through the motions. And here—and also it's a, a relatively low level officer. If it's an officer at all, there's an issue. Maybe it's not an officer, maybe it's just a government employee.

Anyway Judge Reyes held a hearing yesterday—Ana C. Reyes—she seemed likely to grant the TRO—I mean the, it's actually, I think it's up for a permanent injunction, it's, it's or, or at least, it's either that or a preliminary injunction. But she won't rule quickly.

Benjamin Wittes: And James.

Roger Parloff: Yeah.

James Pearce: Yeah, just a, a, an update. Roger alluded to it; the multi-member board cases, the, the NLRB, national Labor Relations Board and the MSPB cases—if the outlook seems rosy for the probationary employees and potentially the, the fired OIG folks that Roger just talked about, it, it looks decidedly less so, for Gwynne Wilcox on the National Labor, the NLRB and Kathy Harris of the MSPB.

There was argument that was that this group discussed last week. The government filed a merits brief today, and then about an hour and a half before we started recording the. the same panel that issued 93 pages of opinions in the J.G.G case bested itself and issued 114 pages of opinions in these cases.

The upshot of that is that another 2-1 split. Judge Henderson and Judge Walker, both would find the government likely to succeed on the merits and that there would be irreparable harm if the, the, the two challengers were kept in their position, and so, they are, are denying a stay pending appeal.

Moving quickly into the briefing schedule, as I mentioned, the government's already filed its brief. The government's brief I should add, makes it look likely like, you know, keep, keep chipping away at Humphrey's Executor to the point where it probably disappears; the Supreme Court will have the final word on that. But given, given time, I think that's probably enough of an update to give people a sense of, of where those cases lie at this point,

Roger Parloff: Because just one addendum is that the, the, I think either this week or last Trump did fire two members of the FTC, which directly presents the Humphrey’s Executor question—I, I mean maybe the FTC has evolved since then, but, but and those two have sued in a case called Slaughter that's just getting underway.

Benjamin Wittes: Alright, let's talk before we have to go. Scott I, my friend Mike Abramowitz had the ultimate nightmare which is like a, a, a Trumpy fever dream—you wake up and you find out you've been fired and replaced with Kari Lake. And so he did what any red-blooded American would do: he sued Kari Lake, and we have Voice of America litigation since we last talked.

Scott R. Anderson: We do, there's a ton of little developments happening all across the foreign assistance and kind of a broader sphere, which I'm just gonna try and do a quick whirlwind tour to save as much time as we can.

Abramowitz v. Lake is the big one about VOA employees contesting their dismissal. All we have really is a complaint in that that's a legal challenge filed on Wednesday. The government brief is due today, as I recall.

We had a little bit more development in another similar case. This is wi, excuse Widakuswara v. Lake in SDNY in another employee termination case—I don't think for VOA, I think maybe for Agency Global Media, I can't recall exactly. They had a hearing today in the case where we actually haven't seen it yet, at least as of last time I checked the docket. But the reporting out of the hearing was that the judge said they were likely to issue a TRO of some sort and was simply drafting the opinion, so that's good news for that set of employees affected by that decision.

We've also seen some interesting developments to other cases related to funding, also related to the unwinding of U.S. Agency for Global Media and related agencies. In one case, we saw Radio Free Europe sue to get their funding back on the basis their funding was being withheld—like a lot of the other funding, foreign assistance cases, other domestic spending cases—but there we actually saw a TRO get granted. And the government almost immediately moved to reinstate their grant the next day, filed a letter saying the grant had been reinstated. We don't a hundred percent know why.

And I had initially been under the impression this is only true of Radio Free Europe—we saw the exact same thing happen in another case that another group had filed a lawsuit over, Open Technology Funds v. Lake, which is about a kind of an internet freedom nonprofit that had a number of grants—or organization, I don't know if it's a nonprofit. They similarly had their grant restored around the same time, and which has the effect of moving the litigation, although it's not clear it was a result of the litigation. So not sure what's happening there, or on the funding side, at least, of the big windup of U.S. Agency for Global Media.

In the USAID cases we essentially are seeing a number of actions, litigation continue in the variety of litigation actions, challenging the dismantling of the Inter-American Fund, the African Development Bank, the U.S. Institute for Peace. All of these cases, they've mostly been denied TROs, but they still have arguments usually on fairly technical grounds about standing and the ability of the individuals involved, whether or not their harms can be remedied by simply back pay and reinstatement down the line, in which case is that irreparable harm of the sort that you would get a TRO to reinstate them, but we're still seeing litigation go on in that case.

We've seen most of the issues now briefed, at least in Bream v. Marocco, that's the ADB case. There's a hearing on April 2 in the IAF case. So I think in the next week or two we'll get a more, a little more clarity about what's happening in those cases. Those cases are also the one where we saw the Justice Department issue a fairly novel, I think it's fair to say, Office of Legal Counsel opinion asserting implied constitutional authority on, on the part of the president to fill vacancies on the boards of those organizations. So that's another legal issue we'll see percolating up to the courts that at least one judge—Judge Leon specifically—called out as somewhat implausible I think even before the OLC opinion dropped in his denial of the TRO in that case.

Finally, the USAID cases and other foreign assistance cases, we mostly see the payments actually taking place under the AVAC case and the National Endowment for Democracy case. There's continuing to be back and forth and friction around the speed of payments and the reliability of payments.

We are also seeing we know in AVAC there's a possibility that some of the plaintiffs there may come back to contest the specific cancellation of their grants that was done during the, while the TRO was in place, but not being complied with ambitious—particularly faithfully, at least in my view. In that case, we are waiting to see whether they're gonna pursue legal action as part of that matter, an amended complaint or a separate legal matters contesting those cancellations. I haven't seen any action on that, but there's a deadline, I think coming up in another week or two that I believe has something to do with that, but I might be wrong—that's off my memory, I don't have that in my notes.

The other thing I would note here is also we have now at least the case about USAID employees fully briefed for, there's a motion for summary judgment before Judge Nichols in DD.C.; he had previously denied a TRO and preliminary injunction. USAID employees are continuing to contest both the dismantling of USAID and the dismissal of employees. I haven't seen an opinion come down to that, at least I had not as of two or three hours ago,.

But we do know if you're reading the news today that the Trump administration has announced USAID is being dismantled, folded in the State Department; they notified Congress to that effect about two hours ago. And my understanding is that all the remaining employees of USAID have been notified that they're being RIFed or subjected to Reduction in Force which might cause some friction with some of the issues in this litigation. So, I think we're gonna see a revival of that case that we haven't heard a lot from in the past few weeks soon.

And there is, of course, one last slightly oddball USAID case that's Does 1-26 v. Musk, my personal favorite caption of all these cases. James, I think you were tracking this one for us. What's going on there? Yeah, that's the case.

Benjamin Wittes: This, I just wanna say before James takes this on, this is this week's who is the administrator of DOGE installment. So, James, it's all you.

James Pearce: Yeah. Well, I, I wish there was some, some, clarification or, or something that, that would answer this age old question, but, but I, I fear that there's nothing from this, this particular case.

This was, we discussed last week. This is Judge Chuang in, in Maryland; challengers USAID plaintiffs and personal service contractors arguing that Elon Musk as the administrator of DOGA was not properly appointed under the appointments clause. He was an officer, but, but not there, there was no law that, that, that congressional law that provided for his appointment and that the unilateral dismantling of the agency fell afoul of the separation of powers under the Youngstown rubric.

Judge Chuang had issued a 68 page opinion about half an hour ago, a 68 page opinion, granting a preliminary injunction for the challengers. About 30 minutes ago, the Fourth Circuit just stayed that preliminary injunction issuing about a 45 page opinion. I obviously haven't had a chance to read it, but again, furthering that theme where the courts have appeals, at least we see this with the D.C. Circuit and the NLRB and MSDB cases, here we see it with the Fourth Circuit cutting back some of the successes that the challengers challengers are having.

Benjamin Wittes: Alright, folks we have run out of time, and so we're gonna defer questions this week. We will—assuming that everything calms down and there are no big actions over the next week—we'll, we'll, we'll do extra time for questions next week.

David Cole, thank you so much for joining us today. And thanks also to my colleagues Roger Parloff, Scott R. Anderson, and the estimable, venerable, Mr. James Pearce. We'll be back next week and somehow I don't think we will have extra time for questions.

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