Lawfare Daily: The Trials of the Trump Administration, May 16

[Intro]

James Pearce: I, I found it very interesting that there was relatively no discussion of the underlying merits of the birthright citizenship question.

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

In a live recording on May 16, we discussed the many legal challenges against President Trump's executive actions, including action in the Supreme Court in an Alien Enemies Act case and arguments in the birthright citizenship case, as well as Friday's hearing in the Abrego Garcia litigation. We also talked, we also talked about immigration cases, agency dismantling, and so much more

James Pearce: Like Justice Kagan saying assume that you are dead wrong on the underlying merits, what, what does that mean for the universal injunction question?

[Main podcast]

Benjamin Wittes: Folks, welcome to this week's Lawfare Live. I'm Benjamin Wittis, editor in chief of Lawfare, here in the Blazing Sunlight Studio. I'm joined by Roger Parloff in the Sconce Studio, Quinta Jurecic in the Ansel Adams studio, James Pearce in the Cathedral Studio—is that what we're calling it, James?

James Pearce: I, I, I like it. Let, let, let's do it.

Benjamin Wittes: Alright. The Cathedral Studio. And we are soon to be joined by Anna Bower, who is dashing out of court as we speak.

Guys, we have a Supreme Court opinion, which Roger and Quinta are feverishly reading. We are gonna deal with that second so that they have a chance between the two of them to read 24 pages.

In the meantime, James and I are gonna talk about the Supreme Court's completely fascinating oral argument in the birthright citizenship case yesterday, which was not an argument about birthright citizenship; it was an argument about nationwide injunctions, AKA universal injunctions. And I thought it was fascinating, James, how diverse the headlines on this were everything from government takes a beating, Trump administration, solicitor general takes a beating, to judges justices seem sympathetic to Trump administration on universal injunctions. What did you make of it? And do you think there are tea leaves to read here?

James Pearce: Yeah, I thought it was a, a fascinating argument and it, and it, it doesn't surprise me at all. And I, I've seen some of, of the reporting that you also mentioned that that suggests kind of all sorts of different readouts of, of the argument that we heard.

A couple of observations, some of which have been widely reported. I, I found it very interesting that there was relatively no discussion of the underlying merits of the birthright citizenship question, and the handful of times that it came up, there were things like Justice Kagan saying, assume that you are dead wrong on the underlying merits, what, what, you know, what, what does that mean for the universal injunction question? And, and there weren't even—at least if there were, I, I missed it, and I think I listened to all of the argument—any of the justices raising who might, you might be at least somewhat sympathetic raising kind of counter arguments.

Now, that's not entirely surprising, as you said, Ben, and, and as what kind of what, as best as we could understand going into an argument with no question presented, what was teed up here was this universal injunction question. I, I do think that the, the John Sauer, the, the solicitor general faced more skepticism—I won't say outright hostility, but more skepticism—for his position than I had anticipated.

There are some justices, I think Justice Gorsuch among them, who seems who seem to have been often quite outspoken in their dislike of universal injunctions generally, but yesterday at the argument you know, just to, to pause on Justice Gorsuch for a moment, I took him to be engaged in a, a, a pretty thoughtful effort to try to parse when, under what sorts of circumstances a, a, you know, the kind of broader relief that you, that you see in a, in a universal or nationwide injunction would be appropriate. In particular, he had a couple of exchanges with the Solicitor General of New Jersey, who, I have to say I thought just did a fantastic job.

Benjamin Wittes: An absolutely fabulous job. Just, I, I had never heard him argue before, but, you know, talk about the art of meeting every justice where they are and engaging with them incredibly respectfully with a point to make to each of them that, you know, engages their own writing. I thought it was a particularly artful oral argument and, you know, for those who want a kind of masterclass in the art of oral arguments, this was high up there in my book.

James Pearce: I, I couldn't agree more. I was he was helped a little bit by the fact that, as he quite articulately and artfully said you know, he, he could kind of straddle both lines. In this particular case, of course, he was one of those seeking the universal injunction, but recognized that look as a representative of a state, he, he was on behalf of New Jersey, but of course also representing I think the 22 other states—and maybe more than that, I may be confusing that with some of the other state-based litigation—but that they also had concerns of, of, under certain circumstances, broad reaching universal injunctions that just kind of tie their hands.

And so I, I, but, but yeah, I, I thought in, to go back to the, the point, the, you know, so he set out—he being Jeremy Feigenbaum, someone put in the chat, the, the New Jersey solicitor general—kind of set out these different categories of cases where a universal relief or universal injunction would be appropriate.

And, and Justice Gorsuch engaged with him in a way that suggested, look, I'm not, you know, as a bright line rule, I'm not interested in the government's position, which as I understood it was essentially to the extent there is ever an opportunity or there's ever, it's ever appropriate for there to be broader relief than just the parties before the court, in fact, it wouldn't really be that because it'd be through class action and that, that that would mean that those parties are, are before the court. And I didn't really hear anybody signing onto that. Even Justice Alito was raising practical problems with that Justice Kavanaugh as well.

And so I, I, I think some people have commented and I, I agree that to the extent the Court is really just interested on the universal injunction issue, this was a, a pretty poor vehicle to sort of suss that out because I, I didn't see a lot of, of, of the justices suggesting anything other than, yeah, this is the type of case where such relief would be warranted.

I think the other interesting thing, or and other interesting thing out of the argument were the number of justices that seemed interested in potentially getting to the merits. They all seemed to agree that it wasn't teed up now, neither the parties nor the justices but again, Justice Gorsuch, I think asked a couple of times to, for more than one advocate, how can we expeditiously get to the merits here and, and resolve this, resolve this question. You know, the, the answers were essentially things like supplemental briefing, and you could set this for argument soon.

And I, I, I heard Amy Howe on a podcast of, of SCOTUSblog suggesting her prediction was the court was gonna do that and move quickly to, to, to merits briefing. They haven't done that yet, at least as far as I've seen, although we just, of course, saw them act in AARP. So they are, they're a busy Court as we know, but yeah, I think it'll be interesting to see.

For what it's worth, my, my, my prediction you asked about tea leaves is that the court is, is not going to try to get to the merits now, at least before the end of the term. And I don't think they're gonna come out with some sort of bright line rule about universal injunctions always bad; I don't think it was ever, no one ever thought they were gonna say always good. I, I do think, and I think frankly, think it will be a good thing that they try to articulate some guidance about the scenarios or the circumstances in which, what it would be appropriate and it would not. Justice Gorsuch, a couple of times when advocates kind of propose that path, said, well, we've been doing that, the district courts aren't getting it, right.

But, you know, I I think if, if, if that's really the focus of, of the analysis here, I can kind of reset the playing field for, for the district court judges for whom this comes, and, and then maybe there's some more clarity moving forward. But yeah.

Benjamin Wittes: So let me, that's my read. Yeah. So let me bounce my read off you and see if you see what part of it you take issue with.

First of all, it seems to me that that the states at least—and the states had a much better argument than the individual plaintiffs did in my view—but they, they made some headway with Alito too, and the evidence of that was that Alito seemed to me quite frustrated with Sauer, the solicitor general, in the sense that he kept saying to him, hey, wait a minute, if, if you can just refile this case as a class, and, you know, doesn't article, doesn't Rule 22, effectively recreate the exact same issue simply by having a class of everybody who's affected by this? And Sauer couldn't really say no. He also couldn't really say yes because he doesn't wanna acknowledge that in fact a class would be certifiable.

But from, I, I think if I were Sam Alito, I would've walked away from that argument with, wait a minute, what do we even get by restricting the universal injunction here? They're just gonna come back with a class that we're gonna have to certify because actually it is cognizable as a class to say everybody who's affected by this irrespective of other considerations, can be part of the same class. I mean, you're gonna get some huge percentage of the, of the people involved in, in that class at some level.

So, you know, what do we really win by, by reigning in, you know, the universal injunction component, if you're merely gonna recreate it by other means, and then you get to Gorsuch saying, well, I didn't really mean all bad, and by the way, I love your three part categorization, and you clearly fit into exception number one, you know, I just want some help in figuring out how to tell district judges be more careful with this.

And so I, I actually thought—oh, and then Amy Coney Barrett sounded like she was nowhere in where, where the government would want her to be. And so I left it feeling like, you know, they had made some real progress on at least three I I didn't get a good read of where either Kavanaugh or the chief was, but on at least three. They didn't seem to be where they should be for the iron wall of the, of, of the conservatives to line up.

What, how much am what am I missing there?

James Pearce: So I, I would sign onto a lot of that. I think a lot of that's right. I would, I suppose with some caution offers some, some predictions with Kavanaugh and with the chief that will go in different directions, which is I think the points you made about Alito pointing out the problems with class actions strikes me as, as, as accurate and, and certainly a bit of a surprise 'cause you might have thought he would be more sympathetic to the position the government was advancing.

And I believe, I recall I think Kavanaugh was quiet during all of Sauer’s sort of free time, but then when it came to the Seriatim, I think, I think, Kavanaugh jumped in with a, with a bunch of questions similar to the kinds of criticism or concerns that Justice Alito had raised, and at some point said, look, look, we got, you know, if we say it's got all be class actions, all these class action suits are being teed up right now and they're gonna start flooding into the courts and we're gonna have to deal with this and, and, and so will all of the kind of associated problems. So from that I sort of took that. Kavanaugh is not as much in the government's camp as the government certainly would, would hope and, and would need to prevail.

By contrast, the chief was, I, I think, relatively quiet, which isn't so unusual for him. I think he has often kind of good, good questions, but is not as talkative as a lot of the other justices, but at some point he sort of tossed a softball to Sauer saying something like sort of this depends on us being able to act expeditiously, and certainly we, we can do that. We, the Supreme Court, you know, we did that in TikTok, I think he gave us an example. And I imagine he would probably point to a lot of the work that the court is now doing on their emergency docket, shadow docket, whatever people wanna call this including the opinion that will, or the order opinion that we'll talk about next in AARP. So I took that to be a little more skepticism with the, the position, the, of the challengers. In other words, a little bit more favorable to the government. But yeah, I, I agree there's not a lot of data to, to draw from there.

The other interesting thing, I, I, I also agree with you with Barrett. I, I think it's probably worth just touching on lots of reporting as, as indicated, sort of as focused on this as well, but Barrett really pressed sort of Barrett and Kagan together really pressed Sauer on this notion of so you'll, you'll respect a Supreme Court decision, but not so clear you're gonna respect if there's the Sec, you know, the Second Circuit reaches–

Benjamin Wittes: Right, the Second Circuit doesn't mean you have to not do any stuff in New York.

James Pearce: Right, right. And so I think that was a telling, telling moment. And yeah, I think there's been some commentary suggesting at least Sauer, you know, the, the, the Supreme Court got Sauer to say, yeah, we will respect the, the Court. Now, whether Sauer speaks for the government as a whole and the administration as a whole there, of course he does formally, if he does in practical terms time, time will tell, but I thought that was an interesting exchange and the fact that Barrett was pressing on him you know, I, I think also points to some, some generalized skepticism with government.

And I think, I think underlying this and perhaps what we'll talk about next in A.A.R.P.—though I say this with having looked at it for all of three minutes, and I'm sure Roger and Quinta will have much more insightful things to say—which is a point that Quinta has been making in some of her work on Lawfare and Alan Rozenshtein as well, which is like this, you know, erosion of presumption of regularity questions, right?

You know, is, is this really still the tenth justice, the solicitor general before the court? Do we have faith that the government is going to act in good faith with sort of the way we expect it to? So obviously not a, not an explicit issue teed up as part of this case, but I, I certainly saw that as a theme running through the argument from a, a wider spectrum of justices than one might have expected.

Benjamin Wittes: Alright, before we go on to A.A.R.P., I wanna ask about the three liberals, because it seems to me that they seem to be sketching out quite different approaches to this. And I want to specifically highlight the difference between Ketanji Brown Jackson and Elena Kagan on this.

Kagan sounded very much like Amy Coney Barrett to me and Ketanji Brown Jackson seemed to be going in a different direction, which was, hey, there's nothing wrong with universal injunctions at all. It's not a question of reining in the injunction. The issue in the injunction is you're telling the defendant to stop doing the thing that you're finding unlawful, and the fact that it's universal is merely a collateral benefit to nonparties, but you’re actually as a court only addressing a party to the specific litigation, so there's something unexceptional about that at all.

Sonia Sotomayor meanwhile seemed to be suggesting that the problem here is the magnitude of the wrongdoing. That the, the issue is there are—I mean, she kept emphasizing you're violating the law as stated in four Supreme Court opinions, none of which have been overturned, the apparent plain text of the Constitution and a federal statute. And, you know, when do we get to say that's illegal?

And Kagan raised a very specific concern that, wait a minute, if you disallow the universal injunction, you are never gonna appeal these. You're gonna lose at lots of different appeals courts, and you're just not gonna appeal it because you only recognize the nationwide implications of a Supreme Court injunction. And since you're gonna lose, you are the one who has to appeal and you're just not gonna do it. And she was applying a kind of very real politik litigation strategy. I've never heard actually a Supreme Court justice discuss the litigation strategy of the federal government with the Solicitor General before.

It seems to me these are three very different perspectives and we group the liberals in together, but I'm not sure they're coming down in the same place, or at least their reasoning seems different. What do you think?

James Pearce: So, you know, I, I think a lot of what you said again is, is spot on. I have a couple of, of reactions just to what you said and then, and then what that might mean, right.

And I'll go sort of in the opposite order with Justice Kagan. At one point she said something like, if I were in your shoes, I wouldn't bring this case to, to our Court. Now she has been in his shoes, of course, she was the solicitor general–

Benjamin Wittes: She was the solicitor general.

James Pearce: –for, for a hot minute or two before, before joining the Court. But and again, it was sort of a I think some insight into her thinking on the merits of the case which is, which is not particularly surprising.

With Justice Sotomayor, you're right. I mean, it was interesting, she did seem to suggest look, if something is so terribly, terribly and obviously unconstitutional, and not only did she, as you say, sort of cite that these, the four cases and a long history of practice, she also tried to flip the kind of political valence of the issue when she kept talking about imagine, you know, taking away everybody's guns and a president who comes in and says, because of gun violence, we're stripping everybody of their guns. Could there be nothing that this Court could do about it here? And so, you know, think about this, if the, if the shoe were on the other foot. So Kagan being in your shoes, lots of shoe metaphors.

Justice Jackson—yeah, you know, as Justice Jackson in her, in her time on the bench has shown, she's often kind of coming at this from a different angle that, that other justices aren't. I had sort of a hard time following exactly what she was driving at but it was an interesting idea, and then kind of taking them together, you know, I got the impression, which is not a surprise that they, that, that each of the, the three poor liberal justices were expecting they were gonna be having to fight to try to, to, to sort of pick apart why a, a bright line rule doesn't make sense, and so they, they were coming with different reasons why it doesn't. It just turned out that they were in greater company than they expected.

Now, I think Justice Kagan is a, is a tremendously capable strategist on the Court, and I imagine that, that she, working with some others, will craft something that will perhaps kind of address the concerns that the three liberals indicated or sort of, articulated along with the other justices that seem to have skepticism about a broad position.

What that will look like, I'm not sure—maybe it's something like the three buckets we talked about earlier. But I don't, I, I. I took those, those sort of different ways of coming at it to be kind of different ways of, of kind of preparing defensively, even though the terrain turned out to need, not to need that kind of defensive strategy once, once we started to hear where the other justices were.

Benjamin Wittes: Interesting. I—just to clarify what I think Justice Ketanji Brown Jackson was getting at, I think her point was, okay, Sauer is arguing. You can't give relief that goes beyond the specific defendants and the specific plaintiffs. Ie the litigation is between two parties; there's only an Article III case or controversy between those parties. Yes, I acknowledge sometimes relief will have collateral benefits to other people, but a universal injunction always goes beyond the specific parties in question and thus is an Article III problem.

And I think what Ketanji Brown Jackson is saying is, wait a minute, not so fast. If Ben is suing James, and Ben is the federal government, and James’s relief, the relief James asks, is stop, make the federal government stop doing this illegal thing, then the relief that he, the, the universal injunction is simply the relief that James needs, i.e. federal government stopped doing that illegal thing and it has this collateral benefit for everybody else, but it's not actually an injunction that goes beyond the two parties.

Neil Gorsuch and Sam Alito are not gonna sign on to that, but it's an, it's an interesting maximalist argument that I hadn't seen the others making, and it's certainly not what New Jersey is asking for.

James Pearce: I agree with all of that. Yep.

Benjamin Wittes: Alright, with that, we have sucked up 23 minutes of your time, which has given Roger and Quinta the ability to read 24 pages, which is well, more than one page a minute, and as a result, we can now talk to you about A.A.R.P.

Quinta, get us started, remind us which case A.A.R.P. is and what question was before the Supreme Court before we get to how they disposed of it.

Quinta Jurecic: I should say to start off that some of the pages don't have a lot on them, so we're actually reading more slowly than that.

A.A.R.P. is the case in the Northern District of Texas that has actually since had its case titled changed thanks to a request from the American Association of Retired Persons, so at least in the district court, it is now I believe W.M.M. but at the Supreme Court for some reason that did not percolate up, so it is still A.A.R.P., that being the initials of one of the plaintiffs. So this—

Benjamin Wittes: And just to annoy the actual AARP, I think we should call the case American Associations for Retired Persons v. Trump, just to be nudniks. No, I'm joking. We're gonna call it AARP 'cause that's what the Supreme Court is calling it, but it is not—as the, as the retired persons pound the table and tell us—it is not the the Medicare lobby.

Quinta Jurecic: Yes, this is, this is someone's initials, so A.A.R.P. or W.M.M., whichever you choose.

So this case, if listeners remember, comes out of the flurry of activity from a couple of weeks ago or a month ago maybe, where a district court in the Northern District of Texas had denied a motion for a temporary restraining order to prevent the removal of the class of Venezuelan detainees to be removed to CECOT, the El Salvadorian facility, under the Alien Enemies Act.

The ACLU then immediately appealed to both the Fifth Circuit, and I believe simultaneously filed a, a petition to the Supreme Court; the Supreme Court ended up stepping in before the Fifth Circuit. The, the justices blocked the government from removing anyone; the Fifth Circuit then came in behind them saying that they would have denied the motion from the ACLU, but because we had that Supreme Court block, no one was able to be removed in the Northern District of Texas.

That's important because a couple of days ago, the judge in this same case, now W.M.M.—I will say he acted very expeditiously to change the case title, less expeditiously on the actual issues of the case—once again denied a class certification. And so this was concerning, and I will say there's a great piece from Lee Kovarsky and Theodore Rave in Lawfare that just went up the other day explaining the issues here in much more detail than I can give here, but the long and the short of it is that that meant that anybody who was potentially removable under the Alien Enemies Act and was in the Northern District of Texas, that that stay from the Supreme Court was the only thing that was preventing them from being removed.

And so there was this danger that it was kind of creating an incentive for the government to basically funnel everybody into these facilities in that district, to so that, you know, when, when the Court acted, they could potentially just remove everyone very, very quickly to El Salvador.

So now the Supreme Court has stepped in, in the wake of that district court this, this denial of class certification and said, no, actually, this is just for a putative class in the Northern District of Texas; you do not get to remove people, or at the very least, you don't get to remove people without some minimal level of process.

The—so this is a per curiam ruling. The per curiam is pretty clear saying we're not weighing in on the substantive issue of whether the Alien Enemies Act was properly invoked here, whether you can remove people under the Alien Enemies Act, what we're doing is we're actually gonna send this back down to the Fifth Circuit to weigh in on what the appropriate sort of level of, of notice and process is for these detainees who are potentially removable to CECOT.

And that is important because one of the games that the government has been trying to play is building on the Court's previous, the Supreme Court's previous ruling in J.G.G. which said that, I forget the exact wording, but that detainees were mandated to have some sort of level of adequate notice in order to file a habeas petition. The government kind of took that and was doing, I mean, not even the bare minimum, like laughable levels of quote unquote notice, you know, handing out forms that weren't in Spanish or were only in English and not in any other languages offering 24 hours or less to actually go to a court. And so what the per curiam is saying here is that that is absolutely not sufficient, but we're gonna send you back down to the Fifth Circuit to figure out what actually would be sufficient here, and in the meantime you can't remove anybody.

I will say there's kind of a, a funny note at the end where, when the Court is setting up precisely sort of the, the procedural steps going forward, it specifically says there's a, a specific clause in there that says, and by the way, this, this order that we're putting in this block is going to stay in place until we decide what to do with your petition for a writ of certiorari from the Fifth Circuit, which we kind of assume that you're going to file. So, and then they say, or maybe you won't file it, but they're, they're building that in there, I think, because they're assuming this is gonna come back to them again.

That this was my very preliminary take that I developed while I was reading as I was listening with one ear to you both. So, Roger, I'm very interested in your thoughts, and please correct me if I got anything wrong.

Roger Parloff: I didn't hear anything wrong. I think it's being remanded for two purposes, also the to decide—I don't, you might have said this the—also to decide if the Alien Enemies Act is properly invoked, as well as the due process question, so the two questions.

There is a little bit devoted—it is surprising in a short decision and, and then how much is devoted to sort of petty stuff here which is like, if you remember, this was the case where you know, NBC, you, you've seen the NBC footage of the buses being loaded at Bluebonnet and heading for the airport, and, you know, James Hendrix would not rule, the judge in Northern district. And, and, and and so eventually, and he, what he was saying was, we, I, I, we, I need to provide the government with 24 hours to respond before I will make any ruling.

So eventually they went up without him, and so he was, and so there's a dispute here and the first time around Alito with Thomas had dissented and said, oh, you know, they only gave the judge 42 minutes, and, and so the majority is saying no, they gave him more than 14 hours, and, and, and so, and, and they, a lot of this is back and forth. So all of that is petty and has no relevance at all.

By the way, in a footnote, it, it makes clear that Judge Hendrix's ruling on the class certification is, is vacated automatically. That's just because they granted cert, that happens, so that's sort of, officially out of the picture.

Kavanaugh then concurs and if I read it—and we all, we all read this really fast, so we we're all making mistakes probably—but Kavanaugh, as I get it, he would, he would've just not even sent it back to the Fifth. He would've asked for more briefing and just decided these issues, which is interesting that, that only got or it didn't get five votes. I mean, I think that I would've thought, or four votes I guess, or I don't know how many you would need to, to grant. I guess I think you would need four to grant on that issue, but, so, but anyway he, that's what he would've done.

And then the two, the rest of it was Alito's dissent with Thomas joining and, and defending himself about the 42 minutes, and then there's a hyper technical argument that if James, once James reads it, he can weigh in on, but about whether there's an appeal from what the Fifth Circuit did and which, which was to not—it, it was a weird posture when the Fifth Circuit last got it, and they were saying they didn't have jurisdiction, so maybe so, so Alito is saying, I, we don't have jurisdiction. I'll leave it there.

Benjamin Wittes: So, to either of you who wants to take it, what is really—other than the incidental litigation history of this matter—what's really the dispute between the dissenters and the majority?

Quinta Jurecic: I mean, one way to put it to go back to the, the point that James was making earlier in your discussion of the birthright citizenship slash nationwide injunctions case, is just do we trust the government or not? I think that, you know, one, one way to kind of read the Alito dissent is he's really saying, you know, well, why would this district judge have needed to move quickly? The government said that they weren't planning to do anything. Which maybe sounds very convincing if, you know you've lived under a rock and just lifted it up, right, like it—

Benjamin Wittes: Or if you were appointed by George W. Bush, who never misrepresented to a court what he, you know, who never said to this, the court we're not gonna do X and then turned around and did it, but is completely naive if you're dealing with this administration.

Quinta Jurecic: Right, exactly, it's very specific to the conduct of this administration.

And then there's this really striking passage in the per curiam—which thank you to Brad Heath of Reuters for pointing this out on Bluesky—where the, the per curiam ruling says we recognize the government has agreed to forego removing the named petitioners pursuant to the AEA while their habeas proceedings are pending; we reject the proposition that a class action defendant may defeat class treatment if it is otherwise proper by promising as a matter of grace to treat named plaintiffs differently. I I think that the, sort of the matter of grace note there is very telling that they're basically saying like, come on, you know, perhaps unlike Justice Alito, we, we do not live under a rock and we can see exactly what you're doing.

And I, I do agree with Roger that this sort of back and forth of like defending versus attacking Judge Hendrix's honor is just very odd, but it is true that reading the sort of parallel accounts of what happened in the timeline is telling in terms of what is emphasized and not emphasized, and the version in the per curiam is just way more skeptical of what it is that the government is saying, whereas Alito is sort of taking that at face value in a way that I think clearly were seemingly seven other justices were just not willing to do.

Benjamin Wittes: Alright, so Roger, for those who did not follow this the twists and turns here, where does this leave things? It goes back to the Fifth Circuit kind of to announce what a process is gonna be?

Roger Parloff: It, it, to decide two things. To decide, is the Alien Enemies Act does, is the, does—can you invoke the Alien Enemies Act in this situation? You know, the, is there a predatory incursion? Is there an invasion? Is there a foreign state or government? They're gonna decide that. And then if there is, if, if the  AEA is properly invoked, then what process is due in the first instance, so–

Benjamin Wittes: And do they say why they're going to send that to an appellate court to decide in the first instance? I mean, usually you remand that kind of thing to the district court.

Quinta Jurecic: I mean this, this is the part where the honor of Judge Hendrix is, is maybe important.

James Pearce: No, I think I, I think it's a pretty standard part. So, so the Supreme Court will send it back to the Fifth Circuit. I think the Fifth Circuit the parties may even agree that the Fifth Circuit ought to send it back to the district court. It’s standard procedure that it goes back to the court of appeals and then the court of appeals can decide whether they, in the first instance, should decide the question or kick it further on down the line.

Benjamin Wittes: I just wanna–

Roger Parloff: It really, it really doesn't sound that way in the way this is written to me. I think that, you know, he's had his, he's had his shot, Hendrix, we know what he's gonna do. I think they're saying Fifth Circuit, you decide these two things. I maybe, I mean, he's better qualified than me, but that's, that's how I read it.

James Pearce: I mean, I'm just, I'm looking at the disposition on the final page of the per curiam, and that language is all pretty standard, including I think Quinta, you mentioned the, the language about like, you know, we, we, we, we keep this in place pending of a writ of cert, even whether it's filed—that's also pretty standard language that you'll see on their emergency docket.

So, you know, I I, I haven't read enough to kind of see the back and forth over the district court judge, but I, I do think it's this part, the sort of the disposition is, is pretty, pretty much kind of run of the mill, whatever differing justices may feel about the the bona fides of the district court judge here, and it will be up to the Fifth Circuit. I mean, the Fifth Circuit will get it.

It may or may not ask the parties, should we decide this in the first instance or does this need to go back to the district court for the district court to take a crack at it? I think that would probably be the right and would be the standard procedure, but that, that can be a question that's sort of worked out between the parties and, and the Fifth Circuit.

Benjamin Wittes: I guess I just wanna point out that if memory serves about Boumediene, Justice Kennedy's opinion ends with, you know, we leave these questions in the good hands of the district court in the first instance. He doesn't kick it back to the D.C. Circuit. Now maybe that's 'cause it's on the standard docket, not on the emergency docket. But I do think there's something—I don't, I don't know. I've, I've never, I've never seen the, the Supreme Court kick a, a question back to the appellate court that the district court hasn't ruled on yet. I don't know, I–

Roger Parloff: Well, he, he has ruled on on these. It's a weird posture. He has in fact ruled on these.

Benjamin Wittes: Alright. I stand corrected. I'm just saying it reads weird to me, not that I've read it.

Anna Bower, fresh out of court in the blue cushion studio with the weird colored walls. Where are you?

Anna Bower: This is the Crowne Plaza Hotel Studio next to the Greenbelt Courthouse studio.

Benjamin Wittes: Excellent. I'm, it's, it's great to see you. It kinda looks like a Crowne Plaza. I hope they have like, good, like, beer. Anyway–

Anna Bower: Yeah, I haven't tried the beer yet, but you know, maybe after we're done recording then, because it was a long hearing.

Benjamin Wittes: Alright, so you were in Judge Xinis’s courtroom until a few minutes ago in the Abrego Garcia case. First of all, remind everybody which one the Abrego Garcia case is, 'cause it's been a couple weeks since we've talked about Mr. Abrego Garcia, and what's the status and what were they talking about in court today? 

Anna Bower: Yeah. Kilmar Abrego Garcia is the Maryland man who was wrongfully removed from the United States to El Salvador. This is the case in which Judge Xinis originally ordered that the government effectuate his return to the United States. It it then went to the Supreme Court who said, you know, facilitate his release and you know, treat his case as if he had not been removed from the United States. And, and it went back down; she amended her order to say, facilitate his return. And then the government proceeded to do apparently nothing, it seems.

And, and so as a result, Judge Xinis ordered, allowed discovery, the plaintiff, some discovery around three different questions. One is, you know, what steps have you taken to facilitate his return? What is the status, his custodial status? And then, you know, what steps in the future might the government be willing to take or plan to take to, to comply with the court's order to facilitate his return?

Lurking in the background of all of this is this question of whether or not the government is complying with the court's order, and, and so we're in this discovery process still that at one point was put on pause for reasons that remain unclear because a lot of these filings are actually being done under seal, so some of this has been a little bit hard to follow, Ben, because, you know, as, as you're trying to follow the docket, it's like the government's filing things under seal, so are the plaintiffs in some cases, so it's not entirely clear what exactly is happening.

But the context of today's proceeding is that plaintiffs were able to depose three people who previously filed declarations in the case. Those were kind of lower level to mid-level, you know, people from DHS, from State—although one was the general, I believe, one is the general counsel or acting, I can't recall if it's like acting general counsel or what the official title is, but of DHS. But regardless, they're, you know, they were able to depose some people and the plaintiffs were able to submit interrogatories that they got responses to.

But ultimately, the plaintiffs have claimed that they were being stonewalled in all of these responses, you know, the government in terms of producing documents was invoking many privileges, including a deliberative process, privilege and state secret secrets privilege, the same in these responses to the interrogatories, and then when it came to the depositions, you know, again, we don't have the content of those 'cause they, they aren't on the public docket, but we do know some things about them based on what claims the plaintiffs have made, and then today, in the hearing, people have made about the content of those depositions, and it sounds like they, they basically didn't get much from the opponents. It was a lot of, I don't know, you know, I don't have personal knowledge.

So as a result, the plaintiffs filed a motion to compel additional discovery. They also requested a discovery conference to hash out some of these issues regarding these invocations of privilege related to state secrets and deliberative process privilege.

So Judge Xinis set this hearing for today. The main topic of the discussion was not so much, you know, the question of whether they should be allowed to have these additional deponents, but more so on what the next steps are in terms of figuring out the state secrets privilege issues, and the deliberative process, privilege issues, and, and so she mainly discussed that with the parties. Who was arguing on behalf of DOJ is a guy named Jonathan Gwynn, so, and, and our known quantity, Drew Ensign was not there for the government today, it was Jonathan Guynn.

And I, you know, Ben, even though we were supposed to be talking about these, you know, legal issues of state secrets and due process, and eventually it got there, a lot of this hearing was kind of just Judge Xinis arguing with DOJ about like, very basic questions around like whether or not they have even provided any information and compliance with the court's order, because DOJ continues to say, oh, like the government has given the plaintiffs all the information that they need, and Judge Xinis kept saying, well, I don't think you have. And, and so kind of, there's a lot of back and forth about that.

And then on the legal issues, Judge Xinis really focused on the state secrets for much of the hearing. One of the issues there is this question of whether or not the government has supplied sufficient evidence to show that national security or diplomatic relations would be endangered by the disclosure of this evidence that in which they’re, over which they're claiming state secrets privilege.

As a part of, you know, making that, showing, the government did supply an affidavit from Marco Rubio. I believe that this affidavit—it, it, it might be public now 'cause during the hearing she ordered it made public, but at the time of the hearing it was, it was still under seal. But from what she announced from the bench, you know, it sounds like it was very similar to an affidavit that Rubio filed in the J.G.G. case that that was public, and it, it sounds as though based on what Judge Xinis observed, it sounds as though it's very conclusory doesn't really provide much kind of concrete reasons as to why there would be this kind of blanket invocation of state secrets about a lot of this information.

And so she was kind of trying to get the government to give her anything more really that it, that it would, would, might be willing to, in terms of, you know, would you commit to getting more you know, filing a supplemental affidavit, that kind of thing. The government said it would take it under advisement and work on maybe getting some more information because she was very clear that she doesn't think at this stage the government has made a sufficient showing of you know, there being a real danger to national security or diplomatic relations.

And, and then, there was, you know, even beyond that question—which I, I will say the plaintiffs were not enthusiastic about giving the government a second bite of the apple of, of allowing, you know, them to supplement. They kind of were like, you know, this is just allowing them to string this along even further. We've seen time and time again, they're delaying for delay's sake, you know, but Judge Sini I think wants to give them a very short window to maybe get some more there to–

Benjamin Wittes: Because she wants to create a record, or because she seems to have genuine doubt as to whether they are trying in good faith. What, what do you think she's thinking?

Anna Bower: No, she, it's very clear to me that she feels they're not acting in good faith. That's the, all of the subtext of this entire hearing, and even at one point she said, like, I can't be, I can't believe you're sitting here telling me that the government is acting in good faith. But she, I think that she at one point went on a kind of monologue about how she takes her role as a branch, as a person who is a you know, co-equal branch of government very seriously, and because she, and she was making it very pointed right, of like, I take my job as a, a member of the judicial branch seriously, and that's why I'm, you know, gonna give you this opportunity, 'cause we've have, as she said, you know, we have other things to work out in the meantime anyway, so I'm gonna give you one more shot to kind of gimme some more meat on the bone of the state secrets privilege stuff.

But, you know, even beyond that question of, you know, supplementing the affidavit, she focuses well on this question of like, well, you know, what if in a case where intent is in question—which in her view intent is in question here because it's, you know, there's a question of whether or not the government is acting in bad faith and complying with their order—you know, is there some kind of way in which, like, even if there is a kind of maybe it's, it's unclear if there's a showing of danger, then do you go on to look at the need and, and then decide, you know, maybe I need to look at these documents that you're claiming state secrets for in camera and, and decide if, you know, based on that.

Like maybe there's more probing if you can't meet that kind of very minimal threshold of, of you know, the judge sat, sat—I don't remember the language in the case law, but it's like the judge has to sat satisfy herself that there is reasonable or a real danger to diplomatic relations. And so I think that she's thinking maybe at some point it might be necessary to do some kind of in-camera review if, if, if necessary.

And also that, you know, there might be a kind of more of a balancing of the equities at that stage than you might usually have in a state secrets case where there's typically like a significant amount of deference.

But a lot of the other conversation around the state secrets issue focused too on, you know, fact that this doesn't involve classified documents. One new fact that we learned—I think it's new—is that the arrangements between El Salvador and the U.S. used to be were previously classified, but apparently that has changed according to DOJ. We–

Benjamin Wittes: Have they now been disclosed or–?

Anna Bower: So it's unclear. Again, Ben, it's really hard. A lot of these conversations we're talking about things that we just don't understand or know what they're, 'cause they would jump around to talk about things like, you know, oh, like, or they would have–

Benjamin Wittes: Right, they're talking about a complete record, but we don't have a complete record.

Anna Bower: Right? We don't have it. And then they would stop midstream and say, your honor, I think this is better in a sealed session, and then the judge would say, okay, well I'm gonna put that on the list for the sealed session. And, and then they had like a whole set, a list of things that they almost got into, or they hinted at getting into, but then they ended up leaving it for a sealed session that happened after this long marathon hearing.

So, you know, it, beyond beyond the state secrets issue, there's also the deliberative process privilege issue. And that was, you know, not as significant of a portion of the hearing, but it, it led to one of the more interesting parts of the hearing—or dramatic, I should say, parts of the hearing—because in the course of talking about the deliberative process, privilege, the plaintiffs have argued that there's this exception—or it, well, there is an exception. They haven't argued there's an exception, there is an exception that they say applies. It basically is that, you know government, if there's a showing of governmental misconduct then this exception doesn't apply.

They've also made an argument about this other exception called the compelling need exception, but in the course of this conversation about government misconduct. You know, the government starts talking about, 'cause like, the plaintiff's argument is like, since the very beginning, this has been a case about government misconduct, you know, go all the way back to the circumstances of his removal, like it, you know, you, you have the government admitting that he was wrongfully detained at that first, excuse me, wrongfully removed at that very first hearing, and that there, you know, wasn't a, a basis even for his detention and then removal to El Salvador, all this stuff.

And in response, DOJ, you know, is discussing this question about whether or not those original circumstances of his removal constitute some kind of, could imply or suggest a government misconduct over the whole case. And remember that the question around whether he was removed, wrongfully removed to El Salvador is what led to Erez Reuveni’s firing and some of the admissions that he made in that, in that first hearing is what led him to be fired. And then Stephen Miller went on TV and, and claimed that there was a DOJ attorney who's a radical Democrat, who was sabotaging the case kind of thing.

And, and as we're getting into this subject, the attorney for DOJ, Guynn, you know, will not admit that during that first hearing and during that first initial phase of the case, the government conceded that he was unlawfully detained and removed. And, and he—you know, at one point the judge said you know, well, what about that first hearing with Mr. Reuveni? He, you know, he said this, he said that there's the ICE agent Cerna who said this, and, and he said, and in response Guynn says, well, your honor, I can't speak to what happened on that during that first hearing, and she said, come on, you know, you took over this case. I know you've read the transcripts.

Benjamin Wittes: Not to mention that the Supreme Court has made as a finding of fact that, that the government has conceded this. So it's the law of the case whether he wants to admit it or not.

Anna Bower: Right, and then, it was one of the most awkward silences I've ever seen in court, to be honest. It was this very long drawn out pause in which he just went completely silent and didn't say anything, and it was very uncomfortable.

And he eventually you know, when he did speak up again, he said that he would assume for the sake of argument that that he had been, you know, unlawfully detained and removed, and then, you know, kind of went from there using the hypothetical saying, oh, but even that doesn't show, you know, government misconduct, even if that’s the case. So, but it was, it was a really kind of astonishing, as in the back of his mind, I mean, I assume in the back of his mind is the fact that his colleague had been, you know, fired for conceding what he was being asked to concede, to admit that the government had conceded. So it, that was quite an interesting moment.

On the deliberative process, privilege stuff, again, Judge Xinis does not seem to believe that the government has met its burden of, you know, showing why the privilege should apply. She did seem into this government misconduct argument and then also to the compelling need exception argument. She over and over again, you know, noted that this is a qualified privilege that, you know, there's a balancing of equities and, and factors here.

And then the way it ended is basically she didn't rule from the bench. There's a lot of nitty gritty details that the parties wanted to get into in terms of discovery matters that they couldn't speak on publicly, and so she basically just kind of said, all right, let's, let's get into the rest of this in a closed session, sent everyone on their way. And I, here I am at the Crown Plaza Hotel after a, it was a quite a long hearing, about three and a half hours.

Benjamin Wittes: Alright. So–

Anna Bower: Two and a half hours, excuse me, two and a half.

Benjamin Wittes: We have 30 minutes. There have been no questions so far, which is convenient because this is when we turn off the questions. And so we're gonna use these, this, this last half hour of the show today to do a speed through all the other cases. We've used the first 60 minutes of the show to go through three cases, and we're gonna go through all the rest in the second 30 minutes 'cause you know, we get to prioritize.

So I'm just gonna do this in the order in which it's in the document here.  Quinta, let's start with tariffs. There was some, there's been this V.O.S. Selections case on the tariffs. What's going on with that?

Quinta Jurecic: There was oral argument this week in this case, V.O.S. Selections, which is challenging the IEEPA tariffs. They, they kept referring to them during oral argument as the Liberation Day tariffs, which I—-both, both sides actually—which I, I thought was a, a nice touch, and specifically challenging them on the grounds that the president had indicated that the trade deficit was a national emergency that was such that he was able to invoke IEEPA to impose these tariffs. So there are–

Benjamin Wittes: And, and just to be clear, Quinta, that's pronounced IEEPA.

Quinta Jurecic: Yes. Every time I say it, I, I think that.

So there are a range of arguments here. So the plaintiffs are arguing that IEEPA, the text of IEEPA doesn't allow the imposition of tariffs; even if it does, the president has to make a formal declaration of emergency, which he hasn't done; and even if he did that, the trade, the trade deficit is not emergency under the terms of the statute.

I have to say, it was an interesting argument to listen to in part because I've never listened to an argument at the Court of International Trade before. It was, it was very collegial—they, they closed by thanking the work of all of the court staff who had, you know, made the hearing possible, which I, I thought was very sweet.

But more on the, the subject at hand, I think what really came across to me was that the judges—this is a three judge panel—were just really struggling with how to define a standard for, on this, this question of emergency. And what constitutes an emergency. They really pushed counsel for the plaintiffs on how they would identify that line to the point where the counsel said at one point that he was asking the court to be an umpire and call a strike—that's a direct quote—and that in this instance, the, the pitch was so far outside the zone that, you know, they didn't need to be specific about, you know, did it, did it graze the edge of, I forget what it's called, the strike box, whatever it is. You know, this, this, this pitch was totally wide.

The, I will say the judges didn't seem super convinced by that and did keep pushing to try to identify a judicially manageable standard. Then of course when counsel for the government came in and made a range of arguments, but among them that the existence of an emergency is a political question and that the judiciary cannot weigh in, and that did seem to rankle the panel a bit.

So I think at the end of the day, it is not super obvious to me what way the court will come down. They didn't seem super comfortable with being asked to determine the contours of emergency, but they also really did not like the suggestion that the judiciary should, but out here. So we, we will see what happens. I think it's anyone's guess.

Benjamin Wittes: This is the first case ever in the U.S. Court of Federal Trade to be discussed on Lawfare.

Quinta Jurecic: They did seem somewhat bewildered by how many people it were apparently in the gallery.

Benjamin Wittes: Just, you know, every now and then the, the dark, the light of the sun burns into obscure places.

Alright, Anna, let's talk frog embryos case. It's taken a really dark turn.

Anna Bower: Yeah, it has taken a dark turn. There, there was a, a hearing earlier this week in the case of—is it Kseniia? Yes. Okay. It's Kseniia. but pronounce it

Benjamin Wittes: Yeah, but pronounce it as one consonant. Kseniia. It's, there's no vowel. Kseniia. 

Anna Bower: Alright. Thank you. So, this is the Harvard scientist who is from Russia who was on a J-1 visa brought from France, some clawed frog embryos.

Benjamin Wittes: As one does.

Anna Bower: It’s a case that is very much not funny, but unfortunately I can't help but laugh when every time I have to say clawed frog embryos. But–

Benjamin Wittes: I, I've never seen a clawed frog, I just want to say. Frogs don't have claws. And so there's the whole like claw frog embryo raises the–

Anna Bower: Yeah. Are there unclawed frogs?

Benjamin Wittes: What the heck is a clawed frog? Are there unclawed frogs?

Anna Bower: I, I don't know. I, you know, Ben, you were asking some of the same questions as the judge. You, you and the judge both wanna know. But there's–

James Pearce: I think theres one other question is whether a clawed frog gets along with a WITAOD.

Anna Bower: Yeah. So there there was a hearing in the case of the clawed frog embryo detention. Kseniia has been transferred to Louisiana. She's been in detention for about three months now. And the circumstances of this case are a little bit like, procedurally, it's like at a bit of a weird place because initially her counsel filed a, a habeas petition that made like a bunch of like requests for relief that fit with the facts that they thought at they were at the time because they, the government said there was a order for her removal. It turns out there wasn't. So they had, they had asked, you know, for various things related to their belief about what they thought the facts were on the ground. In addition to the habeas claim, they, you know, made some APA type claims in this petition.

So then after the judge sets a habeas kind of initial hearing, the government files a motion to dismiss for lack of jurisdiction. We get to this hearing that the judge is kind of like, I don't really know, like what you guys wanted to me to really deal with today. Like, are we dealing with everything or just the motion to dismiss? They end up discussing the motion to dismiss.

I, I think the judge, what the judge took it under advisement, but I think what she seems to be struggling with is, you know, this question of like the weirdness of how the petition as it was filed originally fits with what they kind of seem to want now, which is her release. And, and you know, she has said that she will go back to France willingly 'cause that's where she, you know, was traveling from, but the issue is just that she doesn't want to go back to Russia because of past political persecution there.

So it's a, it's a case that has a lot of complicated facts and has a bit of a weird posture. And for the sake of this lightning round, I'm gonna speed through it and just say the end result in terms of that hearing is that judge took the motion to dismiss under advisement and set a hearing or, or said that there would be a, a hearing within the next few weeks for a, a bail hearing.

The very next few hours Ben, you know, pass—same day as this hearing taking place where the judge says I’m gonna set a bail hearing, hours later, she is then at the subject of a criminal complaint filed by the Justice Department for smuggling under 18 U.S.C.§545—the, you know, smuggling of the alleged, the alleged smuggling of clawed frog embryos. Again, earlier in the day during this hearing, you know, there were a lot of questions about like, wouldn't this usually be a fine? This is something that you're not criminally and you have something that is of that nature of what she had, you're, you're fined as opposed to prosecuted.

That said, there are some facts in the complaint that which was sworn out by the way, the supporting affidavit was sworn out like three months after the incident, but regardless, as alleged. There are some facts in the complaint that I think are not like great facts for her if they, if they turn out to be true. They relate to you know, text message that she sent in, which people were asking her, well, what are you gonna do about customs, you need to get permissions for the, the frog samples. But you know, again, I, I plan to do some research in the next coming week about exactly how the law would apply to something like this, because I'm just not sure. But if anyone else has thoughts, then please chime in.

Benjamin Wittes: Alright, so, Anna, you're breaking up a little bit, so I'm going to ask–

Anna Bower: Oh, I'm sorry.

Benjamin Wittes: Yeah, no, it's okay. We just got some background noise and, and some interference, I think from the storm that's passing over. But give us a very quick Rümeysa Öztürk update because, that's in your department too.

Anna Bower: Yeah. There was also a hearing this week about whether she'll be subject to ICE conditions during her release. She was previously released. This is the Tufts student who was taken off the streets in Somerville by masked immigration authorities.

After her release ICE, wanted to sub, wanted her to be subject to a bunch of conditions, travel restrictions, notification, registration, all this kind of stuff. There was a dispute over this. The parties didn't want any restrictions or excuse me, the plaintiffs didn't want any restrictions. ICE of course, wanted all the restrictions. The judge presiding over the habeas proceedings, had a hearing to sort it all out. Ozturk will ultimately be subject to some conditions, but a lot of it will go through the enforcement mechanism of, or if ICE wants to enforce an alleged violation of it, it will, there will be a 48 hour, you know, notification to the court to the judge in Vermont who then you know, there'll be a chance to respond. So he still kind of has some kind of oversight over some of these restrictions, and he, ended up striking a number of the requested restrictions as well.

So those proceedings are ongoing. He, he mentioned potentially having the habeas hearing around September. There's also potential preliminary injunction forthcoming surrounding some of the issues that Ozturk was having with her SEVIS records being deleted or otherwise just, removed from the system. That's been an issue we talked about before.

I—it's very loud, so apologies. I'm gonna stop talking before it gets even louder at the Crowne Plaza. Who knew that the Crowne Plaza?

Benjamin Wittes: Hey, it’s a happening place. The Greenbelt Crowne Plaza, where everybody goes on a Friday evening for happy hour.

All right, we're gonna speed through these initials cases. We'll start with James CHNV and the national TPS issue, both at the Supreme Court. What are we talking about here, James? I literally have no idea what this refers to.

James Pearce: Yeah, so CHNV is not actually an initial. It stands for four countries, Cuba, Haiti, Nicaragua, and Venezuela. These are two cases that are now—

Benjamin Wittes: We we're deporting whole countries now?

James Pearce: These are cases where—I mean, sort of, sort of seems like it, yes—where the secretary of Homeland Security, Kristi Noem in April, essentially canceled temporary protected status, that's the, the TPS, for a large tranche of Venezuelans. And in a separate case or a separate administrative action, canceled protected status—not the, not the formal TPS program, but protected status—for the CHNV, large group of Cubans, Haitians, Nicaraguans, and Venezuelans, more than 500,000.

Those individuals and organizations representing both of those groups filed challenges in the district court. The district court, in both instances, granted relief, preliminary injunctions; the government sought stays pending appeal in both cases. In both cases that the court of appeals—I believe they both came up through the Ninth Circuit—denied those. And so as has often been the want of the current administration the solicitor general has sought Supreme Court intervention seeking a stay of the relief granted to the challengers.

The very basic kind of dispute here is that the government says, look, this is an entirely a discretionary call for the secretary of Homeland Security. The statute itself says that in the secretary's discretion, she can or cannot provide that relief. Here the challengers are saying they're due sort of case by case relief. That's in fact not, not an accurate reading of the, of the statute. Challengers come back in and, and offer a different statutory reading, I should say, as is typical of a lot of the, of government litigation in this space. They also, they also claim that there, there shouldn't be, so both under the INA and for other reasons, the, the district court has, has no, no sort of cause to be adjudicating these cases at all.

So it's up at the Supreme Court. The TPS case that is just Venezuelans, it's fully briefed, awaiting Supreme Court action. The other case, the CHNV, we got the government response just within the last few days, I assume we'll see a reply. I imagine the Court will dispose of these together. I don't have a great read on what the Court will do, but when they act, we will let folks know.

Benjamin Wittes: Alright. Before we turn to the initials cases, James, let's talk for a moment about Judge Hannah Dugan, who in Milwaukee, who has now been indicted and has moved to dismiss. You have—she's dismissed on an immunity claim, which is a matter on which you have some expertise. So bring us up to speed.

James Pearce: Yeah, so, so as you said, she was indicted. This is a judge we've talked about a few weeks ago, I, I had a, a piece in Lawfare kind of looking at her, her criminal complaint. She's been indicted now for a misdemeanor count of concealing someone with a, a arrest warrant and then obstruction.

The day after her her indictment somewhat unusually quickly, she filed a motion that basically says she is immune from criminal prosecution because she, the indictment rests on official judicial acts, and the first case that she cites is Trump v. United States. The, the case of the, the former president, which with, with–

Benjamin Wittes: Zing!

James Pearce: –with which I did have some involvement.

You know, I, I don't think that this motion is gonna fly. The, in fact in that, in that Trump litigation, though this didn't form a, a significant part or really any of the Supreme Court's analysis. There was a lot of discussion of immunity for, from criminal prosecution, for prosecutors, judges, other officials, and the short version is it doesn't exist—criminal immunity.

And in fact, that is well, the, the judge overseeing the case out of Massachusetts that we've talked about before that had, has facts that were quite similar to Judge Dugan, the district court judge there also rejected a, a motion to dismiss on judicial immunity grounds. I think that's probably the, the right result here. You can imagine a judge who accepts a, a bribe in, in exchange for doing something that everyone would agree is a, is a core judicial official act, right, ruling in a case, sentencing someone to a more favorable sentence. So, but we'll, we'll see. The government hasn't, hasn't filed its, its response yet.

There's also, I should say a portion of that motion to dismiss that that seems to suggest that there's some kind of a, a Tenth Amendment or federalism type problem, which is a, which is an odd argument, essentially saying that the federal government has sort of invaded the, the prerogative of of the state of Wisconsin. That's also not really a thing, though I, I understand. I think the rhetorical reasons perhaps behind making that point in these times.

Benjamin Wittes: Alright, thank you. Roger, let's turn to Gutierrez-Contreras. So for each of these, I'm gonna name them and remind us what the issue in these cases is and where it is, and then give us a brief rundown.

Roger Parloff: Gutierrez Contreras is a one-off habeas in the Central District of California Riverside. And a judge—somebody subject to, a Venezuelan that could be subject to the AEA proclamation, and the Judge Sunshine Sykes

Benjamin Wittes: Great name.

Roger Parloff: Yeah, ruled that he gets at least 14 days notice before he can be removed. He actually has already been, somehow, I, I don't exactly get these facts, but he's, he's moved out of that district and he's in Bluebonnet in the Northern District right now. But it, it's only a one, it was never a class action. So it's, it's not that, you know, it does, we don't know how much it means.

Benjamin Wittes: It's precisely the way the in the case you know, no national injunctions.

Roger Parloff: Yeah.

Benjamin Wittes: They want everything litigated this way.

Roger Parloff: Exactly. Yeah.

Benjamin Wittes: Everybody's case affects only the two parties in front of them.

Roger Parloff: Yeah.

Benjamin Wittes: Alright, next one: J.G.G.

Roger Parloff: Yeah, that's the, the granddaddy of them all. This was a, but at this point it's an attempt to bring a class action for the people that were already shipped to CECOT on March 15 under the AEA. And Judge Boasberg today ordered some limited jurisdictional discovery, meaning discovery that will be relevant to whether the U.S. has constructive jurisdiction over those prisoners.

So it's gonna raise a lot of the same questions that are live in Abrego Garcia, and I honestly, I think the plaintiffs did not really want to ask for it, but Judge Boasberg sort of hinted he'd feel better if they did, and so we're going through that there.

Benjamin Wittes: Badar Khan Suri.

Roger Parloff: He is the postdoc, he is an Indian postdoc at, at Georgetown, and he was released from detention. He had been in detention in Prairieville, Texas. His wife is a U.S. citizen, but she spent a lot of time in Gaza and her father was apparently a government official there at some point, so, there's there people were saying he has ties to Hamas and that is apparently was the basis for his visa being pulled.

And, but, so this is, he at least gets out of detention for now. That's based on the First and Fifth Amendments, but he'll have to continue. This, this is in the Eastern District of Virginia, where the judge is, Alexandria, and its Judge Patricia Toliver Giles.

Benjamin Wittes: A.S.R.

Roger Parloff: A.S.R. is another Alien Enemies Act case in the Western District of Pennsylvania. This had been a, a class action but at, at, at the TRO stage—this is Judge Stephanie Haynes—and but she deified the class earlier this week because the class, the government says there's nobody else in that district anymore who is ripe for AEA treatment, and in fact, even the plaintiffs has again been moved to Bluebonnet. And she had actually ordered that he not be removed from the Western District of Pennsylvania at the TRO stage, but they moved him the day before the TRO. Anyway, she said that he gets at least 21 days before removal if, if they're gonna try to remove him. And again, it's one of those one-offs at this point, so it doesn't seem to mean a lot.

Benjamin Wittes: Alright, that brings us to the last one, M.A.P.S., M.A.P.S.

Roger Parloff: Yeah. That's in the Western District of Texas. That's a classwide TRO against removals under the AEA. It was a very short order. He says there's a likelihood of success of showing that the proclamation violates the AEA and due process, but he didn't really explain his reasons.

So at this point, there are five judicial districts where AEA is blocked. Southern District of New York, Southern District of Texas, Western District of Texas, District of Colorado, all because judges there have said it's invalid, the AEA or the proclamation. And the Supreme Court has as you, we, we know, has barred the, barred them from being removed from the Northern District of Texas.

Benjamin Wittes: All right. That covers the the initials cases. James, we have two new impoundment suits. What's the deal?

James Pearce: Yeah, so in that, in that red hot funding freeze District of Rhode Island, we had two complaints filed earlier this week. They must have been coordinated; they were filed on the same day. Illinois, along with 20 other states against FEMA and DHS and a few other agencies was one; the other was California against the U.S. Department of Transportation.

Both of the suits basically have the same kind of central claim, which is that the government has started, this administration has started to withhold funds from various important programs—you know, disaster relief, that kind of thing in the FEMA suit, in the, in the DOT, Department of Transportation case, you know, various types of road safety, etc.—and has conditioned funding—I'm about to lose power so, yeah, I may lose you—but has conditioned that funding on the states taking certain immigration actions. And the states essentially argue that that is either an unconstitutional condition or some kind of effort at commandeering and then makes what we have seen as pretty, pretty typical in these cases APA or other, or claims directly under the Constitution.

As I said, these were just, just filed I believe their preliminary injunction motions out in, in each of them, so, we'll, we'll see how that goes. But, but yes, added to the list of additional funding, freeze litigation, again, that seems to have really amassed in the District of Rhode Island.

Benjamin Wittes: Alright. In the meantime, we don't have major developments on the law firm targeting issue except one, which is that James, you and Natalie Orpett, wrote a major piece on this this week that suggests that the law firms who settled may have a real problem or a set of real problems as a result of the settlements. Let's do a little bit of Lawfare log rolling here and talk a little bit about this piece.

James Pearce: Yeah. So just, we just published it. There's been obviously a lot of reporting about the, the, the sort of the dynamic of the settling firms and the challenging firms, and a lot of, I think, quite, quite fair criticism of the settling firms that look, they just made this kind of crass business decision and, and and kind of moral criticism of that decision.

What our piece tries to do is, is to kind of do an analytical look at is in fact their risk calculus, a fair analysis of the risks that they currently face and could face. And so we walk through you know, potential risks including look, do the agreements trigger potential criminal liability under, under federal law as essentially a quid pro quo, a bribe in exchange for an official act either, either rescinding in the case of Paul Weiss or, or foregoing an executive order in the case of the other firms. Under a UK law—all of the firms have, have London offices—there's, there's pretty broad reach of, of UK law, could, could that come into play. Also looks at ethical considerations—civil law, potential liability.

And, and we talk about both those risks that that exist now based on the, the actual, the deals themselves, as well as the kind of slew of potential risks that may come with, with conflicts and, and other potential eventuality.

So, yeah, if, if this is a story that folks have been following and are interested in that's a piece that's up on, on Lawfare this afternoon.

Benjamin Wittes: Alright. Before we go to our final weekly update, James there are two oral arguments involving agencies, one in Wilcox v. Harris, and one, you know, you seem to be dismantling another federal agency. So what's what's going on with those two cases?

James Pearce: Yeah, D.C. Circuit was busy. These were both today and in the morning. The court—not the same panel that had heard this at the motions, which was Judges Henderson, Millett, and Walker; this was now Judge Katsas, Walker, and Pan—and this is the case of what we sort of group as the Humphrey’s Executor cases. The challenge by fired removed members of the Merit Systems Protections Board and the National Labor Relations Board basically challenging their firing.

Argument was spirited and probably what one would've expected. There were when the government got up first as the appellant Judge Pan was, was really pressing the advocate about the, the, the, kind of unitary executive theory, and in fact, the, the government advocate used that the phrase, the, the go, the, the executive is a unitary, energetic kind of channeling Hamilton and Federalist 70. And, and Judge Pan had many questions.

And then when the challengers sat down sat down and the gov came up, sorry, the sort of the dynamic flipped and Judge Katsas had more questions. I have to say, Judge Katsas, though, had questions for both sides. I, I think he's probably still gonna come down the same way that the emergency motions panel did and, and probably fine that the president has the power to remove these individuals.

One thing worth noting, as folks may remember the Supreme Court actually has administratively stayed the, the, the actual removals at this point. It's been sitting on their emergency docket–

Benjamin Wittes: Well, I think we have lost James. The storm finally got him. Which brings us to the last, I love the look on his face in that frozen shot. It brings us to the last question of the day. Anna Bower, who is the administrator of DOGE?

Anna Bower: I, I'm, I know I'm cutting out too, so I'm just gonna say Amy Gleason might get deposed.

Benjamin Wittes: Whoa.

Anna Bower: Whoa. So look, here's what happened. In one of the FOIA cases regarding whether or not DOGE is an agency subject to FOIA—this is the case before Judge Chris Cooper, that was brought by CREW—there originally, judge Cooper granted a limited discovery that included a deposition of Amy Gleason, the alleged acting administrator of DOGE.

The government then, you know, challenged this, went up to the DC circuit, tried to get a writ of mandamus. The case was the discovery order was administratively stayed. And then just a few days ago, the D.C. Circuit three judge panel lifted that stay and said you know, nope, the discovery order can go forward. And so Amy Gleason, we might get our first deposition of Amy Gleason.

And that we have had two depositions previously of DOGE people in other cases. Kendall Lindemann was a 30(b)(6) witness for DOGE. But Amy Gleason, even though she's filed declarations, she has never been subject to, you know, questioning about some of the statements and her role you know, herself. So, that's a big deal and we might just learn if she really is the administrator of DOGE.

Benjamin Wittes: And if so, what that means, does it involve any administration or administering, we're gonna leave it there. Quinta Jurecic, James Pearce, who's back after having been swallowed by the lightning, Roger Parloff, Anna Bower, thank you all for joining us. You are all great Americans.

Fact, we're gonna be back next week. Neither snow nor sleet nor hail can keep these analysts from their chosen paths of bringing you information about these cases. We will see you next time.

Natalie Orpett: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

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