Lawfare Daily: The Trials of the Trump Administration, June 26

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Hello, everyone, and welcome to Lawfare Live. Thank you for joining us. We have quite a lot to cover today as loyal fans, I'm sure, will have guest. So I will get us started. I'm Natalie Orpet, and this is Lawfare Live. It is 4 o'clock p.m. on June 26th. I am joined here by Lawfare Senior Editor's Roger Parloff, Eric Columbus, and Molly John Roberts. So we will get started with some news out of the Supreme Court. We had a couple of decisions yesterday, two of which we have been following very closely, and by we I especially mean Roger Parloff. So let's start Roger with Mullen v. Doe, which was the challenge to, temporary protected status and which has, as you have previewed before, would affect hundreds of thousands of people living in this country. So tell us what happened. What did the Supreme

Court have to say? Yeah, it was pretty much a total wipeout for the plaintiffs. These were, this is the temporary protected status program going back to 1990. It's Syrians and Haitians that are up here. There's maybe, I think it's about a thousand Syrians, but it's about 350,000 Haitians. So there were two big aspects. One was not that big a surprise to me, but they did find that the jurisdiction stripping statute in the TPS statute itself is broad. And so it wipes out all statutory challenges. That's 8 U.S.C. 1254A B5A. That's, I mean, it's a surprising thing in fact, given that this is a highly complex statute that describes all the procedures you're supposed to go through and says, you shall do this, you shall do that, you must give 60 days

notice for that. And all of that is why, doubt if the secretary disobeys, there's no challenge. And that's what happened here. It was pretty clear that the secretary did not consult with the State Department or any other appropriate agency before terminating these designations. But you don't even reach that question because the jurisdiction stripping statute bars review. The response to that had been that, yes, it bars review of the ultimate designation, but it doesn't bar review of whether you followed the procedures. And that's how courts have interpreted a very similar statute in the –

the Supreme Court has interpreted a very similar stature in the past, but that is rejected. So what remained was constitutional claims. The court has said in the past that there's a very high standard to assume before you'll assume that court that Congress intended to deprive you of the opportunity to raise a constitutional question. And so this is a six three ruling, of course, with Samuel Alito writing. And so Samuel Alito assumes for the,

the sake of argument that the constitutional question survives. And the constitutional question here was the termination of TPS status, especially in the case of the Haitians, infected with racial animus. So that would be an equal protection violation. And the Samuel Alito rejects that one, simply, he seems to accord no deference at all to the lower court ruling,

and which I'm thinking was Anna Reyes. I might be blanking. I hope that's right. Correct me if I'm wrong in the chat. But there was, of course, highly inflammatory language from Trump. himself and also from Secretary Kristi Noem that most of us would say sounds like it was racially, there was a racial valence to it. But Samuel Alito wrote, political discourse by prominent public figures is increasingly couched in terms

that would have scandalized the public just a short time ago. and the statements cited by the Mio respondents, that's the Haitians, exemplify this development. I don't really understand why Samuel Alito says that, why it would matter. You know, I mean, it might be that people are making racist statements now commonly that would not make them any less racist. It doesn't matter how, but I guess he's saying it's just,

heated, and we're mistaking the heated quality for the fact that, and we're jumping to the conclusion that these were racially, had a racial animus. He says that there is a plausible race-neutral explanation, the present administration's general stance on immigration, and its obvious antipathy toward past administration's TPS policies. This policy, so this ruling, will take effect in 32 days. That's July 27th. There are six more nations where TPS has been paused awaiting this decision. In other words, a government is trying to terminate it, and courts paused at awaiting this decision, Myanmar, Ethiopia, Somalia, South Sudan, Venezuela. The Venezuela tranche is itself about 300,000, 350,000.

There's six others where it's already been terminated. There's three left where the government has not yet had to say what it's going to do because it's not 60 days before they would expire. That's Lebanon, Sudan, and interestingly Ukraine. It'll be interesting to see what happens there. Thomas had a concurrence where he just, he agreed. with everything Samuel Alito wrote, but then he drops a few advisory opinions that people can, that right-wing litigants can put in their briefs in the future for various points. He disagrees with

I'll stop there for a moment, poisoning the blood. it's hard to see how that doesn't have a racial valence continuing why it is. So this, I mean, this all really speaks to a debate still between the justices about the extent to which outside comments can be taken into account and sort of gets to a broader theme that we're seeing in a lot of jurisprudence about the extent to which courts can actually inquire about the representations that the government is making in court. by looking beyond the briefs and beyond the statements made in court, right? I don't think he's really framing it that way this time. I think he's trying to say, you just haven't made your case, that we can explain away these things, at least for Trump. The interesting thing, I mean, you're right.

It's interesting, does this change the standard, in effect, in other cases? for proving equal protection. Yeah, it's certainly something to watch. I think it's, I raise that only to say that it is another way in which this case that seems like obviously it has quite a lot to do with how you read jurisdictions, stripping statutes and things like that, but provisions of statutes, I should say, that it sounds like there are some other thematic elements that have come up in other contexts as well. Yeah.

And apologies to interrupt you. I know there's a lot to talk about. Can I ask you to speak to us now about the question of what rights individuals have to declare asylum at the border? And correct me if I'm pronouncing this wrong, I think it's El Ocho Lado. Is that real? Yeah. I'll tell us what happened there. Yeah, this is another six three ruling by Samuel Alito. The dissent here is by Sotomayor. I think there was all. also a dissent by Jackson. This is unusual facts. This actually goes back to something that began sort of logic. It began under the Obama administration, 2016, it was formalized in 2018,

began as there was an overtaxed point of entry in the Southern California, and they began to say, we can't handle you today come back, you know, September 19th. And then that spread to other points of entry. And then that spread to not giving them a return date. And that spread to the stopping them before they step in the United States. And this is called a turn back policy. That's an emotional phrase,

turned back. The government calls it a metering policy because originally there was this theory that you were sort of, they were going to still get their interview, people that are seeking asylum, but you're just pausing, metering. The suit was filed in 2017. And the weird thing about, And summary judgment declared for the plaintiffs in 2021. The policy was then rescinded. And it hasn't been reinstituted. So, but it nevertheless went to the Ninth Circuit, which affirmed the declaration, the declaratory judgment.

And so there was sort of a significant. mootness question, whether, you know, a policy that hasn't been in effect for five years, and Judge Jackson dissented on those grounds. But everyone else reached the merits. And the Justice Sotomayor said that the question is, you must, be inspected when you arrive in the United States and then you have a right to ask for asylum. And so the question was, does in the United States mean literally stepping in the United States? And so what they were doing is they were stepping across the CBP was going halfway across the

bridge and stopping people before they stepped into the United States to avoid the requirement to to process their asylum claims. And the majority is saying, yes, they're sort of ostensibly, it's a textualist decision. They're fixed, and that's how they base their decision. Sotomayor goes into a very emotional dissent, talking about the whole, obviously the context of the context of the, the statute and the origins of this policy, turnback policy, she references the MS. St. Louis in 1939, which brought 900 Jews fleeing Nazi Germany to Cuba, and then Cuba wouldn't let them

off board, and then the U.S. wouldn't accept them. Canada wouldn't accept them. They were turned back, and a third of them were murdered by the Nazis. This is, and it is a, you know, after a refugee protocol was signed as a result of that, and that protocol was formalized in the 1980 Refugee Act. And so her point is you are undoing all of this now and you are allowing. And she talks about the facts of what did happen to the people that were being turned back and how you effectively force them to try to, you won't let them in legally, you force them to go illegally in between the point of entries.

And they die from drowning. they die from heat stroke in the desert and she said more people will die. Apparently, one last thing on this, apparently at the oral, at the announcement of the opinions, you know, Samuel Alito read from his descent. Sotomayor read an excerpt from, I mean, Samuel Alito read from his opinion. Sotomayor read from her dissent. Apparently she read more than he expected. He actually sort of gave a rebuttal oral statement.

He said something to the effect of, and there's no recording, there's no transcript, but there is much that I would have added in my bench statement had I known there would be a dissent read. I don't know why he wouldn't know there would be a dissent read. But this is from Mark Walsh and just security. Vladik gives a sort of different account. He wasn't there, from what he heard. But anyway, it was apparently quite an unusual and, you know, another barometer of the level of anger.

I will say that both of the dissents I'm talking about today did say respectfully, which is different from Calais. Calais, the dissent, there were six times she said, I dissent and none of them. Was it Elena Kagan? Elena Kagan, I think, and none of them used the word respectfully. So anyway, things are heated. Yeah, those are seemingly little things that are obviously a big deal to court watchers. So just to clarify, on the first case, the TPS case, my understanding is that without TPS,

status once these expire and any future expirations, people are immediately deportable. So this will affect, I assume, well over a million people already and many more to come, depending on the ones that will be expiring or could be additional further revoked. Is that right? More than a million had TPS at one point. I think it will certainly affect more than 600 to 700,000 people. going forward. Okay.

And for El Toro Lado, it just means that many, many people who were planning on seeking asylum will not be able to do so as they had been in the past. Yeah. Trump has stopped all the asylum, incoming asylum attempts through other means at the moment. Right. And for the three other people who care, there are serious questions, not at all litigated in case about the extent to which it violates our treaty obligations in international law. But as I said, only I and three other people care about that. All right, let us move on to elections. We have several

cases that had developments this week. Molly, I want to start with you in Massachusetts on one of the two Trump executive orders relating to elections. I believe it was the 2026 one. But tell us what happened and Wichio we're talking about. Yes, you were right. It's the 2026 one. They're easy to confuse because he's in the 2025 one and it wasn't going so well. And so he tried again in a different way. We talked on just Monday, it was on Lawfare Live, about Judge Talwani allowing these two challenges to the newer executive order to proceed, which was different from what Judge Carl Nichols had done here in D.C.

And then she pretty quickly ruled on one of those two challenges. So the two challenges, one of them was from 23 states in D.C. And another was from voting rights groups. And she ruled on the states one. The voting rights group ruling presumably will come imminently and will be similar. As was basically expected, she found in favor of the plaintiffs. She found that the order's key provisions were ultra-virous and unconstitutional. and she enjoyed the government from giving them effect in the suing states.

So specifically, yeah, go on. Oh, sorry, I was just going to say, can you remind us what those provisions were? Yes, I can. So one of them was a directive to the United States Postal Service to compile lists of citizens of each state eligible to vote, and then only to transmit mail-in ballots to people on those lists. And she found that was unconstitutional. She found that it encroached on the Article 1, Section 4.

delegation of that power to the states and Congress. There's no statutory authorization that Congress has given to the federal government, to the Postal Service to do this either. And then the second key part of the order was a directive to the Department of Homeland Security to create also lists, separate lists, although it's not hard to imagine how all these lists are going to end up interacting, but separate lists for states that identify who's eligible to vote there. And for that, same thing. She said it went beyond the executive's constitutional and statutory authority. She pointed out it's not just a database of citizenship. It's these individualized lists for states that also identify who meets their particular residence requirements. And there's just no authority for that.

And she said that the portion of the order devoted to enforcement couldn't stand either because it was functionally an attempt by the administration to create a new criminal offense. So, yeah, again, it's worth noting a few things. She still has to rule in the voting group's challenge, probably going to be the same, and the administration will almost certainly appeal. And again, there's this other challenge to the executive order here in D.C. that when has been going more favorably for the government, and that is on appeal too. So there's a lot that we still don't know about how it's all going to shake out. There's kind of an interesting difference between what Judge Talbani did, which was look at the executive order and what it says, and what Judge Nichols

said was appropriate to do, which was not look at the executive order, but wait for implementation and look at what the agencies actually did to implement it, which turns out to be a little different, what the text of the order says and what the agencies did. So we'll see what happens. It might be one that makes it to the Supreme Court eventually. Interesting. Okay. The next litigation that I will stick with you on, Molly, is from the 2025 executive order on elections, which was purporting to require proof of citizenship in voting. if I recall correctly. And there was a DHS database that came out of that that I think is different than the DHS database you were just talking about.

So tell us what happened in Judge Sucananan's court. Yeah, it's a good point that you make about the database being different. And this is kind of some of the weirdness in the implementation of the order that we were just talking about. Because initially DHS made a court filing saying we're going to use this. save database to do this? And then they said, no, no, no, never mind, we're not. Maybe partly because the same database not doing well. This decision hadn't come down yet, but I think it was anticipated. And here it is. And yeah, it's Judge Suttona N of the district court for DC, and she sided with a voting rights group and the pro-privacy nonprofit epic to find that the Trump

administration's overhaul of the SAVE system, which had previously existed, was unlawful. So for those who don't know, save is systematic alien verification for entitlements. And like its name makes it sound, it was designed by DHS to verify citizenship and immigration status for the purpose of federal benefits programs. But what this White House has been trying to do is transform it into what the plaintiffs in the case described as a searchable, National Citizenship Data System. And so the idea was it would put together records from the Social Security Administration and DHS to make it so that states could then query it to find who was eligible to vote.

And she said that the way that the administration did this, and again, particularly it has to do with making it searchable for states, failed to comply with the Social Security Act, the Privacy Act, and the Administrative Procedure Act. she was pretty harsh. She said that they had basically mushed together a bunch of private information, much of which they were aware was unreliable, haphazardly. And plaintiffs had said that states were using the database to purge people from their voter rolls mistakenly in many cases.

None of those mistakes, of course, has prevented anyone from voting yet. The midterms haven't happened yet. But she approaches in a slightly different way, and she said that having inaccurate information about citizenship status in these databases and having states then make these purges suggest that the people who end up getting removed, broke or tried to break the law, preventing non-citizens from voting, and that's defamatory. And that's an issue with the Privacy Act. You can't do harmful.

You can't make this information available in a way that harms the plaintiffs under the Privacy Act. So the order that this database was created pursuant to, the 2025, executive order has mostly been blocked, but the database had still been modified. The upshot of her ruling isn't that it has to be dismantled entirely. It's that states can't query it because that's how they're using it to monitor voting. She had originally decided not to halt the use of the system because she said it wasn't clear the data was being misused, but now it's clear that it is being used and misused. States like Texas and Louisiana are using it ahead of the midterms. Interesting. Okay.

Getting some factual development in these cases has been useful in and of itself. Okay, Eric, moving over to you and the great state of Michigan, go blue. Tell us about DOJ's attempts to get voter role information. Sure. So I will start by plugging the piece that I wrote for Lawfare on this back. in the end of March, which explains in greater depth the background here. But basically, DOJ is trying to get from every state, except North Dakota, which does not have voter registration, a list of their unredacted state voter rolls. And it's not entirely clear what DOJ plants do with this information.

I discussed some of it in my piece. And DOJ is currently in court in around 30 states, having sued around 30 states that have refused to turn over these records for a variety of reasons. And so far in district court, they are 0 for 9, DOJ. And back when I wrote my piece, they were a mere 0 for 3. A couple of days ago, we have our first appellate decision. in this case, in the Sixth Circuit, in a DOJ's effort to get Michigan's voter rolls. And they lost the district court, despite having a Trump appointee.

And they lost again in the Sixth Circuit in a panel with a Biden judge, a think, a Clinton judge, and a Trump judge. it was two to one. So they did actually get, for the first time, a judge to agree with them. And so even though they lost, I would be, if I were DOJ, I would consider this an improvement over their past record and suggesting that there is a path forward all the way up to the Supreme Court, given its composition there. So basically, they're trying to use, DOJ is trying to use Title III of the Civil Rights Act of 1960. to obtain these records. And that act says that election officials have to retain for 22 months from the date of any federal election, all records and papers which come into their possession relating to any application, registration, payment of poll tax, or other act requisite to voting.

And then, importantly, it authorizes DOJ to obtain such records if it provides a basis, if it provides a statement that includes the basis and purpose for the request. And the majority here denied the request for for two reasons. First, they determined, as the district court below had also determined that the voter rolls did not, quote, come into the possession of the Michigan Secretary of State because she did not receive them. She created that list based, of course, on information that she had received. but what the what the uh what doj is seeking is a document that that she created uh and it's kind of an interesting argument it's it's it's not one that that other courts had had come up with before this district court uh had agreed with it in below uh and the the the minor the the dissenter ding judge

said well look this is this is ridiculous Of course, what they're really doing is the DOJ is really just requesting the individualized records that happened to be contained in this list. And the majority then rebutted that by saying, no, that's actually literally not what DOJ requested. They did not request any individual records. They just requested this list. I thought the majority had the better of the argument here and explained it better than the district court had. The second basis for the majority's decision is one that the district court had not accepted, but saying that the DOJ failed to provide a statement including the basis and purpose for its request.

And here, I think the majority was not really on strong ground because they know that there was one letter that, basically provided a basis and another letter provided a purpose and that they didn't have a they weren't there was no one document that that provided both and I believe in Oregon district court judge had also accepted that argument but as the dissenting judge pointed out like it seems a little ridiculous because there's no it's pretty clear that Michigan was on notice as to the basis and purpose of the request and there was no uh there was no requirement that the both need to be contained in the same in the same letter from DOJ. The majority seemed not to, did not address one argument that had been accepted by some

district courts, which was that Title III is cannot be used. Some district courts said that Title III of the 960 Civil Rights Act cannot be used to police compliance with voter registration requirements, given that its basis is to enforce the right to vote and that it should be used, even though it need not be used only for Title III enforcement, it should be used for other things that are relevant to that. Whereas what DOJ is doing here is, what DOJ claims is doing here is that it's trying to figure out whether states are complying with their requirements to prune voter registration lists under other federal laws, including the Help America Vote Act. But that's a whole other thing. And again, if you want to learn more

about this, please read my article. Yes, Eric was way ahead of his time, which is a pretty good theme that you're, I think that's your beat, Eric, being ahead of your time on the litigations. So there's obviously no circuit split here, but what's your bet on this going up to the Supreme Court at some point? I think it will. Just because DOJ has made this vast nationwide campaign in 30 states, so I think the Supreme Court will probably want to hear it. I mean, it's conceivable that they might not if they keep losing. But if they pick up another dissenter here and there, I think the court will want to hear it.

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All right. Switching gears to the Justice Department and it's potential politicization. Though, as we have discussed before, This first case is, is it? Is it not? Is it complicated? Do we believe in nuance here at law fair?

Yes, we do. So, Molly, coming to you on this one, this is a follow-up from the indictment of John Bolton, who was charged several months ago at this point. I don't remember the exact timing. With a number of counts, I think 18 relating to retention of classified information, and mishandling and such, such, such. And we have some sort of resolution of that case today. What happened?

Yeah, you are once again correct. It was 18 counts, and each of those could have carried 10 years. So this plea deal that he's made is providing for a much lighter sentence than that. So this one will try to keep short because it was reported a week or two or three ago that this was going to happen. We talked about it then. So the upshot is basically the same. It did happen. John Bolton pleaded guilty to a single felony charge of willfully retaining classified information and made a plea deal for a fine of $2.25 million and a prison sentence of up to five years.

If the judge, who is U.S. District Judge Theodore Chouang of the District of Maryland, decides to sentence him to more than that, he can withdraw the plea and go to trial. And he can also argue for less, even no prison time. So at the hearing, the prosecutor said that as President Trump's national security advisor during his first term, John Bolton forwarded more than 1,000 pages of daily notes about what he was up to in his highly sensitive job via his personal email and messaging accounts to his family members. And it was all to lay the groundwork for this tell-all book that he was going to publish, which she did eventually publish, but it didn't have any of the classified information in it. So the U.S. Attorney for Maryland, Kelly Hayes, gave a press conference after this and said during that that he had really jeopardized national security, that it had related to sensitive matters involving foreign adversary. You also might remember that this whole situation led to what's believed to have been an Iranian hacker getting into John Bolton's email accessing some of the classified information and trying to blackmail him with it. So it was pretty clear.

what the damage was. He also even touted in his book proposal. This is another thing that the prosecutor presented at the hearing, that he was going to deliver this memoir that was going to tell the story of his time in the White House in a meticulously observed manner with direct quotes from all parties based on contemporaneous notes. And a lot of them were notes on stuff.

You really shouldn't be taking notes on. He would say things like in the situation room. So it's just very clear that, you know, he was sharing information that shouldn't be shared. And that, of course, gets to the question of nuance that you asked, which is he's certainly a political enemy of, well, a perceived political enemy, a perceived enemy of President Trump's. And so in that sense, it is the prosecution of a perceived enemy. But these do seem to be crimes. There's always going to be the question of whether the case would have been brought.

It was under investigation during the Biden administration, whether it still would have been. been brought if President Trump hadn't come into office and decided to make sure that it moved forward, accelerated, but we really don't know. All right. Thank you. Let us stay with you, Molly, and switching gears to the relationship between criminal prosecutions and the press and norms that here tofore existed that maybe not so much anymore. Tell us about some subpoenas we learned about in reporting today, today, the last couple of days.

The last couple of days. Yeah. Yeah, no, definitely may not exist so much anymore. So there was reporting this past week that the administration, the Justice Department, sought to force reporters for the Washington Post and the Wall Street Journal to testify before grand juries, issued subpoenas to them, and then withdrew them after the news organizations challenged them. So the Washington Post subpoena was to Ellen Nakashima, who's a veteran national security reporter there. And lately she's been reporting on the Iran war as well as the boat strikes. And it happened this spring. And all we know is that it was related to sensitive reporting about a national security matter. We don't know any more than that. And then the Wall Street Journal, three Wall Street Journal reporters who also reported on national security issues. So that's kind of the extent of what we know. The Post, was fighting the demand. We know more about what was happening with the Post than what was happening with the Journal because the Post has been more forthcoming. But they were fighting the demand in the Eastern District of Virginia in sealed proceedings. And then the government rescinded the

subpoena. The Post had asked the court to quash it. There had been a closed hearing, but the government didn't explain why it was rescinded. It just decided to do it. And it's, again, it's not clear what the investigations were about. It's not clear what their scope was. All we know is national security. The kind of logical assumption is that it was some leak investigation that they were going after the leaker and that they were using the journalist to get more information about that. And in the hearings that the journalists would have had to appear at in the testimony they would have had to give, they might have been asked to identify their sources if they'd refused, which is like journalistic standard. You're supposed to protect your sources if you'd

told them you would, then they could have been held in contempt of court. They could have even been charged with obstruction of justice. So historically, like you mentioned, norms, this hasn't happened all that much, although it's not that it hasn't happened at all. The search of Hannah Natinson's apartment was unprecedented. There was nothing quite like it, but there have been subpoenas issued to journalists for materials around their reporting. So there are a few examples. The New York Times reporter Judith Miller was one that got a lot of attention because she ended up being held in federal detention for contempt of court for more than 80 days until Scooter Libby, who was her source, told her that she could reveal his identity. And so then she did. And then there are some other

examples of reporters who have either, I mean, in pretty much all cases, they've fought the subpoenas. There have been cases where they've lost, but then haven't been called to testify. It's similar to the Hannah-Natinson. situation, a case where there is plenty of room for the government to do this legally, but they simply haven't done it. And, of course, Pete Hegseth has been really interested in cracking down harder on leakers. Pam Bondi issued a member in the Department of Justice that said, basically, we have new norms now about media league organizations. So that's part of this bigger picture. They withdrew the subpoenas, and we don't really know why. We don't know whether they're going to try again. So that's where we are.

Okay. Yeah, we will, it's one of those things what we will learn about through reporting and not so much through court documents. All right. Roger, coming to you on the SPLC, the Southern Poverty Law Center litigation. This is as a quick reminder for folks, this is the criminal prosecution of the Southern Poverty Law Center on allegations of fraud and a couple of other things relating to. their payment of informers for their work. So, Roger, there was some news today about a motion that they had pending. If there was news today, I may have missed. Oh, apologies. News today to me that I read about, that you read about before contemporaneously.

Apologies. There was a denial earlier, I think earlier this week or even last week of the they had been seeking, I think it was last week, they had been seeking to see the grand jury minutes or to have the judge or the magistrate at least to review them. But that's always a high standard. You need to show a particularized need and a compelling necessity. and the magistrate here, Kelly Fitzgerald Pate said that wasn't met. They were relying mainly on statements that there was a false statement, I mean, well, a false statement that acting Attorney General Todd Blanche made the night of the indictment on TV, under implying that none of the cases about informants, the use of informants,

inside right-wing domestic terror organization or racist organizations

and Todd Blanche had implied that none of that information was shared with law enforcement some of it was shared with law enforcement but she said that she wasn't going to impute Todd Blanche's statements to the local prosecutors who were before her. Also, they were really, the gist of the complaint was factual disputes about the accuracy of the indictment,

which you just have to leave until the trial itself. The SPLC had tried to rely on, you know, James Comey's, in the first, James Comey case, the grand jury minutes were ordered to be reviewed, and at least the magistrate did review them, but she distinguished that. There were 11 findings of procedural and substantive irregularities in the Cuomi case, and you didn't really have that here. Okay. Eric, over to you now, I believe, to talk to us. about the Prairie Land case. This was in Texas relating to protests

and apparently, allegedly, by members of Antifa. What happened in that case? It gives me a chance to plug yet another piece that I wrote back in November when the indictment first dropped or rather than when they first indicted some of these folks on charges of me. material support to terrorists.

This was, this case arises out of an attack last July 4th on an ICE attention center in Alvarado, Texas, in which a local cop was shot in the neck and some rounds were fired at various DHS officers who were Garry facility. This was clearly an ideological attack. It was a group of folks. They spray-painted DHS vehicles with phrases like ice pig and left behind flyers, saying things like fight ice terror with class war and free all political prisoners. The administration started screaming Antifa regarding this.

And they keep referring in the indictment and in their discussion of the case in the press release upon the sentences. as a North Texas Antifa's cell. And they note in the press release after the sentencing, this is the first sentencing of defendants affiliated with Antifa following President Trump's executive order, designating the group as a domestic terrorist organization in September 2025. And folks may recall that there is really no such thing as a domestic terrorist organization designation, It's something that Trump kind of made up for his own purposes.

And the sentencing, what's notable about the sentencing is that the charges were quite harsh. The person with the most involvement who's convicted, the apparent shooter, was convicted of attempted murder, among other things, was sentenced to 100 years in prison, a bunch of other. folks were sentenced to 50 to 70 years in prison. And I can't really say with precision the extent of their involvement. They were convicted of a lot of serious things, but not attempted murder, but they were convicted of things like rioting with intent to injure and possession of of explosive devices, or rather conspiracy to use and carry explosives.

One that I think is indicative of the very odd sentencing is that one person was convicted only of kind of obstruction of justice-related charges. Concealing documents and hiding them, like moving a box of the of like of magazines and their kind of instructionary magazines so that they couldn't be found by by prosecutors. And he was sentenced to 30 years in prison, which seems vastly disproportionate to the seriousness of his crimes. And the sentencing was conducted by, for some reason, I don't really understand it, it was

conducted by Judge Pittman, Mark Pittman. There were apparently, I think, two Judge Pittman's in Texas. the one who was appointed by Trump, and then by a few of the defendants' cases after conviction were transferred to Judge Reed O'Connor, who is one of the most right-wing judges in the federal bench. He's a George W. Bush appointee. And somebody remember him as the judge who struck down the Affordable Care Act initially. Sorry, I'm not sure really who was the first initial. It might have been in a subsequent case. But anyway, he also handed down some of those sentences.

So if I get a chance, I might try to dig into this case some more. But it is an odd one. And related, there will be more of these indictments. We saw the one in Minnesota where there are allegations of Antifa cells operating. So definitely something to watch around the country. Do you know, Eric, those convictions all came after jury trials or were they bench trials? Oh, jury trials, I assume. Okay.

And I assume so, too. And it seems to me like you said, the charges were quite severe, which I assume also meant they came with some not insubstantial mandatory minimums. But do you have a sense of, you know, how much of these really big sentences. was discretionary versus just because of mandatory minimums? That's a good question. I don't know. I do know that. And for some of these, the sentences were consecutive as opposed to concurrent.

And I think judges have the discretion to, if I'm wrong by the someone, please correct me, but I believe that a judge has the discretion to impose sentences concurrently, even where there is a mandatory minimum for multiple charges. All right. Yes, there's a lot there. So apologies to put you on the spot. There is. But I agree with you.

It's worth watching that around the country, especially with the supposed terrorism designation, which, as you say, is not actually a legal term in this context. Okay, I think we are sticking with you, Eric, still sticking with Texas as well, and this time talking about an immigration regulation that was briefly had its moment in court before it was whisked away.

Yes, and briefly is the word here. This is, there's a Texas sued on, on Monday, sued to challenge, to challenge a final rule issued in the Biden administration that permits, it makes it easier for immigration judges to dispose of removal cases without final adjudication by using something known as administrative closure. And I don't know the full details of how the rule operates because it's a little bit beside the point to what makes this litigation so interesting, which is that within hours, the parties had on the docket a proposed settlement in which DOJ would withdraw the rule and the state of Texas would

withdraw its challenge. And I think some state it was a total of four hours between when the case was filed by Texas and when the judge. signed off on the settlement. The judge, once again, was Reid O'Connor, who is, I believe, in a single judge courthouse in, I think, Wichita Falls in the Northern District of Texas and is a favorite judge to go to by conservatives, including the Department of Justice in this administration. So, and this was remarkably the second time in this second Trump term, where Reid O'Connor signed off on a collusive lawsuit between Texas and the Department of Justice. Last year, DOJ, it was the plaintiff and defendants were reversed.

It was DOJ that was suing Texas, challenging a state law under which undocumented immigrants were eligible for in-state tuition in Texas. and Texas agreed to sell the lawsuit by agreeing not to enforce that law at all. Now, this is all kind of strange because in both cases, you didn't need to litigate it. Like, DOJ could have changed, could have gotten rid of the Biden-era law through notice and comment rulemaking. And it will take it a little bit longer, but they could have done it. And in the situation in the other case, Texas could have, I assume they could have, the legislature might have eagerly gotten rid of that requirement, gotten rid of the availability of in-state tuition for undocumented immigrants. But for reasons unknown to me, the parties aside to, in both cases, engage in kind of a collusive lawsuit. And this is the same issue or another variant of the same issue that we've seen.

in the administration slush fund litigation, where Trump sued the IRS and the party settled by Trump sued the IRS for the leak of his tax returns, which was, in fact, illegal. And miraculously, the party settled in a way that created this $1.776 billion anti-weaponization fund. And the judge in that case in Florida has and still has a lot of questions about what happened there, the judge in Texas, not so much. And historically, Republicans have been very critical of civil rights administrations in Democratic administrations that have a bit too readily in their judgment agreed to settle. lawsuits brought by civil rights groups and environmental contexts and others. So it's very interesting, very interesting issue and it's not clear what can or should be done about it as a policy matter. Okay. Thank you. Let us change to our new category, which I explained to everyone last week,

why it has anything to do with national security. I assure you it does, which is the museums and buildings and what is happening with, shall we say, the aesthetics of America. That's sarcastic. But Molly, coming to you on the question of the national parks and the extent to which the administration can make changes to signs and exhibits. Yeah, very quick update on this, just so we know where we are. A unanimous First Circuit panel temporarily paused the order that we talk. about on Monday from District Court Judge Angel Kelly, which had instructed the National Park Service to reinstall exhibits it had removed pursuant to President Trump's executive order, basically about de-wokifying the parks and saying only good things about America.

So far, the First Circuit hasn't paused or halting of the implementation of the order by the Department of the Interior. It still might, but it hasn't done it so far. and but but it said that the government doesn't need to put back up the exhibits about slavery, native people, climate change and more by the 250th anniversary next month, which is the sort of symbolic deadline that Judge Kelly had imposed. So for now, you know, happy birthday to the best and shiniest version of America. And I imagine we will hear more from the First Circuit. Okay. So where things stand are no further removals can happen, but no reinstatement. need to happen.

Exactly. And the merits are still to be determined. Got it. Roger, over to you and the Robert F. Kennedy Jr. Center. Yeah.

There had just been a little thing where in a status report, the plaintiff in that case, Representative Joyce Beatty had asked Judge Cooper to order Trump to explain what the tarp scaffolding is that now still obscures the front facade of the Robert F. Kennedy Jr. Center. They had written that willfully sabotaging the Robert F. Kennedy Jr. Center's iconic facade to assuage defendants' vanity or massage broken egos is a clear breach of fiduciary duty. So this week, Judge Cooper did order Trump to explain what it's about, but not until July 31st, assuming it's still up. So that is a relatively disappointing for me, frankly, a result. But maybe we will eventually get an explanation.

Okay. If they don't moot that briefing by taking it down by the end of July. Okay. We are ready for the lightning round that is the immigration litigation that we are tracking. So, Roger, you had wanted to start by informing everyone about a cert petition that came in. Tell us about that. Yeah, we've been talking for a long time about the mandatory immigration detention issue that Kyle Cheney has written so much about and tracked.

It's finally a cert petition has reached the report this week. It was filed by the government. It's in the Sixth Circuit case. And it's called Raycraft versus Opus Campos. The Sixth Circuit was one of the three appellate courts that rejected Trump's policy. There are two court of appeals that have accepted it. So does this squarely put before the court if they take it the question of how to properly read that statute? Yeah, yeah.

Yeah, this is exactly. Okay. All right. Next item in the D.C. circuit and expedited removal procedures. Roger, I believe that's with you as well. Yes. Yes. This was, it's called Make the Road versus Mullen. And it ruled two to one. It overruled. It reversed Judge Giacob.

There are two main ways of proceeding against a non-citizens. who's here illegally, and there's the normal way, which can take months or years, and then there's something called expedited removal, which can take 24 hours. And, you know, for a long time, it was only used in situations where somebody was apprehended at the border or very near the border within 100 miles and couldn't show they'd be. been here more than 14 days. But the statute actually authorizes it to be used more broadly and up to two years. If you can't show you've been here more than two years. And so Trump moved it up to the max and made it countrywide. And so Judge Cobb tried to stop that.

but, you know, the statute does seem to permit it. She found, she thought there was a constitutional issue, due process. There were certain ways, flaws also with the particular memo that described this, whether you would be informing the non-citizen that, you know, if they could show that they'd been here more than two years, They could get out of this expedited procedure. But the court ruled two to one for Trump here. This was Justin Walker and Naomi Rao, who are both Trump appointees.

Robert Wilkins was the dissenter. And he's a Democratic appointee. I forget which judge. And Rao would also have dismissed on jurisdictional grounds in addition to the not buying the due process grounds. Okay.

Another one for you, Roger. This one, Judge Howell and the, a man who was returned to Honduras, and she said you need to bring him back. Yeah, facilitate his removal. That's the magic language we've settled upon since the Ebrego case. That's the Supreme Court.

language. And it was, it's just a sort of a horrifying individual case. He came into this country in 2020 when he was 14. He was an unaccompanied minor child. He was adjudicated to be, have special immigrant juvenile status, which is when you can't be returned due to abuse, neglect, or abandonment at home. And he was, and he got a work. permit and has no criminal record as a three-year-old daughter, citizen. And he was arrested in March of this year in Montana and then sort of entered a Kafka-S situation where he apparently went to six detention centers in 10 days and dropped off the map. And his lawyer could not get a statement from where he was or which even,

whether he was in the custody of CBP or of ICE. So he brought a suit in D.C. to find out who had him and where he was. And a hearing was said. And, you know, the day of the hearing, Barrow Howe was informed that he had been sent to Honduras that morning. There was then a dispute whether it really was that morning. And anyway, she described the situation as one that boggles the mind. and she has ordered the government to facilitate his return so that his case can proceed in a more normal fashion. And did the government give any explanation for why he had been removed?

There was a precious little response. there were, I mean, the main, to the factual questions, it was, I think the main defense was, you don't have jurisdiction, he's out of the country, it's not redressable. We got him out before you got the case. And so you need to dismiss. Okay. Well, that'll be an interesting to, it has echoes of JJ. G and Judge Bozberg from way back in the day.

Okay, next one in California and relating to some ICE and EOIR policies. Roger, that one is still with you. Yeah, this is about arrests at immigration courthouses. Remember, we had another case on this in Manhattan also before Kevin Castell. This one is in Northern District of California. P. Casey Pitts. And this one, this is this odd thing where the government seemed to change the policy relating to arrests at, well, it did change the policy relating to there had been a policy of not arresting people at either regular courthouses, federal courthouses or immigration courthouses. And that seemed to change in at least March of last year of 2025 with respect to both courts and people were being arrested.

And then cases were broad and briefs were filed. and then the DHS changed its mind and said, actually the new guidance doesn't really affect immigration courts, even though we've been saying that it does. So that didn't help their case in either one of these litigations because it created a policy, it removed an exempt, an example, policy in favor of no policy at all, which looks like arbitrary and capricious.

And that's basically what the ruling was, that this was arbitrary and capricious. But this ruling is broader. It's under, it's a summary judgment. It's not a emergency ruling, and it's interim ruling. and it affects nationwide. It's not an injunction. It's an APA stay, but it has nationwide effect. So it's a pretty important role.

And I assume we expect that one to be appealed in short order. Yes. And we do. We do. I don't have whether it's happened already. I'm sure it is imminent if not. Okay. Okay, and I should have mentioned, if folks have questions, feel free to drop them in the Q&A.

Molly, I want to come to you now and to talk to us about some immigration courts and public access. Yeah. So Judge Linda McMahon of the Southern District of New York partially granted a preliminary injunction that, in a case about public access to the two. lower Manhattan immigration courts. So a truly various group of plaintiffs, a pastor, an attorney, a journalist, a psychologist, and a court observer. It's really like a walked into a bar joke set up sued against these new restrictions that they said started last summer at these courts.

So they were finding doors locked during what should have been open proceedings. They were being told they couldn't watch. No, no observers when they tried to walk in. They were also barred from waiting areas and from talking to people with immigration cases who were in those waiting areas. They said that was a First Amendment violation. The government said, no, we did this because of overcrowding. It was all in the interest of security.

And Judge Linda McMahon did not buy that. So she found first on standing that the plaintiffs could sue some of the departments they were suing, the Justice Department, Department of Homeland Security. General Services Administration, but not ICE, although she's giving them an opportunity to cure that. And then on the merits, she found that there is a qualified First Amendment right of public access to sort of standard non-closed immigration court hearings. And removal hearings are trial-type adjudications, so they're presumptively open, she said. There'd have to be something special going on, some real reason for one not to be.

She also found that rules about who can be in the waiting areas or what conduct they can engage in have to be reasonable and viewpoint neutral. And it looked like the plaintiffs could show that these ones weren't. There really wasn't ever any justification that made any sense for why they were closed off or why they were told they weren't allowed to talk to people. You can't, she said, just prohibit communication there if it's quiet and consensual. The complaint had also referred to exterior spaces that they said there were restrained. in, and she said that the claims of what those exterior spaces were exactly were too vague, but the plaintiffs also have some time to file a new complaint during that. And then there was a retaliation claim.

She said that was colorable, too. These people were being retaliated against for going in and observing the hearings and trying to do interviews with the people in the waiting areas and all these things that the agencies didn't want them doing. The government had tried to say, well, we issued reminders, actually. we sent emails saying these spaces were open, but the plaintiffs argued those didn't moot the case. They came after the lawsuit. They weren't binding. And the judge found the restrictions actually continued, at least in some respects, after those reminders. So they didn't really mean much.

The two sides are now supposed to propose the language for the preliminary injunction. And the defendant's reply of the language it wants is due by July 9th. So that will be where we kind of find out what's happening next here. that's very it's interesting to me hearing the level of detail that they are supposed to come up with rules-wise because having spent some time in new york immigration court waiting rooms they're extreme chaos and i'm having a hard time imagining anyone implementing them but maybe things have changed um okay uh last item on the list um and folks should drop questions if you have them um is for Eric and has to do with Sanctuary Cities policies in New Jersey. Tell us about that.

Sure. So the DOJ sued four cities in New Jersey for having various types of quote unquote sanctuary city policies that limit the local law enforcement's cooperation with ICE and their ability to do things that help enforce immigration, federal immigration law. And the district court tossed it on standing grounds. The district court noted that there is, there are New Jersey, there is a New Jersey law that, or rather I think a policy issued by the Attorney General of New Jersey that is fairly coterminous with the co-extensive with the challenged local policies. And so the policies that DOJ objected to, the injury that DOJ claims to have suffered, would not be redressable by a favorable decision. in court because the state policies would still remain.

And in fact, I think under the first Trump administration, UJ had sued New Jersey to challenge those those turn general policies and had lost twice and including before the Third Circuit and did not take it any further. And it's kind of an odd. suit. I mean, DOJ kind of half-heartedly says, well, you know, there is, it is kind of addressable because if you rule in favor us, they'll make it more likely that the state policy would somehow be overturned eventually. And the district court was like, that doesn't make any sense at all. And then there, to the extent that there were policies that were not co-extensive with the

state policies. The district court held that New Jersey had not proved they'd actually been harmed by those policies or they would possibly be harmed by them. So this case is actually very similar to a case that from out of Boston a month ago, and that was decided May 28th. And I could have sworn we had discussed that last week, although I cannot find it, last month at some point or earlier this month, but I cannot find it in the kind of agendas from those past shows. So maybe we did not.

Luckily, I did not hallucinate that case. I actually just found it earlier while prepping for this. And it was another case in Boston where they sued the city of Boston for sanctuary city-type policies. And again, it was bounced on standing grounds because the court noted that the release, that the city was seeking, the ultimate relief was basically barred by state law. And even if you invalidated these Boston policies, it wouldn't have helped, because you still have had the state law in the way. And the DOJ had not sued Massachusetts. So it's not entirely clear to me why DOJ is doing these things. I mean, I haven't kicked the tires entirely on either of those opinions.

They seem, you know, well written, and they're probably correct just on the facts. And it's either sloppiness on the part of DOJ or maybe they're just trying to get as many of these suits going as possible to satisfy top brass and don't necessarily care as much about the outcomes. And the sanctuary city, I mean, someone would take a look at the sanctuary city record in both Trump administrations. It's very poor. And I don't think anything has gone to the Supreme Court, but they've lost again and again and again at the district court level. The judge here was, I don't know how to pronounce her name. It is P-A-D-I-N. She's Latina.

I would guess it's Padin, but I could be totally wrong. and she is a Biden appointee. Okay. Looks like we have two questions. First from David, can a sentence be appealed, particularly as selective or vindictive, although I recognize not likely to win on appeal in that circuit. Roger, any thoughts on that?

Well, you can, a sentence needs, there are federal guidelines. So I think you would challenge the sentence in terms of, did you calculate? First, did you calculate the guidelines correctly? And second, if you went outside the guidelines, did you articulate a convincing reason for doing so? I don't remember the standard. I assume it's abuse of discretion. but so and in that context I'm sure you would say this became a political football and that sort of thing.

I don't think you would specifically characterize it as vindictive or selective, but I think you could certainly argue the political emotions around this. Yeah, so it's an important distinction. Roger just made selective and vindictive doctrine that we've talked about in a lot of other contexts is about prosecutions. So that's not something that you would bring to challenge a sentence specifically. That's the selective and vindictive prosecution claims are about the decision to prosecute in the first place. There are, if I remember correctly, cases looking at vindictive sentences. I agree with you that the guidelines would be very important here. I don't know, I don't recall ever hearing anything about selective sentencing, and I think that would be very difficult given the guidelines. Eric, Molly, either of you have additional thoughts on that? Yeah, I would just add.

I mean, the selective and vindictive prosecution doctrines are aimed at the executive branch, whether they have behaved in a selective or vindictive. fashion. I think by definition, it would not be selective in your sentencing because obviously you have been convicted and you have to be sentenced. It is not a discretionary choice. And in terms of vindictiveness, I think that just kind of goes into what Rogers said, whether you have calculated the guidelines correctly and whether you had the judge, you, the judge have articulated reason for departing from the guidelines. if in fact you did.

And I think your state of mind doesn't really matter as much. Right. I was just going to say if this is about something like the John Bolton case or one of the prosecution of perceived political enemies, if there were room to challenge a sentence as vindictive, presumably you'd be saying the judge had been vindictive. So it wouldn't be saying the Trump administration had been vindictive. There'd have to be some reason the judge had beef.

I mean, maybe the judge, you know, you'd be arguing the judge loves President Trump or something. But again, it would have to be about the judge's vindictiveness. Right. Okay. Our next question from Kathy, any comments on Judge Dan Sullivan's, I think, ruling supporting Katie Fang suit requiring Todd Blanche to respond by July 2nd by releasing unredacted Jeffrey Epstein files to the public or supplying valid reasons why he could not. Yeah. On that, I think we, I think we want to hold up. off just to make it since it's nothing has happened. Technically, nothing has really happened yet.

I want to hold off until Judge Dan Sullivan, until DOJ responds, if it responds to Judge Dan Sullivan ruling. He, I mean, they apparently had missed a deadline, but he did not, in fact, order the release. He said he basically ordered the release unless DOJ of the documents, unless DOJ can show calls why they should not be released. So that basically gives them another chance to file something. And I think, I assume they will take him up on that, though it's tough to say, given that they apparently did not do so earlier. So in other words, tune in next time, I think. Yet another reason to tune in next time. Yep.

All right. Then I think we will leave it there for this week for your doubleheader twice in one week, Lawfare Lives. Thank you to all of you for joining us, and we'll see you next week.

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