Lawfare Daily: Trials of the Trump Administration, May 9

[Intro]

Anna Bower: We heard from Öztürk herself, who testified. Actually a long, much longer hearing than, than I thought it would be.

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

In a live recording on May 9, we discussed the status of the many pieces of civil litigation against President Trump's executive actions, including the order for the release of Rümeysa Öztürk, the Radio Free Europe/Radio Liberty funding freeze litigation, the Supreme Court's order in the ban on transgender service members and so much more.

Anna Bower: Even though the government had requested a stay of, of this order, the judge said no, I order that Ms. Öztürk be immediately released.

[Main podcast]

Benjamin Wittes: It is Friday, May 9. It is 4:00 PM and you are watching Lawfare Live. I'm Benjamin Wittes, editor in chief of Lawfare, here with Roger Parloff from the Sconce Studio. Hey, Roger.

Roger Parloff: Hello.

Benjamin Wittes: James Pearce from the Cathedral Studio, AKA the Stained Glass Studio.

James Pearce: How you doing?

Benjamin Wittes: Quinta Jurecic from the Ansel Adams studio.

Quinta Jurecic: Hello.

Benjamin Wittes:And Preston Marquis from the polka dots and I'm not sure what to call the other one it has a a, a vaguely Mondrian look to it studio.

Preston Marquis: The Avant-Garde Studio.

Benjamin Wittes: Yeah, we're gonna we're going with the Avant-Garde Studio.

Look, it is another week and it is another—oh, and it is Anna Bower from the faux U.S. Court Studio Room in her palatial mansion. Anna Bower, you cannot pass that off as a street scene. We know you're not in front of the courthouse.

Anna Bower: You don't think that I'm in Vermont, Ben?

Benjamin Wittes: No.

Anna Bower: Have I not shown my willingness to travel wherever the court hearings are?

Benjamin Wittes: When in Vermont, the back of your head doesn't dissolve into the courthouse scene the way it does when you have a background.

Anna Bower: You know, maybe that's just how things work in Vermont, though.

Benjamin Wittes: It's true. You know, you never know. You're standing there and all of a sudden the back of your, your shoulder dissolves into the scene and back of you. So look–

Anna Bower: I think I just saw Bernie Sanders walk by in the background, so I'm definitely in Vermont.

Benjamin Wittes: Alright, famous Vermonters showing up on Lawfare Live.

Alright guys, it's another week, it's another crazy action pill filled words not coming to me kind of situation, but we are going to start with what happened today. Rümeysa Öztürk had a hearing, second hearing, in which a student goes before a federal judge and says I'm being locked up pending deportation for, in this case, writing an op-ed. And a judge in Vermont says you can't hold somebody on that basis, I'm giving them bond. And they walk out of court.

Anna, you watched the hearing, the whole thing. I watched a bit of it. Tell us about it.

Anna Bower: Well, they actually, so she didn't walk out of court because actually this hearing, it was held via Zoom in part because Öztürk, who is the Tufts University PhD student who in a video that I think probably everyone has seen at this point was taken off of the street by masked immigration authorities in Somerville, Massachusetts.

She—as far as anyone can tell, the reason that she was taken and her visa, you know, purportedly revoked is because of an op-ed that she wrote, and you know has been detained–

Benjamin Wittes: The, the most famous op-ed in the history of Tufts Daily,

Anna Bower: And, and she was subsequently transported to Louisiana. There's a little bit of backstory here in that initially her counsel tried to file in Massachusetts; the judge in Massachusetts said, don't, don't take her out of state, not knowing that at that point Öztürk had already—as far as as, as I can tell from the timeline—had potentially already been removed outside of the state, so.

And the judge mentioned today that maybe some of these details about in terms of, you know, what was going on with when she was moved and whether or not the government knew about the judge's order at the time, will, will maybe come up later in the litigation, but all, all of which is to say she ended up in Louisiana. There was more, you know, maneuvering in terms of does she have to litigate this issue in Louisiana. It ends up in Vermont.

And, and I think that James is gonna talk a little bit about how we've already seen some Second Circuit action, but in terms of the hearing today, it was a bond hearing, or bail hearing, the question being, you know, whether or not Öztürk can be immediately released. Again, she's in Louisiana but did appear virtually. And it, it, I, it's very rare to have a federal court hearing that is you're able to just watch via Zoom. So we were very lucky to be able to be present virtually, although of course–

Benjamin Wittes: It was, one of the great things about the pandemic was all these federal court hearings went to Zoom and you could watch them from your, from your house. And I wanna say bring back COVID so that we can all have Zoom hearings again.

Anna Bower: Yeah. And, and so look, one of the, the issue here the judge under a case called Mapp has three different factors. One is, is the question of whether or not there's been a substantial claim that's been brought. So that involves this question about basically you know, has, has Öztürk brought a kind of sufficient claim of that she, her First Amendment rights were violated, or that her due process rights were violated.  The second issue is extraordinary circumstances. And then the third issue is kind of, you know, a, a dovetail of those two things: whether or not, you know, the release would be necessary to effectuate the remedy of habeas.

And so looking at all these issues, there were the, the basic case that counsel on behalf of Öztürk brought was to focus a lot on this extraordinary circumstance issue because, as James will explain, the substantial claim part of it all kind of had less of an emphasis given the Second Circuit’s ruling in the days before this hearing. And so, the focus was on these extraordinary circumstances.

They focused a lot on her asthma. Öztürk is asthmatic. She, in the course of her detention, has suffered nine episodes, I believe it was, of asthmatic attacks. The argument was that those attacks have gotten worse because of her medical treatment at the facility in Louisiana, and then also 'cause of the stress because of different environmental triggers. So that was a big focus at this hearing as we heard from doctors who have treated Öztürk. We heard from Öztürk herself, who testified during this hearing.

We also heard a lot about her ties to the community, things that often come up in immigration or just generally in any kind of bail proceeding, because a lot of the time, one of the questions is, you know, is a person a flight risk is a person a danger to the community, what kind of ties to the community they have. So we heard a lot from both Öztürk about what her work at Tufts is and her relationship to people; we heard from as well her advisor at Tufts. So it was a kind of, actually a long, much longer hearing than, than I thought it would be.

And then from the government, really not a whole lot, Ben, in terms of factual presentation or cross-examination on any of these issues. We got around towards the end of the hearing to the arguments from counsel for the government and for Öztürk, and the government said basically, you know, judge, our continued kind of argument here is a legal one not necessarily a factual one, and, and they were basically making the argument that the court didn't have jurisdiction. They said we wanna preserve that argument, but again, because of the Second Circuit's, recent action, didn't have much of a foot to stand on there.

And then the judge rules from the bench and finds that all three of the factors under map were sufficiently met and ordered—and even though the government had requested a stay of, of this order, the judge said, no, I order that Ms. Öztürk be immediately released from custody in Louisiana.

And the judge also, I, I will say, in addition to making these comments about this question about whether or not there were some gamesmanship around the order in, in Massachusetts that she not be removed, you know, seemed to be, not entirely—seemed to be concerned that the government would actually immediately make, take steps to release Öztürk and so he said to counsel for the government before, you know, leaving the courtroom, I want you to immediately see to it that your clients know about this and I want you to inform the court when she has been released. And so he got the government on the record to say, yes, Your Honor, I will immediately communicate this to ICE in Louisiana, and I will immediately communicate to chambers once she is released. So, that's kind of where we left it.

Benjamin Wittes: Yeah. So just to be clear here, who is the government for purposes of this hearing? Was this a career person? Is this a political person? Is this somebody who has had—let's just say—candor issues before the court? Or was this on the judge's part, a lack of confidence in ICE?

Anna Bower: It's, it's a, it's a good question, Ben. I, I, unfortunately, I, I did not look up the background of this person, though maybe if any, Roger, if you wanna chime in if you have more details.

I will say, based on just the presentation alone, I would suspect that this is a career person. It, it did not seem to be the case that there were prior candor issues for this person in particular. So, but I would need to—I, I, I don't know, Ben, is the, the basic answer.

Benjamin Wittes: Alright, if anybody has—oh John Hawkinson is raising his hand. Oh, excellent. Yes.

Anna Bower: John had a great live post about this hearing and, and was present for it. So maybe John can give us a–

Benjamin Wittes: Yeah, so let's see what John knows about Mr. Drescher. Hang on just a second. John Hawkinson, what do you know about Mr. Drescher?

Josh Hawkinson: Thanks Ben. So Michael Drescher is actually the acting United States attorney for the District of Vermont. He's—I, I don't know his personal history, but I, I think he is probably the most senior AUSA in that office. He looks like he's, he's in his mid sixties. So he's a, a repeat player before that judge. You know, it's a small district, Vermont, it's not, there's not a huge number of AUSAs or judges. So he has got a rapport with the judge, he's a repeat player. And I thought he was very much resigned to presenting the case he was required to present on behalf of his client, but his heart was not in it.

Anna Bower: Oh, that's totally the perception I had too, John. It was, he was very like, judge, we continue to just stand on our legal argument. He, he was not someone that—as John put it—seemed to really have his heart in it.

Roger Parloff: Careful. We don't want him to get fired, so.

Josh Hawkinson: Well, yeah, point. Funny you say that, Roger, someone, it's funny you say that. Someone suggested to me that it could well be the case that he is taking these cases because he knows that the buck would stop with him and he's the only one who might be required to take the fall for it if, if that were to be the case.And he is representing the government both in this case as well as the other two high profile immigration cases in Vermont right now.

Benjamin Wittes: Oh, wow. All right. Well, thank you John. So, so let's move backward in time and upward in appellate ladder status to the Second Circuit action in Öztürk. James?

Roger Parloff: Cool transition, Ben.

Benjamin Wittes: I was proud of it, you know,

Roger Parloff: Temporal and staged.

Benjamin Wittes: You know, I, that's why I brought John on so that I would have time to think about how I was gonna do that so elegantly. So James, how did the Second Circuit get involved in the Öztürk case and what did they do?

James Pearce: Yeah, so the Second Circuit got involved when the government sought a stay pending appeal of a transfer order that the judge in Massachusetts entered. And, and a little bit of background, some of which Anna touched upon, is helpful to understand it. And for those that are, that are familiar with or remember the Mahmoud Khalil case, you'll notice that a lot of the facts are are very similar, and the legal issue is similar as well.

So as Anna mentioned, Öztürk is, is arrested in Massachusetts by these plainclothes officers, moved across the border to Vermont, and then flown at some point not too long after that down to Louisiana. While she, Öztürk, is in Vermont before she goes to Louisiana, her attorney files for habeas relief, and files in Massachusetts. The attorney—not knowing where Öztürk is at the moment—files at 10 o'clock in the evening. Öztürk is in Vermont at that point.

So in, in that sort of period before she's, before Öztürk is taken to, to Louisiana, the Massachusetts judge as the judge in New York had done in the Khalil case transferred that habeas petition under the—I think it's, I I can't remember the, the, the provision provision of, of, of law that provides for that when, when the judge finds it's in the interest of justice to the district where if it had been timely filed there was jurisdiction for the court. And the two pieces that have to be in place is you've gotta file your habeas petition in your district of confinement and you have to name your custodian.

And so when the Massachusetts judge did that the, the petition was adequately, at least filed in the, in the district of confinement. A sort of separate question, we'll, we'll address in a moment on, on naming the, the, the correct custodian. And, and, and so it was, it was therefore before the Vermont judge.

On that custodian piece, very much as had come up in the Khalil case before. The argument that, that Öztürk was making was you know, or at least her attorney was making, we don't even know whose, whose custody she was in. And interestingly, during the Second Circuit argument that happened earlier this week the attorney for the government actually couldn't even identify in whose custody Öztürk was at that time. Sort sort of said, well, maybe while she was under, under, you know, in transport it was, it was Vermon, but I actually, she, the attorney couldn't even come up with who that person was.

Anyway, that's the, that's the background. Long story short on what the Second Circuit did, is it denied the government's stay pending appeal of the transfer order.

The, the, the arguments that the govern government made were, were jurisdictional both on the habeas front, very similar to the arguments in the, in the Khalil case, and then a series of arguments under the Immigration and Nationality Act, essentially that that law stripped the district court of jurisdiction to consider the habeas relief at all. The, the Second Circuit said, look actually what's going on here are, these are challenges to the arrest and detention, not to removal. And so, the, the district court is, is fully empowered to resolve that. The Second Circuit then ordered that Öztürk be herself moved to Vermont no later than some point next week, I think maybe May 14, so that further habeas proceedings she can actually carry out in person.

So that was, that's, that's sort of the long and short of, of what happened in, in Öztürk and, and then, you know, as you said that, that happened before what Anna just talked about today in, in, in the district court.

Benjamin Wittes: And, alright, so, which brings us to the other court, Second Circuit case involving students in Vermont, which is Mohsen Mahdawi. How does that one fit into the picture?

James Pearce: Yeah, so in the Mohsen Mahdawi case—and to remind folks, this is the Columbia undergraduate who came to the United States in, in 2014 legal permanent resident, and then was actually in Vermont in mid-April for his naturalization interview, presumably thinking at the end of which he would be a naturalized citizen. Little did he know that a month before, unknown to him, he had been determined removable, and so at the end of that interview is, is arrested and detained. And as I think many folks who followed this story know he was actually released, per the district court order at the end of April. And so he's now out of, of custody, made sort of a, a, a moving speech from the courthouse steps.

The appeal here was so, so there were two, two things that the government appealed in in this particular case. One is the district court in Vermont overseeing his, Mohsen Mahdawi’s case had entered a TRO and then extended it—that's, by the way, what made it appealable—that did two things.

One is, it did not, it, it was—it enjoined the government from either shipping Mahdawi down to Louisiana. If I understand the facts correctly, it seems as though the government had intended to take Mahdawi down to Louisiana as well. But like they missed the flight. It sounds very sort of, sort of, odd, sort of, and, and perhaps folks know, know more about that. So anyway, he's been in Vermont.

And and then the second part that the government sought to appeal was in fact the, the release order Mahdawi released from, from custody earlier this week. The arguments were not really on the merits. They were all the sort of very similar jurisdictional claims, in other words, the, that the Immigration and Nationality Act doesn't even allow the courts to preside over that largely for the reasons that the, the, the Second Circuit had already spelled out in Öztürk. So I should say the Öztürk opinion dropped, I think it was two days ago. The Mahdawi opinion just dropped a little bit earlier today though relied in, in good part on the, the reasoning in Öztürk.

And so the upshot of all of that is Mahdawi remains outta custody. The appeal will move forward of these, of these two matters, both the extension of the TRO and his, his release from custody. But, but he will be out while that, all, while that all happens.

Benjamin Wittes: Alright, so of the three big student cases—students detained because Marco Rubio didn't like their op-eds or protest cases—all, two of the three are now free on bond while their immigration case goes forward. Only Mahmoud Khalil, right, is still detained. Is that correct?

James Pearce: I believe that is correct, yes.

Anna Bower: And can I just say for, for folks who maybe like didn't quite get the posture of the case here, these are just questions about whether they should be released you know, pending decisions on, you know—they've got, there's still litigation to come that actually gets to the heart of the issue about whether or not the, their First Amendment rights are being violated, Fifth, like, you know, due process rights. There also still may be—at least in the Öztürk case there's still, and I assume in these other cases as well—there still may be removal proceedings in immigration court that's proceeding on the, you know, parallel but different track.

So, you know, just keep in mind that, 'cause I think that's one thing I noticed when I was live posting about this is that a lot of people were confused about, you know, what the posture here is, and it's basically just letting someone out while these other, you know, the case is proceeding to the merit stage.

Benjamin Wittes: Right, so if we think about two—there are actually several separate issues these cases raised, but there are two big ones, leaving aside, shuttling people between states to avoid the jurisdiction of the courts.

One is, can you revoke somebody's visa, student visa or lawful permanent residency if you're the secretary of state because you don't like their op-ed or, or their protest activity, and then sort of magic them into an illegal alien who you then deport on that basis. The second question is, if you can do that, can you lock them up in—having magicked them into an undocumented alien, do you get to lock them up while their removal proceedings are pending? And we have essentially no movement on the first question, but we have pretty substantial movement on the second question, at least in two of those cases.

But on the first question, Preston, we have some developments in the case of AAUP v. Rubio. And AAUP is not—contrary to everything we're gonna talk about subsequently—is not somebody's initials or an individual's initials who's been you know, gonna be deported to sit, to the Salvadorian gulag. It's the American Association of University Professors.

But what is AAUP v. Rubio and what does it have to do with all of this?

Preston Marquis: Yeah, certainly Ben and yes, AAUP is neither someone's name nor is it a knockoff of sort of, a, a group of retired people who are looking for something else to do.

Benjamin Wittes: Right? So we're, we're gonna get to all of those people who are just basically anonymous collections of initials. But if we're gonna ask Roger about those people, so, you know, here, you just gotta take AAUP as a trade group that doesn't represent old people.

Preston Marquis: That's right. So AAUP v. Rubio, just as a reprise, is a case that is looking holistically at what the Trump administration is doing with regard to a lot of these student cases. And so a lot of these student cases are proceeding on an individual basis; AAUP is trying to target the underlying policy itself in a way that that, that is able to produce some sort of injunction that, that stops the, the Trump administration from doing exactly what you described, Ben, which is essentially giving the secretary of state sort of broad discretion to to, to find students or educators in inadmissible into the United States, which then triggers a bunch of immigration proceedings.

So, a couple of weeks ago when I believe we, we last spoke about this case the the plaintiffs and the defendant had, had squared off in front of Judge Young in the district of Massachusetts the, the cases being brought by the Knight Institute on behalf of AAUP, and they had gone to, gone before judge—sorry, Judge Young, I should say, William Young—seeking a preliminary injunction to, to try to get, to, to try to get some initial movement on stopping the, the Trump administration.

Judge Young at the time did, did not rule from the bench. In fact, Judge Young took a bit of an unconventional step of, of taking the, the motion for a a PI and and, and flipping it instead into a trial on the merits, which I, I think caught, caught some of the litigants off guard a little bit, although if you listen to Judge Young he, it's, it's actually a common case management practice that, that he himself uses. But either way it seemed like the, the litigants were going to head towards a trial on the merits, which is ultimately what is happening.

But before we got there when, when the litigants were before Judge Young, they, he allowed them to essentially argue the competing briefs as a motion to dismiss, and the, the government's primary arguments at that stage were mostly jurisdictional. And, and I sense a little bit of a trend based on some of the previous speakers as well, you know, the government is trying to knock a lot of these cases, AAUP included, out on jurisdictional basis. And in this case, a lot of those jurisdictional claims or arguments came down to the idea that the Immigration and Nationality Act, the INA sort of jurisdictionally strips the ability of, of, of district judges, to to rule on, on these sorts of cases because of how Section 1252(f) and (g) are, are, are constructed.

The, the government also tried to bring a, a pretty strong standing argument to knock out AAUP, sort of, trying to make, bring the, the argument here that the, the case wasn't redressable by the court under sort of broad theories of executive discretion when it comes to enforcement of the law and also attacking AAUP standing just to, to bring organizational or associational standing on behalf of the the individuals in question.

All of those were, were bundled together at, at least in the briefs as opposition to the, the PI. Judge Young took it all under advisement, and about a, a week later handed down a ruling that largely denied those jurisdictional arguments. And so the, the case is going to proceed to trial in, in early July in, in such a posture as to give the, the plaintiffs wide, wide room to ventilate a lot of their First Amendment arguments.

And, and just from the, from, from the order itself, it, it, it, it seemed like Judge Young was, was pretty receptive to the, the merits of what AAUP is trying to do here. And, and he noted that the, the, you know, it, it was, it was Judge Young's perspective, at least in, in his memorandum, that the, the plaintiffs had shown that you know, some of these non-citizens were plausibly being targeted specifically for exercising their, their right to political speech.

He also extended, I think, a, a lot of receptivity to AAUP’s argument that, that this was a a final policy of the sort that the court could actually reach and act upon. One of the, the arguments that the government had made before judge Young and in their, their written advocacy as well, was that, you know, there, there isn't actually a policy here. Despite what Secretary Rubio might be saying on the news, despite what the executive orders might sort of point to there, this, you know, what, what the administration is doing is sort of run-of-the mill law enforcement.

Judge Young didn't seem to buy that argument in, in his order. He, in fact, he noted that you know, an unwritten policy could be even worse because in his words, a speech code that is unwritten but enforced with harsh penalties, you know, could be even more likely to chill broad swaths of speech than one that is written down and actually clarifies what is what is, what is forbidden.

And so I, I think Judge Young, when the, when the case comes before him again in, in July, you know, I think the burden will be for AAUP to, to show that this, that there is like a coherent policy to all this, and it is not what the government is claiming, which is, you know, that it's sort of a creation of AAUP’s own mind. And I think if, if they can meet the evidentiary standards that, that Judge Young is going to put before them you know, the plaintiffs are gonna have a, a pretty strong case on the First Amendment merits here.

Benjamin Wittes: Alright, thank you Preston. Folks, we're gonna be back for more with the three letter initial part of the immigration cases, and we're, we have a lot of three letter initial cases to go through today, but before we do, let's take a break from the litigation and talk about politicization of the Justice Department. We lost Ed Martin this week, and I'm heartbroken about it. Quinta who is Ed and why, why are we devastated that he has been removed from the field of play and relegated to be the pardon attorney?

Quinta Jurecic: Yeah, I was gonna say Ben, I don't think he's really been removed. I think he's been shifted into a, a different role at, at Main Justice where he will, as you say, be the pardon attorney. I believe he's also going to play a role in the Weaponization Working Group, and there's some other thing that he is also doing there. So he will be a busy man.

Of course we are referring to the—I'm not sure if he is actually still the Interim U.S. attorney or not for the District of Columbia, appointed not under the Federal Vacancies Reform Act, but under a different statute that allows the president to appoint an interim U.S. attorney for a period of 120 days. Martin was running down that clock; I believe his last day would have been May 20.

Trump had nominated him to serve as the Senate confirmed U.S. attorney, but it became, I think it's clear to say, gradually apparent over a period of weeks that his nomination was in trouble, in part because of information that he had failed to provide to the Senate with adequate candor while filling out the questions that Senators had for him, various comments of all, all types, many related to January 6, many simply sort of, odd political comments. There's also some reporting about his conduct while serving as an attorney in I believe Missouri, that raised questions. And so there had been questions

Benjamin Wittes: Also, the 90 appearances on Russia Today. You know.

Quinta Jurecic: It seemed a lot. You just wanna go on television. So there had been questions about what would happen to his nomination. I had been counting down the days just 'cause outta curiosity of what would happen. And then we learned earlier this week that Senator Thom Tillis in North Carolina would not support voting Martin out of the, out of committee and moving his nomination to the floor, at which point–

Benjamin Wittes: Just, I'm gonna pause you there because this is the same, is this the same or a different Thom Tillis who was just furious at the scurrilous attacks on Kash Patel and the idea that he wouldn't be an ideally qualified FBI director?

Quinta Jurecic: It does suggest some cognitive dissonance, especially because Senator Tillis was very enthusiastic on Twitter about Trump's next interim appointment to serve as the U.S. attorney for the District of Columbia, who is of course none other than Fox News's Jeanine Pirro, who I don't have the tweet in front of me, but Tillis thought it was a great idea. So I will not attempt to peer into the mind of Tom Tillis, but for whatever reason, he decided that Martin was not a good fit and Jeanine Pirro was.

Benjamin Wittes: Was pro Kash Patel, pro Jeanine Pirro, but draws the line at Ed Martin. Anna, what do we know about Jeanine Pirro?

Anna Bower: Well, Ben, Jeanine Piro has at least been a prosecutor before. She was a prosecutor in New York for more than a decade, I believe it was something like 12 years, so there is–.

Benjamin Wittes: Yeah, where she, where she famously was responsible for the that serial killer, about whom there—am I, isn't that right? That she's in the, the she appears at some length in the documentary about that. I can't remember his name. Robert-

Anna Bower: Durst, is the–

Benjamin Wittes: Durst. Right. That's a great documentary. And she, appears in it and seems pretty sober and normal.

Anna Bower: Yeah. But I think if I recall correctly, wasn't Is that the one, something happened and then he ended up going on to be released and—

Benjamin Wittes: Oh yeah, she lost the case.

Anna Bower: Yes, okay, he, and then he killed two more people, I think, allegedly, or, or something to that effect. Look, I'm not a I haven't seen the documentary, so, you would know better than I do, Ben, but but yes, I, I believe that she was involved in some capacity in the, one of the Durst prosecutions.

But, you know—despite her at least having a, a history as being a prosecutor on, unlike Ed Martin—has been a Fox News host for, for many, many years, has been a an ally of Trump's, and, and she has been known to kind of be one of his favorite Fox News hosts.

And Ben, as we know from covering the New York trial every day, she was in court a lot during Trump's trial in New York. And I actually am hoping, Ben, that maybe you can tell us. Finally the story that I've been wanting you to tell for many, many months now about Jeanine Pirro–

Benjamin Wittes: About my encounter with her in court?

Anna Bower: During the trial, what did you observe about Jeanine Pirro in court in New York?

Benjamin Wittes: Yeah, so this was, I wish I knew the exact day, but this was one of the relatively few days that I chose to sit in court rather than in the media monitoring room. And so, you know, normally Anna or Tyler was in the courtroom and I was in the media room, but this particular day I decided to sit in court. And you don't really get to decide where you sit. And so they put me next to Jeanine Pirro, who was there with a, a group of her assistants, all of whom were very young and dressed just like her. And she was sharing with them pictures of her dogs, and she had colored pens that she was taking notes with. It was really like, kind of being in middle school. And she was very nice, we had a lovely chat.

And then I looked down at her notebook and it said in big block letters what a cast of characters, exclamation mark. Soros funded DA, conflicted judge. I, I forget the other lines on this list, but it was, you know, her her notes to herself that she didn't really need to be in court to have written, but it was, it was awesome. And I liked Jeanine Pirro and I am enthusiastic about her ascendance. And so I hope when Judge Jeanine, when you come for us at Lawfare, you remember that you and I had a nice chat that day and we got along great and I said nice things about your dog.

Anna Bower: Yeah. Can I add one more thing though, on the Jeanine Pirro stuff? We mentioned that Thom Tillis seems enthusiastic; we wrote a statement after Trump announced Pirro’s appointment as interim U.S. attorney in dc which is the, the term that Trump used in his Truth Social statement. But when Tillis actually wrote his statement, it said, you know, she's a great choice for U.S. attorney, not, you know, U.S., interim U.S. attorney.

So it, and I, I do wonder, you know, this is just speculation, but you have to wonder, given that this happened with Martin, where Martin was appointed as the interim U.S. attorney and then, you know, nominated to be the permanent U.S. attorney in D.C., you, you have to wonder if maybe that's what's going on here with Pirro. She was at Fox News for 14 years. You know, you'd have to wonder is, is would she be willing to leave Fox News—you know, a cushy job that she seems to like—to go to a 120 day interim appointment.

And maybe the idea is that she'd just go back to her old job. I don't know. But you know, just something to keep in mind is that potentially this could be a permanent rather than interim position.

Benjamin Wittes: Yeah. Just to be—I think that's a, a, a, a very smart point. You know, unlike Ed Martin who was not, who was only marginally employed before this you know, she's leaving a, a, a good gig and, so.

Alright, meanwhile, less good—great day for Jeanine Pirro, less good day for mayoral or gubernatorial candidates in New Jersey and the attorney general of New York. Quinta, what's going on there?

Quinta Jurecic: So I have less visibility into the New York issue because I, I only consider things that are to the west of the Hudson River as a, a proud new Jerseyan. But I, I can speak to the—so the, the mayor of Newark, Ras Baraka, was just arrested during a protest at a ICE facility that was, is being stood up in Newark and which has been the subject of a great deal of controversy.

I believe he was with, he was there with a number of Democratic members of the House of Representatives who were also attempting to enter. They were not arrested; I believe that's because members of Congress actually have a statutory ability to enter such facilities to conduct oversight work which Mayor Baraka does not. I think it will be interesting to see what the follow on effects of this are. So Baraka was arrested by, I believe by ICE agents. Alina Habba was appointed the interim U.S. attorney for the District of New Jersey, I believe, under that, that same statute; immediately posted about it on Twitter that he had been arrested, that, you know, no one is above law, so on and so forth.

It's a little hard to know what to make of this right now. I will say that Baraka, as you had mentioned, Ben, is running for governor of New Jersey. There is a democratic gubernatorial primary coming up in the next month or so. And there's kind of been a fight among Democratic gubernatorial candidates over, you know, how far left, how far right, how pro-immigration, how sort of immigration reform focused they should be. And Baraka has been more on the end of sort of embracing immigration, you know, fight Trump on everything.

So I think there's a very good argument that this is very good for him and that the administration may well have been off more than it can chew here, and, you know, might end up sort of advantaging a more adversarial, pro-immigration sort of portion of the New Jersey Democratic Party, which would be separate from, you know, New Jersey politics, which of course I care about, I think is relevant in so far as there are, you know, there is this ICE facility that the administration is attempting to construct. It is unfortunately right next to New York, there's a big immigrant population, and so that could potentially hold real significance.

Benjamin Wittes: And does anything, have anyone have anything to add on the apparent investigation of Letitia James in New York? Apparently not. I will just say there is an apparent investigation of Letitia James.

I will say the documentary I was thinking of is called “The Jinx: the Life and Deaths of Robert Durst.” It is fabulous, if you like movies about billionaire serial killers and their inept Westchester prosecutors, and it will give you a different view of Janine Pirro who is in it reasonably articulate and reasonably professional and completely ineffective at neutralizing a billionaire serial killer.

Alright, let us turn to the three letter name cases. Roger. It's, it's your turn. Let's start with the original three letter initial, three, initial case J.G.G.. Roger, what's been going on in J.G.G.?

Roger Parloff: Yeah, well, as you remember this began with five individuals. They, we use their initials for confidentiality. And it was being filed—they were the rep representatives for a class—that was March, early morning, hours of March 15, and, but Judge Boasberg had time to protect the five individuals, but in the middle of his TRO hearing about whether to grant a class, the government sent plane loads out of the country to CECOT. And, and so the class is now in CECOT, the Terrorism Confinement Center in El Salvador.

So at, and then it went to the Supreme Court and the Supreme—it wasn't originally signed fi filed as a habeas, Supreme Court said it had to be. That meant you have to file in the districts of confinement. So the original five were, were never in D.C. so they filed their own class action habeas, one in the Southern District of Texas, one in the Southern District of New York.

And meanwhile, what's happened here is that the ACLU lawyers, and I think Democracy Forward also, have tried to, now they've filed an amended complaint for two different classes. And one class is actually the same class. It's the people in CECOT. There's another class that is people in this country in criminal custody, but who are also worried about being that any moment ICE could come in and take them and, and take them to CECOT, because they would, under the theory that they fall under the Alien Enemy Act proclamation.

So, this was a hearing on I guess May 7, two days ago, about whether he would certify either of those classes and whether he would certify either of those classes and whether he would. And the goal, at least with the CECOT people, is to facilitate their return, all of them, or, or actually to somehow get them adequate due process to adjudicate whether they were all in the midst of asylum claims and, and to see if, see if they have any rights.

Anyway, he seemed receptive, but the whole—with the CECOT people, which I think is who we're most focused on, he, the crucial question is constructive custody. Does, does the U.S. still have any custody over these people or joint custody at least, 'cause these are. And, and he obviously Judge Boasberg was already pretty convinced that they, they, there was a lot of evidence that the U.S. has some joint custody, and he, he quoted he said something to the effect of, but didn't the president say just last week that he could secure the return of Mr. Abrego Garcia simply by picking up the phone and asking the president of El Salvador to release him, is the president not telling the truth?

And the response of the government was was sort of along the lines of well, sometimes, you know, he may exaggerate his influence. You know, we, we can't really rely on that sort of statement. I there, there's obviously a lot of other statements that public officials have made at this point—Kristi Noem, Bukele, Rubio—evidence of a contract, renewable contract.

So, and he also said, Boasberg also said, there's no really no difference between the custody of Abrego Garcia and these petitioners, right, because I, I think both re he was saying that both with, with respect to the fact that Trump thinks he can get Abrego Garcia back, but also that the Supreme Court has already ordered that, in essence that the government facilitate the return of a, of Abrego Garcia, so they must think that at least you can, you should make an attempt.

So, nevertheless he seems to want—what he ordered was for, he gave the government a chance to file more by tonight about why they think he doesn't have custody, if they will, you know, provide something more specific. They've given only the vaguest conceivable declarations and saying that, you know, El Salvador is a sovereign power and that, that sort of thing.

And then on Monday he's giving the ACLU the chance to ask for certain limited discovery of, of the same area. I think honestly the ACLU attorney Lee Gelernt as not eager for any more discovery 'cause he knows it's a dead end. It's gonna waste time, they're gonna invoke this, invoke that.

Benjamin Wittes: And, and the record as it is, is it so suggestive for his purposes,

Roger Parloff: Right. But he may feel obligated given the way this was all Boasberg's idea. So I don't know if he can—he might say, okay, limited request for documents, show us all the contracts that you know, and then they'll invoke the state secret and it'll all be in the record. So, that's sort of, I think that's where that stands.

Remember, we, we do have an outstanding, that contempt order. The D.C. Circuit issued an administrative stay, but it's still in effect, and they fully briefed. The, the, the government is trying to get the contempt of probable cause of to believe that they committed contempt dismissed on the theory that he didn't have jurisdiction at the time. And and I think the, the ACLU is arguing this is not an appealable order. So we, we haven't heard that. That's before a very, that's before a conservative motions panel and I think that's where J.G.G stands.

Benjamin Wittes: Alright, so we have several three letter cases that involve the same question, which is whether the Alien Enemies Act was properly invoked. All of them seem to have gone the same direction.

So tell us a little bit about the cases in which various people with three initials are challenging the invocation of the Alien Enemies Act.

Roger Parloff: Yeah. So pretty quickly, G.F.F, which is in the Southern District of New York, that's one of the spinoff cases. And Judge Hellerstein in New York—this is a class action—granted a prelim, preliminary injunction this week, and he found the proclamation was invalid—it doesn't, the Alien Enemies Act doesn't apply to this situation. There was no invasion, there was no incursion within the mean, predatory incursion within the meaning of the act.

Also, he, he, he noted that the terms the government has been trying to use it to whisk people out with no due process whatsoever. He focuses on a section of the Alien Enemies Act that isn't usually quoted by the government, which does say something to the effect—it seems to contemplate that it, it says it, it provides that courts will have jurisdiction and it shall be their duty after to when there's a complaint, after a full examination and hearing on such complaint and sufficient cause appearing, then they can order the, the, the person to be removed. So it sounds like in 1798, they were contemplating a little more procedure than than, than Trump and, and that Pam Bondi have been contemplating, but that's how he read it.

And then there was a very similar preliminary injunction order issued in the D.B.U. case, which is another class action in Colorado, also finding no invasion, no incursion; that the Tren de Aragua is not a quote foreign nation or government. And I think James pointed out last time that one of these cases, the J.A.V. case, which also ruled, had a similar ruling in the Southern District of Texas, that the ruling does sort of sound like they’re critiquing this particular proclamation, and that maybe it's conceivable you could redraft the proclamation and, and, you know, allege it better and, and take another run at it. I, I think that might be true with respect to convincing the Colorado judge that Tren de Aragua is a foreign state. I don't see how they can get around the invasion and the, and the predatory, incursion rulings.

Then let's see, who else do I have? Who do we have written down there? There's A.S.R. is a case in Pennsylvania; we're still waiting for a, a preliminary injunction. I think those are the Alien Enemies Act cases.

Benjamin Wittes: Alright, well, let's go through some of the others then, because we also have an ill-conceived scheme this week to start shipping people to Libya. What happened with that?

Roger Parloff: Yeah, that's in the, that raised eyebrows in the D.V.D. case. D.V.D.—this is for, I'm scrolling looking for D.V.D.—this was the case, it's a class action for people to prevent people from being shipped to third countries without getting notice beforehand. There are people that have removal orders against them, but, there's, they've also people like Abrego Garcia, where they get a with, withholding of removal order, meaning they face persecution in their home country, don't, don't send them there. You could also get something like that under the Convention Against Torture. And then there are just people that are removable, but with countries we don't have relationships with, like Venezuela and, and, and Cuba.

So, and what the government started doing under Trump was just, okay, send 'em to Mexico. It's says remove, they're, they're removable; just send 'em to Mexico. And that's never how it's been done in part because we have these laws against, you give notice and then they can say, here's why I fear torture there, or persecution there. And remember, you know, like there's 64 countries where it's very dangerous to be gay. So, you know, there's a lot of countries where you people might have a legitimate claim of not wanting to go there.

And so the, when people read about this, what was going on in Libya on May 7—I mean the, the, the, the, Trump administration was planning to send people there—they ran into court to get a TRO. It was a strange thing to do because it's already obviously illegal under the existing preliminary injunction, but in case there was any doubt, the, the judge tried to clarify the order to say exactly that, that, you know, if there's any doubt in your mind, this the allegedly imminent removals would clearly violate this court's order.

And the reason she's doing that, she has also is that even after her TRO, several people have been removed, despite this order, using a bank shot through Guantanamo. The, the DHS sent them to Guantanamo, and then they were transferred to DOD, which was not a defendant, and then DOD sent them to either CECOT or Mexico, I'm not sure where. And, and so she has tried to say, you know, that's, don't do that anymore; don't, don't, DHS don't send people, don't release custody of somebody to another agency without giving them all these protections that are required. And we'll see if they do that.

She's also suggested that it might be wise to—I I, I'm sorry, it might be a he in this in this— the judge here might be wise to bring in DOD as a defendant.

Benjamin Wittes: Alright. We have one more three letter case. Oh, one, one more named case.

Roger Parloff: I, I'd just add in the, in it it, the evidence they had did go beyond news reports. You know, they were getting–

Benjamin Wittes: They had, they had, yeah, people who were informed that they were imminently to be deported to Libya.

Roger Parloff: Exactly. And, and Laotians, Vietnamese, and Filipinos mainly. And, and they had—there were public flight plans showing a flight going from San Antonio to to–

Benjamin Wittes: To Libya, which is not a common flight path. Actually, there aren't that many regularly scheduled flights from San Antonio to to–

Roger Parloff: Misrata, Misrata.

Benjamin Wittes: Misrata. Yeah. Yeah. Alright, so, last three letter, case J.O.P. What's that one?

Roger Parloff: Oh yeah, that's, that's the other. This is another guy in A.K.A. and another judge in Maryland and who has ordered him, has ordered the government to facilitate his return. He was covered by a different preexisting class action prior to, under the first term, Trump's first term that related to unaccompanied alien children. And he was, they weren't supposed to be.

Benjamin Wittes: This is the Cristian case, right?

Roger Parloff: Yes. And Politico actually identified the man; his, his name is Daniel Lozano-Camargo. We, we can continue to call him Cristian. And he was removed. They've been trying to get him back apparently under the theory that he was Tren de Aragua. He's 20 years old at this point.

And one of the things the government has been trying to do is to say, is to sort of, we don't have to go through any process because when Secretary Rubio in February designated Tren de Aragua a foreign terrorist organization, that means people that we deemed to be Tren de Aragua, any protections they might have under asylum vaporize. And you don't need to go before an immigration judge, and you don't need to have anyone verify that they really are Tren de Aragua. Take our word for it.

Benjamin Wittes: Which by the way, you know, I, I, I know the material support statute pretty well. I don't—first of all, the material support statute is a criminal statute that has to do with the provision of foreign, of, of things, of value to designated foreign terrorist organizations. It doesn't, by its terms, have much to do with immigration at all.

And the idea that a foreign terrorist organization designation, you know, changes people's immigration status—I don't know where that comes from. I see it showing up in their briefs repeatedly in, in the various, you know, cases where that involve Tren de Aragua or MS-13, but I don't know where it comes from.

Roger Parloff: Well, I don't know. I, I, I sort of assumed that if, if, if you were—well, I, I just don't know. I, I do know what they produced was what they called an indicative asylum decision, where somebody said, where DHS said if he were to go before, he's now ineligible because he's been designated foreign, because Tren de Aragua has been so designated.

It also said it has some other—and it, it, it was redacted—it, it gave, apparently it gives some idea of why they think it's Tren de Aragua, but-

Benjamin Wittes: Right, but I, I, I just, they said the same thing in Abrego Garcia, like now he's MS-13, so none of the other stuff matters. And I honestly–

Roger Parloff: I think it’s triple hearsay. Yeah.

Benjamin Wittes: I honestly don't know where that comes from. I mean, so, you know, okay, he's not accused of giving any material support to MS-13; if you were, that would be a crime under, under the material support statute. But I don't really know where the idea that all your other immigration claims go away if you're dealing with a, a, you know, a, a, a designated foreign terrorist organization. It's just not part of the regime, as I understand it, anyway.

Alright, we got one more case. Who is Badar Khan Suri?

Roger Parloff: Oh, yes. Maybe this, this might have maybe we–it's hard, hard to know where. This is another one that's really more similar to the cases we were talking about before. Mahdawi and Öztürk and Khalil. Dr. Badar Khan Suri is–

Benjamin Wittes: Oh, is this frog embryos lady?

Roger Parloff: This is a man.

Benjamin Wittes: Oh, okay. So sorry. The frog embryos has a Russian name. Yeah. Yeah, so which one is this?

Roger Parloff: This is a postdoc at Georgetown University, PhD in conflict studies, he's teaching there. And he resides in Rosslyn, across the bridge in Virginia. And his wife is a U.S. citizen who lived much of her life in Gaza, and her father was a former, former official there in the government in Gaza.

So people on social media began to say that the father of his wife has ties to Hamas. And on March 15, Rubio issued one of those memos saying that his presence and activities in the U.S. would have potentially serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest.

So then like the, he was arrested on March 17, and then just as James described, there's a mad dash to try to get him to the Fifth Circuit, get him out of Virginia. He, he goes to four different detention centers in Virginia. And then they get him and, and his, his, his lawyer isn't sure where he is. The lawyer brings the lawsuit in the Eastern District of Virginia, which is Alexandria, and it turns out that by then they, he was in transit.

They, he had gotten as far as Louisiana and he wasn't actually in a detention center, but the, the plane had landed. I mean, honestly, these are the facts you have to look at in order to resolve these cases. It's so, it's so bizarre. But, and he was on to, on his way to the Northern District of Texas where they were gonna, they had decided to house him and eventually he would have a hearing supposedly in the Southern District of Texas 500 miles away further.

Anyway, so the question was, could he, could you leave the case in Virginia, even though he had already gotten into, they'd already gotten him to Louisiana. So it's, it's interesting because she—the basic law, of course, is you're supposed to bring it in, in the district of confinement, and the defendant is the immediate custodian, the warden.

But there is such a thing as the unknown custodian exception, and she found that that applied here, that they didn't know who, who it was. And and in that case, you can use the ultimate custodian. The ultimate custodian here is, is Kristi Noem. And so, she also relied on the, the case that covers all this stuff—the, the, the founding case is Rumsfeld v. Padilla—and there was a concurrence there by Kennedy. And he said, if there is an indication that the government's purpose in removing a prisoner–

Benjamin Wittes: Is to evade the jurisdiction of the court. I remember this concurrence.

Roger Parloff: Yeah. It was to make it difficult for the lawyer to know where to file and or if the government kept moving him, so filing could not catch up with the prisoner. And she found that that provided an alternative basis, I mean, that, that too applied here. And she, she mentioned she said it appears that respondent's goal in moving petitioner was to make it difficult for petitioner's counsel to file the petition and to transfer him away from the government's chosen forum. And she, she said she looked at the, she mentioned the Mahdawi and the Khalil and Ozturk case and looked as a pattern of what they're doing here. And she said just as a habeas, petitioner should not be permitted to forum shop, neither should the U.S. government.

So, that's basically—oh, so, so anyway, that defeats the motion to dismiss on, on May 14th. There will be another hearing on whether to release her and whether to transfer her and whether to transfer her back to the Eastern District of Virginia. Him, sorry, it’s him.

Benjamin Wittes: Alright, let's let's talk Abrego Garcia, whom we have alluded to. We have 19 minutes left and we've got some material to get through. So, I ask everybody for expeditious answers. Anna Bower, where are we with Mr. Abrego Garcia?

Anna Bower: Alright, so quickly, we are still in discovery around what the government has done to facilitate the return of Abrego Garcia. We know from filings that so far the plaintiffs have been able to depose Cerna, Mazzara, and Katz. Those are the three people who the government has been using to file declarations and their status updates, people, you know, one, Cerna from ICE, Mazzara, DHS and Katz from State, I believe.

And, and after these depositions took place, the plaintiffs then filed a motion in which they sought to be granted leave to take three additional depositions. They say that they are still in the dark after taking the depositions of these three individuals who previously filed declarations in the case. Importantly Ben, they want the three people who they want to take the depositions of now, they want them to be from DHS State and—DHS State and not the White House, they say maybe the White House—and DOJ, excuse me thank you. And DOJ.

And they want them to be 30(b)(6) witnesses, and that means that there are people who kind of like represent the institution or the department. So they're not necessarily people who are just talking about their own personal knowledge. It would be a requirement, you know, that they be kind of fully briefed about what exactly it is that the agency itself knows, not necessarily just what those people have personal knowledge of themselves. I think the idea is that, you know, maybe that would allow them to get some more information.

But a bigger kind of issue that's looming as well is that there's a filing that was sealed on the docket that was a motion for conference on discovery. Previously, we've seen one of these motions for a conference in which we, you know, knew that the government was invoking a lot of privileges. Again, this is a sealed filing, so we don't exactly know what is is happening here in terms of what the content of the motion is, but we do know from a briefing schedule that Judge Xinis issued in the past few days that in that motion for discovery conference, the government at some point invoked state secrets and deliberative process privilege. She has now ordered the government by, I believe it's on Monday, to file a, a basis for the invocation of those privileges. And we may well then get some more information about what exactly the government said in that Motion for Discovery conference, because by today whoever the proponent of the sealing was for that particular filing is supposed to have to file something, you know, arguing why it should be sealed or else Judge Xinis is going to unseal it.

So that's kind of where we are. Basically, we have this briefing schedule where we're, we're potentially gonna get more information from the government about why it's invoking these privileges. We have this looming issue about whether or not the defendant, or excuse me, the plaintiffs, will be able to depose more people to get more information about what exactly is being done to facilitate Abrego Garcia's return.

Benjamin Wittes: Alright, it is time for our weekly game show segment: Let's Dismantle a Federal Agency. Our player this week, as most weeks is James Pierce. And James, we're gonna dismantle three federal agencies today. Let's start with Radio Free Europe. What did you do to dismantle them?

James Pearce: Well, I can tell you we're gonna dismantle more than three, but we've got three updates that I'll, that I'll keep brief since we're in a lightning round here.

But yes as we've talked about over I think the past couple of weeks, the Radio Free Europe, Radio Free Asia, Voice of America were all up in a sort of joined together. I don't think they were formally consolidated, but the government sought a stay pending appeal. All of those institutions had prevailed in front of Judge Lamberth who had granted preliminary injunctive relief.

The, the, the government appealed, went in front of the, the motions panel that's been hearing a number of these cases, Judges, Katsas, Rao, and Pillard. And in a 2-1 decision early in the week, that panel stayed the injunctive relief—in other words, undid, what Judge Lambert had, had done—did not require the payout of funds or the sort of halting, the firings, the terminations or the placing on administrative leave that were otherwise in process.

The challengers—the various, I'll just call them the various Radio Frees—then went and sought en banc relief, very similar to what had happened in the independent agency cases where you're kind of ping ponging back and forth, and then just late in the evening on May 7, the en banc court administratively stayed what the panel had done and so didn't, didn't vacate that stay, but administratively stayed it.

A lot of interesting back and forth that I won't go into here about the, the likelihood of success on the merits; to, to sort of give the, the, the overview of it, whereas Judges Katsas and Rao found a lot of the jurisdictional and sort of threshold arguments, fairly persuasive, one would assume the en banc court does not. At least there's no, there's no analysis in the en banc’s administratively staying.

But Judges Katsas and Rao say things like this should not be before the district court, it should be under the Tucker Act in front of the Court of Federal claims or for the employment related challenges in the various employment bodies. So it'll be interesting to see how that ends up cashing out. It's only an administrative stay in the D.C. Circuit at the moment, so presumably they're gonna get to the, the merits when that is fully briefed up.

So that's the first kind of tranche of, of agency dismantling. The second is preliminary injunctive relief granted in the District of Rhode Island, it seems to be a hotspot for a lot of these cases. This is, is Rhode Island v. Trump. It's three, I will confess, agencies that I had not heard of, though it sounds like they do important work. It is the Institute—so it's states who are bringing the suits on behalf of, or, or challenging similar actions that we've seen, dismantling actions with respect to the Institute of Museum and Library Services, the Minority Business Development Agency, and the Federal Mediation and Conciliation service.

And so, the analysis in that district court opinion out of the District of Rhode Island tracks a lot of what we have seen in granting injunctive relief, finds that they're standing, finds that the claims are ripe, finds that the, the actions by the government to place many people on administrative leave, kind of cut off funding were arbitrary and capricious and exceeded the, the lawful authority under the Administrative Procedures Act, very brief constitutional analysis.

The government has not filed a, an appeal there. I think we've noted here before that for whatever reason, the government is very active in filing those in the D.C. Circuit, not so much in the First Circuit. Maybe it's assessment about their likelihood of success in front of that First Circuit panel, but, but, but no notice of appeal there.

Alright. Last one is a, a complaint that was filed earlier this week. I believe it's styled New York v. Trump, not to be confused with the New York v. Trump. That is the funding freeze case in Rhode Island, this one is in the District of Columbia. This is, this is about the dismantling of the Health and Human Services. I'm sorry, it's New York v. Kennedy. I, I misspoke, the, the lead defendant is Secretary Robert Kennedy. So, so very wide ranging, a 100 plus page, 101 page complaint raising again, a similar, similar claims that we have seen under the APA and and and constitutional claims about all of the again, efforts made with very, within various parts of the, of Health and Human Services to dismantle that agency. So that's just filed. I, I did not see yet a motion for TRO or preliminary injunctive relief that may be coming, but that's, that is another piece of litigation in the dismantling area.

Benjamin Wittes: All right, thank you. And I have brought John Hawkinson back because he has an update on the Ozturk case, a rather disturbing one. John, what are you hearing?

Josh Hawkinson: Right, so, the judge just filed an order on the docket and it reads as follows. The court held a telephonic conference with counsel for petitioner and counsel for respondent at 4:50 PM. The court reaffirmed its ruling made at the bail hearing earlier on 5/9/25. In light of the court's finding of no risk of flight and no danger to the community, petitioner is to be released from ice custody immediately on her own recognizance without any form of body-worn GPS or other ICE monitoring at this time, etc. Which is to say clearly she was not released immediately after the order this afternoon at around 1:30, and hadn't been released by 4:50.

Benjamin Wittes: Well, that is disturbing indeed. Thank you for the update. I'm sure this will be moot in some direction by the time the podcast audience listens to it, but that brings us up to date for now.

James we've had some Supreme Court action in the transgender military service case. It's temporary, but it seems pretty suggestive. What do we know?

James Pearce: Yeah. I would be remiss, by the way, if we're talking about the Supreme Court, not to mention that we lost today Supreme Court Justice, David Souter. So just want to, to recognize him while we're here.

But, yeah, so this we've talked about, again over the last few weeks, this is the, the transgender ban on the emergency docket where the, the government had basically tried to tee this up as this is about gender dysphoria, there are rational reasons why the government would want to block accession and retention. The other side had come in and said no, this is a sex-based classification that is full of animus. And the government had gone seeking a, a stay from the Supreme Court, and they got one.

We, we have no reasoning in the, in the Supreme Court's shadow docket. We, we've seen recently, sometimes the court has issued short kind of a couple paragraph analysis, sometimes they've actually done fuller opinions; here all we got was providing relief which means the ban can go into effect and that three justices, Justices Sotomayor, Kagan and Jackson would not have, have provided that relief to the government. So, yes, that, that goes into effect for now. They'll, they'll, that will continue to be litigated, but the ban at least is temporarily in effect now.

Benjamin Wittes: And do you agree with me that though people say this is not a ruling on the merits, it is, it in fact is very suggestive of a ruling on the merits because you issue a stay if you think they're likely to prevail. And since everybody's views of this subject are pretty well baked in, the difference between likelihood of success on the merits and will win is like this. And so if you have six justices who want to issue a stay, it almost certainly means there are five who were going to rule with the government. Is that, is that too simplistic of me or is that roughly fair?

James Pearce: I think that's roughly fair. I think this bodes very poorly for the, the challengers. I mean, maybe they can, they can develop a, a better record and, and make certain arguments that they haven't yet, but I don't think this is a good signal for, for the challengers.

Benjamin Wittes: Alright, before we zoom out, Roger bring us up to date on, on law firm litigation.

Roger Parloff: Last Friday after we, after we finished taping, Judge Howell dropped her ruling, the first ruling on one of these four challenged executive orders that was in the Perkins Coie case. I'm sure you read about it. I'll, I'll just mention that by my account, she found nine different constitutional violations. There was a long footnote in which she suggested she would've also found that it was barred by the Bill of Attainder clause, even though it's not a legislative act, but the plaintiffs hadn't asked her to do that.

And there was, I'll just draw attention, there was a, you know, there's a ton of amicus briefs, but apparently her clerks read them. And there was one that she quoted that, that I thought was moving. It was she, she, there was a footnote that was sort of devoted to drop kicking the firms that had, had caved and had entered into deals. And in that, she quoted the Law Office of Kenneth Pickering of Worcester, Mass, solo practitioner. He, he said even the decision about whether to file this amicus curiae brief came with significant apprehension about potential retribution, but when lawyers are apprehensive about retribution simply for filing a brief adverse to the government, there is no other choice but to do so. I thought that was pretty good stuff. Pickering is not related to William, I mean, Wilmer Cutler, Pickering Hale and Dorr.

Susman Godfrey had its preliminary injunction hearing yesterday, actually, Judge Loren AliKhan. It went about two hours and given that she'd already had a TRO hearing and, and issued a TRO, I was surprised, and it's gonna come out the same way, but she really she really had, the DOJ lawyer, Lawson—in a way I haven't seen—he was twisting, he was twisting it. 'Cause section one in the, the defamation section of the, these things that it says they committed racial discrimination and it gives, the only example it gives is that they give something called the Susman Godfrey Prize. They give it to 20 law students of color. And the Susman Godfrey had pointed out that it has nothing to do with recruitment, it's not employment related, it can't possibly violate Title VII. Would you agree that your only example of racial discrimination in employment is not apt? And Lawson kept saying I'd, I'd like to think about it a little longer, and she said, well, I want an answer before you leave. And it was very uncomfortable.

And I, I think again, it was this thing of, you know, being worried that the transcript might be shown to Pam Bondi and she'd, he'd be fired. But anyway, it was quite a, quite a hearing.

Benjamin Wittes: Alright, we're going to speed through the rest. We have, I have a question for Quinta. I of course have my weekly question for Anna, and we have two questions from the audience.

Quinta, I wanna zoom way out and just ask you, how's Trump doing in court in his first hundred plus days? You've, you've tried to spend some time over the last couple weeks thinking about the big picture of how courts are reacting to him. How's he doing?

Quinta Jurecic: Poorly, I would say. So yeah, I had a piece that went up on Lawfare this week which is titled “The Courts vs. Trump, Then and Now.” I don't have exact numbers just because of the, the sheer amount of lawsuits—and I definitely recommend everyone go and take a look at our litigation tracker—but it's in the hundreds and his record is not good. Bloomberg had some really striking data visualizations earlier this week, but he has been blocked in an extraordinary number of cases.

And I think what's particularly notable is that judges have been incredibly fast in, in doing so, I think because they are responding to an administration that, as we've seen, is very willing to take advantage of the slower moving judiciary to try to sort of get things in under the wire, whether that be moving people to El Salvador, you know, dismantling independent agencies, things like that.

So I think that, you know, after maybe an initial period where courts were kind of stunned by what was going on, it does seem like judges are starting to pick up the pace, and starting also to sort of maybe ease into the posture of not taking the government at face value when it makes statements in court, which is something that we've discussed at, at length in other contexts, often we discuss this under the heading of the presumption of regularity.

But I think you, you see it, for example, in in the Ozturk case for example, that the, the judge is clearly really paying very close attention to what ICE is doing and really not giving the agency a chance to kind of dodge its orders. I think you also see it in how willing courts have been to even take up these habeas cases by pro-Palestine student protestors at all. There's a, a real willingness to be aggressive to sort of counter a much more alarming aggression from the executive branch.

Benjamin Wittes: Alright. We've got two questions from the audience, and then the weekly question for Anna. I'm gonna direct the first one from Devin Nunes’s Lawyer to Quinta. Quinta, how humiliating is it that Eagle Ed Martin couldn't get enough support for confirmation as a U.S. attorney for D.C. and Trump decided to dump him in favor of Jeanine Pirro?

Quinta Jurecic: I mean, on the one hand, it, it doesn't look great on his resume, but on the other hand, I, I feel like he's moving into a position where he could have pretty significant influence in DOJ with, at the role of the office of the pardon attorney and on the weaponization committee. So I'm hesitant to say that the critics of Martin will get the last laugh here.

Benjamin Wittes: Yeah, he, he did also post an AI generated picture of himself dressed in papal robes yesterday or the day before, which– 

Quinta Jurecic: He is Catholic. I should note

Benjamin Wittes: I just wanna say, I thought, I thought that was going out with style. Alright, Sam,

Anna Bower: Can I just, oh–

Benjamin Wittes: Oh, no, no. Go ahead.

Anna Bower: Can I just say something really quickly on this, which is that I actually think the most humiliating thing for Ed Martin. 'Cause I do agree with Quinta, he's not going anywhere, he's, he is going to be there probably still sending really weird letters.

But on the day that Trump announced that he, or maybe it was the day before when it was clear that his nomination was probably not going to go forward he like tweeted out, fight, fight, fight, on, on Twitter. And so I, I honestly think the, the fact that he didn't, he, he seemed very willing to want to continue fighting for his nomination and rather than kind of just bowing out gracefully. But yeah, I, I agree with Quinta though. He's not going anywhere.

Benjamin Wittes: Sam asks, given the classic Trump strategy of opting for mass firings to de facto shut down agencies and undermine other government functionings, would there be any additional protections above those of other federal workers for immigration judges? I worry a mass firing could be used to justify forced deportations.

So I do not know the answer to the question of what job protections any of the immigration judges may have. There have already been a bunch of them fired. I don't think that will work to justify forced deportations or deportations without process, because what, what—you know, the, those entitlements are there by, by statute—what it will do is create huge backlogs and very lengthy detentions for people.

Now, can you get a few out the door under the Alien Enemies Act before a a judge slaps an injunction against that? Yeah, we've seen you can get 150 people, 200 people out, and then, you know, maybe you can do it again if you give them to the military at Guantanamo. But you're, the, the numbers that you're working with are small there. What you really do is create a huge backlog and people end up spending months and months and months, or sometimes years in immigration detention.

Alright, Anna, last question of the day. Who is the administrator of DOGE?

Anna Bower: Well, Ben, you will be shocked to hear that once again, we don't really know who the administrator of DOGE is, but I will say since we spoke last week and we talked about Elon Musk's plans to reduce his time at DOGE, as, as a kind of, you know, part of all of that news around Elon Musk, Fox News held a round table of DOGE involved people. And that roundtable included the famous Big Balls, Edward Coristine. I, I'm not entirely sure how exactly you-

Benjamin Wittes: He’ll always be Big Balls to me.

Anna Bower: Yeah, Big Balls was there other DOGE figures, 20 something year old DOGE figures who have access to sensitive government databases were there. Elon Musk was there. They were talking with Jesse Waters about their work. Guess who was not there? Ben, you'll be shocked.

Benjamin Wittes: The administrator of DOGE.

Anna Bower: Amy Gleason, the alleged acting administrator of DOGE on paper, was not there. So, just add that to the list and, and we'll see. And you know, I have been working for a long time on this administrator of DOGE stuff and oh, if who, if you happen to know who the administrator of Doge is or you have any information about the chain of command at DOGE, you can find my Signal in my bio on Bluesky or on Twitter. So let me know.

Benjamin Wittes: We are gonna leave it there. We ran six minutes over and I apologize for each and every one of those six minutes. From the gleam of light halo studio I'm Ben Wittes. Thank you, Roger Parloff, James Pearce, Quinta Jurecic, Anna Bower, and the no longer with us, Preston Marquis. We will be back next week.

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