Lawfare Daily: The Trials of the Trump Administration, June 5

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It is Friday, June the 5th, 2026th. 4 o'clock p.m. in Washington and you, and I mean you are watching Lawfare Live. I'm Benjamin Netanyahu Wittes, editor-in-chief of Lawfare, and I am here with not one, not two, not three, but four Lawfare senior editors in alphabetical order, Anna Bauer, that's a B, Eric Columbus, a C, Roger Parloff, a P, which comes shortly, before Molly John Roberts comes last with an R. And look, the trials have been trialing and the tribulations have been tribulating, and we are going to have a Molly John Roberts. She's last in the list, but she's first in order because she's got to go relatively soon. So we are going to start

with a set of things that are unified by the fact that Molly John Roberts is covering them. And of course, first on that list is the Trump ballroom about which the D.C. Circuit held oral arguments. Molly, is the ballroom going to withstand D.C. Circuit scrutiny? Who was the panel? What happened? Yeah. So I will tell you who the panel is. And then I will tell you whether I think it's going to withstand D.C. Circuit scrutiny. or at least whether I think that the D.C. Circuit is going to stay the injunction from Judge Leon on the district court. So the panel was Millett, Garcia, and Rao. And I would say it breaks down about the way you'd expect that panel to break down. So Judge Rao was the only judge who gave the lawyer for the plaintiff, the National Trust for Historic Preservation.

a really hard time. And she was primarily focused on the question of standing and particularly of germainness. So there was a lot of back and forth over the course of this hearing about whether the woman, the plaintiff, is relying on for its claim. Her name is Alison Hoagland. She's an architectural history expert. Trump calls her the woman walking her dog when he talks about whether she has standing, all caps, exclamation point. The argument focused a lot. on the question of whether she had too much of just a generalized grievance or whether she had a sufficiently particular injury. Do we know what the difference between standing and standing is? Are they the same thing? Are they different? I think it just depends on how mad you are about it.

Okay, because I've been worried about the fact that I don't actually know what standing as opposed to standing is. No, that's a good point. There could be a whole other set of issues. There could be no case law to rely on at all. I'm not familiar with any opinions about standing. Right. And I just think, you know, we have Lujan v. Defenders of Wildlife in, to define standing, and we have a four-part test. We know what it is. But, you know, standing, maybe all you need is to be walking your dog for standing. So it actually goes against Trump that it's standing

that he's invoked possibly. I don't know. I'm concerned about it because I feel like there's an unexplored doctrinal thing going on here. All right. Well, I could be the first

to explore it. I'll get back to you. All right. But a lot of it focused on that and Judge Rao was focused on the idea of whether what the National Trust

is created to do has anything to do with preserving this particular park. So that was for Germain. this argument. And that seemed to me like the basis on which she's going to say that we don't even get to the merits here. On the standing point, judges Garcia and Millett seemed way more aligned with the National Trust, particularly there was this quite long back and forth between Yaakov Roth, the lawyer for the Justice Department and Judge Millett, that ended with her.

It's Millett, okay, thank you. No, I appreciate it. I guess they announced it at the beginning, but after that it wasn't said, Millett. I will say this didn't have Judge Pillard, but I've heard a lot of people say Pallard, and I'm pretty sure that one is. Yeah, it's pillared. Yeah, okay. So that one I would be right on with other people being wrong, but this one I'm wrong on with other people being right. Okay, so Judge Millett had a long back and forth with Yaakov Roth about the standing question and essentially asking when it comes to the sort of visual injury that's being described here, is there any way to get to a cognizable injury after a demolition of some building or some structure has occurred? When we're talking about

putting up something new. And his answer to that was basically no, not after it's occurred. And that led to her in the end and saying, okay, so move fast and break things and no one has standing, bulldoze the Statue of Liberty. And as long as the government does it fast enough, too bad, nothing to be done. And he basically had to say yes to all of that. So that's where the standing argument ended. And that was pretty alarming, although it ended up not being the most alarming part of the argument. I mean, there is actually, to be fair to Yaakov Roth, there is some truth to that, right? Because some portion of standing is based on the idea that your injury is remediable by some action of the court. And there's some, look, I mean, if it involves killing you after you're

killed, you don't have standing. And that's a sort of ridiculous example. But there are damages that can be irremediable and they do change the standing analysis, right? Yeah, that's fair. They weren't talking about it as being a problem of it not being remediable. They were, he was basically arguing it would be different if you were saying they're, going to get rid of something that you had, but that thing is already gone. So now we're talking about putting up something new and that if you put up something new when the main thing, in this case, the White House still exists, then that's not enough of an injury. So if what she doesn't like is that they're going to put up this big ugly building so that she'll enjoy what still exists

less, that's not enough. So that was basically the way that he was framing it. And then they got to the if you bulldoze the statue. So that's what they were initially. Then they got to the bulldozer statue liberty and he seemed to think that even then you don't have standing so they weren't talking about remediality but it's it would be an interesting way of framing it he was basically seeming to say that as long as we're not talking about getting rid of something there's no issue so that is where they ended on standing they got to the merits that part is a little convoluted but basically has to do with their two statutes where the government would be saying that it has found the authority to do this using the money that it has to do it, which is through the National Park

Service gift fund. And again, it was a complicated argument involving the Organic Act for the National Park Service, which had to do with whether the statute about what the National Park Service is for enabled them to do the project they're doing here. And then it was this other authority which is authority for Congress to appropriate money for the president to do maintenance and improvements on the White House. So those are the two statutes they were talking about, but he was making a sort of confusing argument where even if Congress appropriated funds that weren't for improvements,

he was saying that the statute generally had given them authority that they could then use other funds for, the funds in this case being the funds through the National Park Service, even if they were citing the authority from the appropriation statute. So it was kind of confusing. The judges seemed confused by, to took a long time to get through. He was supposed to have 15 minutes. And by the time he was done with the final bit, which was the equities, he was over 90 minutes. And then the equities part

is where I think the hearing got most dramatic. And that was where he basically argued that they're weighing the aesthetic injury here to the plaintiff, which is nothing, small potatoes, wave it aside against the safety and security of the president. And that's, of course, what we've been following throughout this case. And that's what was in these filings from Trump after the White House correspondence dinner. And he essentially said, you can't question us on that. And Judge Milleg, even if we put the words drone port in capital letters with a lot of punctuation. Especially if they put the words drone port in capital letters from a lot of punctuation, then you absolutely can't question them on. I see. Okay. I will say Judge Rauson pretty into the

drone port. She was bringing up the drone port later when the, when the government, sorry, when the lawyer for the National Trust was presenting, she was bringing up how, you know, are you really questioning the drone port? You can't possibly be questioning the drone port. I was like, I'm questioning the drone port, but for all sorts of reasons. So where it got to at the end was Judge Millett saying, you're telling us that we can't question this. Could we have questioned this earlier? At what point did it become a fait of complete? And Yaakov Roth said day one. You couldn't have questioned it on day one.

And she said, so not this court, not the Supreme Court, no court can question it. And he said, that's right. Our position is that no court can question it. It's only Congress that has the ability to question it. And so that's kind of where he left off. He left off saying that the court has no ability to do anything here. And that did not sit well with Judge Millett. I don't think it sat very well with Judge Garcia.

jury's out on Judge Rao on that point. I think she'd just like to stop the germainness stuff. So that's basically where we are. There was, you know, of course, the National Trust presentation, but it was sort of less rich and interesting and also a heck of a lot shorter. And again, where I imagine it will come out is I think Judge Rao will side with the government on the standing germanness question. and I think that

probably on the likelihood of success on the merits and certainly on the question of the balance of equities which then when the National Trust presented, they framed as one of the equities here is that Congress is supposed to be in charge that the president is resurping Congress's authority and it is the court's job to step in and not let that happen.

I feel that they would be sympathetic to that argument. So I think two, one, not to, to one, not to stay the injunction from Richard Leon. And remind us, Roger, what the punctuation density of the underlying Richard Leon opinion looks like in this case? Oh, I might not be prepared on that. I can't remember offhand. Because one of the questions I'm really struggling with is, does high punctuation mark density on the part of Judge Leon Correly with higher or lower

probability of affirmance? And, you know, should, like, does he signal to the D.C. Circuit really, really, really don't reverse me on this. I feel really strongly about it with a lot of punctuation. Or is it more just like they perceive it as? district judge hand-waving, and they're like, no, no, no, we can't take that seriously. And so I think it's really, we're going to have to do an analysis of the longevity of opinions against the punctuation density. I think we'll have to ask Claude about that one.

All right. Let's turn to the subject of DOJ politicization, and we're going to, again, we're going to front-load Molly John Roberts related matters in that regard. John Bolton is reportedly ready to reach a plea deal. Molly, what do we know? Yeah, this one will be a lot shorter than the previous one. So essentially there's a notice in the Maryland federal court where he was indicted that shows that there's a rearrangement on the schedule and that could signal a guilty plea

The question, of course, is, was it sufficiently serious that, if Trump hadn't been in charge, this investigation that was going on under the Biden administration and then kind of stalled out would have been revived. But when it comes to succeeding on a vindictive prosecution claim, you really do need to prove that but for. And given there was plausibly a case there, that's a lot harder than in something like where you are sifting through Letitia James' mortgage documents and finding a box that she checked wrong, maybe by accident. Yeah. So I'm curious, Roger, what you're. make of this case? Because on the one hand, I look at it and say, it looks kind of similar to the

David Petraeus matter, retention of classified information, transmission of them to a trusted local party, in this case, family, in that case, somebody you were having a biographer you were having an affair with, you do it for reasons of personal vanity. It's not going to the press. It's not going to, you know, foreign governments. But it is pretty clear mishandling and it's pretty clearly willful. So you can look at it and you can say, well, it's pretty bad. You know, it's not the worst thing that's ever happened in the national security world, but it's not good. And it's arguably warrants prosecution. On the other hand, I look at it and say the last administration investigated this seems to have been content to let it pass, not out of any love for John Bolton,

of course, who wasn't, was not exactly politically sympathetic to the prior administration. But for whatever reason, you don't let sleeping dogs lie for reasons that are purely vindictive and because the president hates him. You revive a case gleefully, and then you make a real show of, a raid on his house, and you do it all in a way to be maximally humiliating. And let's be honest, you're doing that because it's a way of distracting from the fact that the president's own engagement with classified information at Mara Lago was much worse. And so, you know, I can kind of argue it either way. It's definitely a real crime, but it's also not untainted by political

vindictiveness and presidential hatred, which should not be a factor in the criminal justice system. How do you understand it? Well, I might have the timeline wrong, but the way I thought that this got its second when during the Biden administration, there was this Iranian hat of his, you know, originally there had been the book itself and an inquiry and relating to the book. And then there was the Iranian hack. And I thought that under Biden, it sort of started picking up again. And of course, the thing with that was he notified the

FBI, but he did not notify the FBI that Iran now had access to national security information because that's what was in his Gmail. And so I thought it was pretty bad facts. I thought, you know, he really, as soon as he got the job, he hit the ground running, sending what he fully understood was classified information to his relatives for the purpose of writing this detailed book. It was very premeditated. It was very and it was very hypocritical. And so I don't have a lot of, you know, I get what you're saying, but it was appropriate to pursue it in the exact resolution this seems maybe I guess he gets a felony and I can't remember did did Petraeus have to plead to a felony or did he get a misdreous. I think Petraeus pled to a misdemeanor.

But it still seems to me it seems a little worse what happened here. Interesting. All right. There are a lot of people who felt that Petraeus got off too easy. I remember that Eric Holder, I think, was one of them. I believe Holder was the one who cut that deal. It was James Comey who objected to it.

And I think it was the other way. But yeah, I mean, and look, there was a John Deutsch and Sandy Berger. There were, you know, there does seem to be this exception for very senior officials who grossly mishandle classified information willfully that they plead out to very little and get very little or no jail time and low grade people spend, you know, can get very long times in prison, General Cartwright as well. I mean, it's a long list of people who've been who are sort of above a certain level and who do a certain amount of egregiousness

with respect to mishandling classified information and are not, they do not have the book thrown at them. And I think there's a very legitimate case against that. I do think this disposition is, in keeping with the dispositions of similarly ranked people. All right, Molly, you are free to turn into a puff of smoke. And let's talk about some other matters that have arisen in the DOJ weaponization department.

Anna and Eric, you guys have a new piece out, updating us on the weaponization fund and the IRS settlement. I got to confess, guys, I haven't read it yet because I've been working with other things. So I don't know which of you wants to get us started. What are you reporting? And what should I make of, I can't tell, is this fund dead at this point? Or is it, you know, on life support? Or is it now that the Senate has voted? Is it, you know, like zombie-like, going to come back and sit up and come after us and bite us all?

Well, I think we just run through all those possibilities in our piece. And one conclusion that we drew is that doesn't really matter what the answer to those questions are. Or it doesn't matter as much as one might think. because even in the what this what this that collusive lawsuit that was established set up this one point seven seven six million dollar sorry billion dollar fund to pay out towards folks who have been quote weaponized by the democratic administrations but that would just and made a formal way to do what the administration has been kind of doing so far bit by bit, which is settling cases one by one that

have come to it, that largely been filed under the Federal Tort Claims Act by folks who claim that they have been wronged by the federal government. And these are the types of people who have often been, who you would think about and who the government, the Trump administration, talks about in the category of people who are the victims of, quote, weaponization. People like Ashley Babbitt, Michael Flynn, Carter Page, Alex Berenson, who's a kind of renegade on COVID issues. The government has paid out over $8.6 million under the Federal Tort Claims Act within just the past year. And that's obviously a drop in the bucket compared to $1.776 billion, but there are tons more cases. cases in the pipeline. There are like 400 federal torts claims act cases that have been filed

so far, according to the Washington Post, and there could be more on the way. There are probably pretty serious problems, procedural problems with a lot of those suits. But, you know, among friends, who's to worry about statute of limitations issues or things like that? It certainly was something that the Department of Justice was not concerned about in naturally setting. settling Trump's own case against the Treasury and IRS, which had its own very severe statute limitations problems. So, you know, it's quite likely that this is the Trump administration is going to find a way to pay off people that it wants to, even without such a fund. And then furthermore, Todd Blanche has said the fund is dead.

that doesn't mean it is dead. And in the normal course of events, if you sign an agreement, a settlement that requires you to do something as the settlement agreement with plaintiff Trump and his plaintiff sons did, then you have to actually do it. I mean, Todd, the DOJ signed something that required them to create this fund. And in theory, Trump could sue them and say, hey, you know, you guys better do this. more realistically he could you know you know text uh he could DM Todd Blanche and say hey Todd you know I've changed my mind you better do this and he's been Trump's been making various noises over the past couple days that suggests he he might want to do that so there's absolutely zero reason to think that all the bad things that people were worried about are not going to happen as a result

of the events of this week and Anna obviously you can pick up and add whatever you like. Yeah, I guess one thing that I will mention that we note in the piece is, you know, I do a lot of monitoring of, of, of MAGA or right wing figures, including people who are kind of known to be personal friends of Trumps or kind of being MAGA insiders. And one of the things that we note in the piece is that, Peter Tickton, who was a childhood friend of Trump's, has expressed a lot of optimism.

He's a lawyer who represents a bunch of the Jan Sixers and has filed claims, he says, on behalf of a lot of Jan Sixers. And he's expressed a lot of optimism that even though the fund is supposedly dead, that these kind of individual settlements will proceed. So insofar, Whereas there's this idea that the fund is dead, as we discuss in the piece, it certainly seems like the administration's going to find a way to achieve the goals that the fund was supposed to achieve anyway. I will say, though, that for some people who don't have pending suits, but whose may have been expecting payouts, particularly J-Sixers, it's going to be a lot. it's a lot harder to pay out a settlement of a suit that doesn't exist or to justify a settlement against somebody who, say, beat a cop, then do a secret settlement on the basis of an application to a fund where you may not be disclosing who's getting what, right?

one of the values of the fund, I think, was that it allowed you to do in some degree of secret the sort of collusive settlements that are now have to be somewhat public. Here's my response to that. I think that ultimately those confident, I'm not entirely sure that those confidentiality provisions would have ultimately been, would have not like in that settlement agreement, it seems to me that ultimately there would be FOIA litigation that probably litigants would succeed in finding out who received compensation from the anti-weaponization fund in the same way that in these individual settlements, you can FOIA the agreements.

But you know, as well as I do, because we have litigation for settlements. agreements in our suit that it takes a long time either way. So I don't know that it's even that big of a transparency difference in any event because, you know, like with our litigation, we filed in January and we've received one settlement agreement, the Flynn agreement. So, and it's so it's been several months. I think in either case, it'll be long after the fact that we even find out unless there's, you know, people with human sources who are getting information about who received what. But that's just my two cents. I don't know if anyone has differing opinions on that. All right. Let's turn to the Southern Poverty Law Center,

Roger. There's a superseding indictment. How is the new indictment different from the old indictment? It's a good question. It's the same 11 charges. And it seems that the original indictment was done really tactically. And, you know, it had several legal errors. So they fixed the obvious legal errors. For instance, the bank fraud counts.

they left out an element of the crime, the phrase with the intent to influence an action of that institution. So they've now put that back in. Similarly, they said that the statements were false and misleading in a court case has said, no, it has to be false. So now it says they're false. It is 21 pages instead of 14, so they've added a lot. of they've said a little bit more about the informants and they might have added one it's a little hard to count there they describe nine informants and you know it's very I'm hesitant to

describe what the allegations are because you know but I will but you just until you hear from the other side, you don't, you just, with these people, you have very little idea of what really happened. And with any informant, you know, if the FBI is paying an informant that's, you know, inside the proud boys or inside Antifa or whoever it is, they have to be pretending to be who they are, you know, like the rest of the group. And money is. And money is, is fungible. So it gets tricky and you don't want to give away the game. And so the allegations are that they use the money to do the things that their groups were doing, like create racist paraphernalia or buy robes, like if you're in the Ku Klux Klan or published racist material.

L.C. funds, reimbursed expenses for cross-burnings, you know, wood and fuel. Well, if you pay somebody as an informant, that can happen. What's also interesting, though, is to, oh, yeah, I guess one of the key things that they're very, they stress the most is, one quote, was a member of the online leadership chat group that helped plan the unite the right rally in Charlottesville. So that it's not exactly that he helped plan it. He's a member of that chat group. And then employee three directed him to attend this event. And he helped arrange transportation for others to attend.

I guess the thing to that I think about is like how many of these, You know, if a lot of these guys are going to testify, there'll be weird witnesses, you know, their credibility will be strange. But if there's a lot of them, it could be a problem for the SPL. One allegation is also strange. it says an employee of SPLC became romantically involved with one of the informants. And so the money was paying for their personal expenses, the couple. It's a strange situation.

I can't exactly parse how that relates to the charges perfectly. if that's, you know, but anyway, it's just, at this stage, it's still sort of a mystery, mystery what's really going on. But is there any, I mean, the fundamental defect in the previous indictment is that, you know, the SPLC paid some far right plans type people for a fairly, large sum of money over time for information, and they purported to be using that information to undermine clan activity, and the government is accusing them of fraud for misleading donors into thinking that they were disrupting the clan when they were funding the clan.

And of course, the defect was it's actually possible to pay informants. This is a strategy toward disruption. Good one, bad one is a strategic decision, but maybe worth criticizing, but is not inconsistent with what they were representing to donors. Is there anything in the indictment as you read it now that addresses that and says, well, the, you know, they were representing X to their donors and doing not X in their actual behavior, or is it all explainable, as in my judgment anyway, was the previous indictment was, yeah, you have a strategic disagreement with them about whether this is a good

way to disrupt the clan, but it's not fraud. How do you, how does this indictment measure up against that concern? Well, it's the same in that it doesn't even mention that any of these people provided information that went to law enforcement. And, and so it presents, but, you know, that is the defense. It's, And it's a factual defense. And so you don't really have to put it in the indictment. I mean, a decent person would take that into account before ever seeking an indictment. And that's what we just don't know.

What makes me concerned is that if you really have, say, four or five of these witnesses, is these former informants who are cooperating for one reason or another with the government, then it sounds like they're going to downplay any effort to dismantle the group. And so their credibility will be crucial. And the other, the defense evidence that in fact information was given to law enforcement, to destroy it, to dismantle these groups. Or used in other ways. Other ways to dismantle, yeah.

Yeah, that could be. But it's all, I don't see how you get it dismissed beforehand, since it all seems factual. And, you know, you always have to take the facts, allegations, you assume the allegations to be true and for the purposes of a motion to dismiss. So I still don't see how you dismiss it that way. Meanwhile, the SBLC has filed a motion for sanctions because of the pre-release of a draft version of this second indictment. which went to the press before it was filed.

And I guess the question is, is this a 6E violation? I would think it is. Yeah. And to put it in its context, on June 1st, you know, remember going back when the original indictment came down,

you know, that evening, Todd Blanche went on the Laura Ingram show and made false. statements that said that, you know, it conveyed that as far as they knew, none of this, none of the informants had provided information to law enforcement. And certainly, I mean, Todd Blanche may not have known, but the prosecutors knew. And so the defense lawyers, Abby Loll's group and others, um, uh, were, um, were. up in arms and demanded that the judge asked the judge to address this and force the order

that Todd Blanche retract the statement. And so a magistrate ruled on June 1st. I'm not going to get involved. You know, he corrected his statement. It might have been on a show that had less ratings than the first show, but I'm not going to get into that. But I'm ordering everybody to do your jobs. And then he ends by quoting that famous passage from, you know, Berger v. United States 1935. The U.S. attorney's interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.

He may prosecute with earnestness and vigor. Indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. The next day, before the indictment is unsealed, a draft version of the indictment, unsigned, unstamped, non-final, it differs from the final, is distributed to the media before the defense lawyers get anything. And so they begin to get calls from all the media. And of course, they're on the back feet. They haven't even seen it. And in fact, so they email the top prosecutor handling the case,

the lead prosecutor. And it seems that he doesn't know about this either. The thing is being mailed from the public affairs office, the director of the public affairs office of DOJ. And, you know, it's what we've seen all over the place where the public affairs people, both in DHS and in DOJ, you know, they're the most powerful people of all.

They seem to decide things. without discussing with the line people, what's going on. And yes, you know, it does appear to be, this describes the inner workings of the grand jury. It was under seal. It appears to violate. There are decisions where people have sought draft indictments in discovery and have been told, no, this is protected under 6E. The Justice Department manual forbids this sort of shenanigans. So it's all very unprofessional, whether it goes beyond that, whether anyone,

they've asked for an order to show cause to figure out more about what happened. You know, I'm not very sanguine about that, you know, much happening. Whether it's a 6E violation would actually depend on whether the draft indictment actually had been seen by any grand juror or not, right? Well, I mean, all of the information contained come. I'm sorry. Well, it can be the information, but if it's a draft from before they presented the thing to the grand jury, I mean, it actually matters what the relationship between that information and the grand jury. jury is, it could just be an egregious abuse of prosecutorial ethics that doesn't implicate 60, but it could also be a 6E violation. Well, it could be.

It's hard for me to, I mean, I don't know how much difference it makes, but, you know, it's describing what the informants allegedly did, and that is best. based on what was presented to the grand jury. Or presented in FBI interviews, which might not be grand jury material. It really does depend, but it's grossly inappropriate whether it's a grand jury violation or not. Well, I guess so. But there is case law saying that this is so intimately related to the grand jury process that at least some, some courts consider drafts covered.

All right. So let's turn to the E. Jean Carroll case one and two, by which we mean cases two and one, because they are numbered in inverse order of their going to trial for reasons that don't matter. Roger, you have a new story out about the criminal investigation of E. Jean Carroll and her financial backer, Reed Hoffman, who wasn't really her financial backer, but so this I have to confess, while I'm in the business of confessing things that I have to haven't read yet. I also have not read yet. I spent the week on Catherine Pamphalio's story. So tell us what you found about this very gross abuse of the criminal justice process and where we are

in the investigation of Carol and Hoffman. You know, I sort of last week did a, went over the basics of this. In the article, I discuss, is this an investigation of Carol? Is this an investigation of Hoffman? In either case, what do we know? And is there anything there? You know, too long didn't read. Of course, there's nothing there.

I hope you do read it. It's all, it is all there. What I thought I might add here, and I actually don't go into this because it's a collection. But I do think it's pretty clear to me that Carol was the target originally. And the reporting, a lot of reporters came away with that impression. And then for some reason, and one speculation might be, there are a couple of things going on. It may have gone to the logical place, Southern District, and maybe the Southern District didn't want to touch it.

And then it goes to the Northern District of Illinois, and the theory is, well, Hoffman has his nonprofit is, is located there. And then he doesn't want to get associated with it. And so he makes a statement, I've never opened, you know, my office has never, he doesn't say the DOJ, but his office has never opened an investigation. Now, the other thing going on, and again, this is speculation. But, you know, the case has reached the Supreme Court. Carol 2, which was tried first, has a cert petition pending that has been relisted 13 times, which is unusual.

And then Carol 1 is supposed to file its petition later this month. And so on June 2nd of this week, Trump's lawyers at the James O.C. firm in Missouri asked, filed a letter saying, please don't decide the petition in Carol two until you get the petition in Carol one and then decide them together, which may be what the Supreme Court was thinking all along in doing all these relistings.

There are other possibilities, but that's certainly one. And, um, In any event, at some point, an adult over there in the Trump administration might have said to somebody, this is going to look terrible to the Supreme Court. If you start, you know, going after E. Jean Carroll and it's like a goon, you know, you've got a very good chance of getting at least one of these cases heard. and with this court, you've got a chance of winning. And why are you going to... So it's all speculative, but when you read this weird concatenation of events and the empty record, it's just as empty as Jerome Powell,

the scenario, those are the scenarios that make sense to me. All right. Eric, I knew when we found ourselves the other day at Law Fairs editorial meeting, talking about the judge in Georgia who was disciplined for having sex rather loudly in chambers that somehow this was going to end up in Lawfare live. I didn't know how. I didn't know. But there was just no way that a story this good about a federal judge was not going to, you know, having an affair with a police officer. And there was a Halloween party involved. I mean, it's just, you know, and there was no way it was not going to get wrapped up in stuff.

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Audio and use code audio for 20% off your first purchase. That's bom, b-a-s.com and use code audio. The ratings. Yeah, exactly. So for those who don't know who we're talking about or what we're talking about, give the PG-13 version of this story, which you can read all about in an 11th Circuit opinion if you want all the juicy details. But what happened and why are we talking about this at all? Sure, yeah. The 11th Circuit, I think a couple of weeks ago, issued a, or it might have been the judicial, some higher entity, some multi-circuit judicial panel issued a opinion upholding an 11th Circuit decision, reprimanding an unnamed district court judge who committed misconduct in various ways. Most salacious.

by having sex with a high-ranking police officer, even though they were both married to other people, and doing so in a way that the judge's clerks could hear, and then basically chastising the clerks. One clerk apparently reported to the chief district judge, and this judge then, chastise the clerk and then lied about it the whole thing to investigators. The judge was also reprimanded for attending a victory party for a district attorney who had won a primary. Oh, it wasn't a Halloween party? I thought there was a Halloween party involved somewhere. No.

I believe it was a. a Fani Willis district attorney event. Oh, okay. I don't remember how Halloween got into my mind about it, but. Well, yes, exactly. So no names were revealed any of this, but people, there were a rough, a surprising amount of details in the investigator's report

that was made public that enabled people rather quickly to connect the dots and figure out who it was. and it's a district court judge in Georgia named Eleanor Ross, or I should say, it has been reported that it is. The judge has not admitted as such, and it was also been reported that it was the district attorney was Fani Willis. But it's fair to say that the DOJ motion to disqualify Judge Eleanor Ross on the basis that she is the person named presumably was filed in her court, right? Yes. Oh, it says, and it says, you know, it's a motion, the motion basically says we want to disqualify you, according to all these press reports, you were this judge who had sex in chambers and who attended Phony Willis's victory party. Right. So why does any of that? Like, I understand that having sex in chambers with your audible to your clerks and hushing it up is, that's bad. I'm not saying people, should be doing that. But why is it relevant to cases involving DOJ, unless DOJ was involved in the

sex or something? Like, why does this disqualify her from that case? Well, that's that, it does not. And DOJ is not asserting that it does. It just salaciously included all that, all that part, as frankly, a good litigator would do in order to get to the, the, what they view is the more relevant part, which is her attending Fani Willis's victory party, given that it was a partisan event. She should not have gone. She was properly chastised, reprimanded for it by the 11th Circuit. And as relevant to this case, it involves the victory party of someone who prosecuted Donald Trump for alleged crimes involved in the integrity of an election.

And DOJ says, look, this case that is before you is also very much about the integrity of elections. Gotcha. And DOJ just a couple days ago, filed the motion saying, hey, we would really like you to rule in this very quickly because this is a very important case. And we want, you know, therefore we need a ruling by June 12th. And in response to that, the interveners in the case, which is a very civil rights groups represented by Mark Elias's firm, filed a response basically blasting DOJ and saying, look, you've been so lack of days ago in prostrating this case as you have in so many other cases. It's ridiculous for you now to come in and say time is of the essence. There's basically nothing you could legal,

lawfully do with this information now anyway, even if you got voter rolls, leaving aside the merits of the case, it is too close to the election for the state of Georgia to remove people from the voter rolls, et cetera, et cetera. So it's a, it's a lot of. not clear why DOJ filed that motion. This whole thing may just be an exercise in trolling on their part, but it makes it a little bit more entertaining for all this. All right. Let's talk about Kilmara-Obrego-Garcia. When last we met Anna Bauer with Kilmara-Brego-Garcia, he had not yet moved to Costa Rica. We last week declared that our suppositions had been wrong.

about, you know, his passport and all kinds of things. And then he alerts Judge Sinez that Secretary Mark Mullins has testified and seemed in his testimony to acknowledge that Abrago could go to Costa Rica. So what do we know about, has the administration changed its position about Liberia versus Costa Rica or is Mullins just put his foot in his mouth? Or what do we know? Yeah, it seems to be the latter. It seems like he put his foot in his mouth.

I will say the context of this is he's having an exchange with Senator Chris Van Hollen, who is a Maryland senator who has done a lot to kind of. of raise awareness about Kilmar-Abrigo's Garcia's case. He was the senator who, you know, went down to meet with Kilmara-A-Rigo-Garcia when he was in El Salvador. Did he have margaritas with him? Allegedly had margaritas that were not margaritas or that they did not drink. They were just sitting on the, they were served for purposes of the picture and they didn't drink them. Right. And so he has this exchange during Mullen's testimony this week. And he, you know, says to him, Senator Chris Van Hollen says to him, you know, the point is that Obrigo Garcia said that he will be removed to Costa Rica. And Costa Rica has accepted that. And at one, and in response, Mullen says, great, if he's willing to do that, we'll be happy to send him.

this is significant because, of course, DOJ's position in the case before Judge Sini's is that they want to send him to Liberia. And they've rejected this idea that they can send him to Costa Rica, which is where Kilmar-Abrego-Garcia has designated that he would like to go and that he's willing to go. and there's ongoing, you know, litigation about it because Abrago Garcia's team in the civil case has filed a motion to resolve his habeas claims in which they're, you know, arguing, like, they want to send him to Liberia, but he said that he'll go to Costa Rica and they've, you know, denied that request. And so they filed this notice with Mullen's testimony before Congress. And then, you know, what's interesting, too, is that at the same time, the government has also filed its around the same time after this notice is filed and after Mullen's testimony, the government files its response and opposition to Abrago Garcia's motion for additional discovery on certain issues related to, you know, the denial.

of sending him to Costa Rica. And there's all this discussion in that filing, but it doesn't include a response to, or a reference to Mullen's testimony, or at least based on what I saw, I did not see anything. Maybe it's possible that I missed it, but I didn't see anything responding to it.

So that's the latest been. We still, as far as I know, he still has not left to go to Costa Rica. Rika, but it is an interesting development and we'll see what happens. All right. Roger, we have a decision from the Fifth Circuit allowing Texas to a Texas law enforcement to make immigration arrests under Texas law. what's going on there and why were they not allowed to do it before? Well, this is a long, this is a battle that goes back to December 2023.

Texas passed this law called SB4, and you've probably read about it. it sort of creates, Texas basically created their own immigration laws. They made it a crime to come across the border internationally anywhere other than a point of point of entry. It's a misdemeanor the first time and then depending how many it can go up to 20 years. And of course, the problem is, and state law enforcement can make the arrest, and state magistrates can determine that you're deportable,

and I guess state officials do the deporting. And the problem is that immigration is up to Congress, federal Congress, and Congress has completely exercised its authority. in the area to create a vast scheme telling how- Field preemption or when Congress occupies the field, you can't just as a state have a competing obligation, a competing regime.

How does the Fifth Circuit get around that other than by saying we're the Fifth Circuit? It's, well, the way that you get around so many things, standing. And increasingly, the fact that you're doing something unconstitutional doesn't matter as long as you can. Of course, we don't really know why they did it because it's a one-sentence order. And it's a split decision.

It's two to one. What we do know is this originally, like I said, It was passed in 2023, and at that time, the United States sued, and the United States has standing. And it sued along with several organizational plaintiffs, including the county of, I think, El Paso. And it won at the district court level. and it actually won at the fifth circuit. But then the administration changed. And so the U.S. dropped out and it went to the Fifth Circuit,

rehearing and bank. And then they reversed saying that these organizational plaintiffs had no standing. And so the ACLU signed, filed a news suit, excuse me, in front of the same judge. And in May, in, you know, a 78-page opinion, he is a Reagan appointee. He actually sits in Hawaii normally and found that it was what you said, field preemption and also conflict preemption, second time, another form of federal preemption. And the defense, I guess I should say, the defense. defense has also been, and Judge, our friend Judge James Ho, that time the rehearing and bank reversed.

Ho wrote separately to say, well, Texas is empowered to do this under, it's the Texas State Warpower. And that comes from Article 1, Section 10, which describes things that states may not do unless actually invaded. And so the argument is we're being invaded, and so we have war powers, and this is an exercise of war power. So anyway, the new preemption injunction went to the Fifth Circuit. It was a panel of Kyle Duncan, who's a Trump employee, Kurt Englehart, who's a Trump appointee, Bush put him on district court and then Trump elevated, and Leslie Southwick, and two to one in a one sentence dissent. They stayed the injunction.

Leslie Southwick dissented. So it's a strange thing. All right. Different circuit, different direction, Eric. The D.C. Circuit has stopped, at least temporarily, the dismissal of currently serving trans service. people. Again, what would the panel look like and what kind of legs do you think this has? The panel consisted of Judge Wilkins, who was appointed by Obama, Judge Rogers, who was appointed by

Clinton, and Judge Walker, who was appointed by Trump. And it was appointed by Trump. And it was was, as you might guess, a two to one opinion. Judge Wilkins, it was actually split into three, but there was both Judge Wilkins and Judge Rogers held that as to currently serve, as to the subset of plaintiffs who were currently serving, they could not be dismissed. as to plaintiffs who had already left the military, they were not allowed to rejoin. Or to be more precise, the district court's injunction was affirmed as to the subset of plaintiffs who were currently serving. It was overturned with regard to plaintiffs who had already been separated. Judge Walker in dissent would have vacated the injunction entirely.

Now, some folks may recall that this issue went up to the Supreme Court last fall and last year, at some point last year. And the Supreme Court stayed an injunction that was, or rather vacated injunction that was, issued by a court out in the state of Washington, but the Supreme Court did not really explain why it was doing so, and it could have been on the basis of the overbreadth of that injunction, was a purport to apply nationwide, not just to specific plaintiffs. And so basically the dispute here is over how much deference, to give to the military.

And the, as folks may recall from the very beginning of the administration, they put out a ban on transgender troops in the military, and they did it in basically the most nasty possible way. There is an executive order put out by the president that basically says that if you are transgender, you are a bad person. and we don't want bad people in the military. I'm exaggerating slightly, but it talked about how a person who is transgender is basically living a lie and is devious and untrustworthy, and these are things we don't want in our military.

This is not a direct quote, but I'm really not exaggerating that much in terms of the awfulness of it. And then Judge Wilkins kind of points out, just the even leaving that aside, just kind of the utter expansive, actually I just found the words. I must have read it because it's really so shocking. The executive order says that adoption of a gender identity, inconsistent with the individual sex,

conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle. style and with the humility and selflessness required of a service member. So, and there was also stuff in there in the, the document set forth by, by Pete Hegseth that basically talked about how this applies to anyone who has ever had any symptom consistent with gender dysphoria, which is kind of a technical medical term. I don't have the precise definition in front of me, but it basically relates to a perception of yourself as having a gender identity not aligned with your sex assigned at birth. Yes, and also involving, it also applied to people who have at any point attempted to transition, which Judge Wilkins, which the government has been very squirrely as to what that meant, but Judge Wilkins interpreted it as kind of,

covering anyone who ever describe themselves as being of a gender that is separate from the gender that they were assigned at birth. And he says, look, this is, this is animus, and this is not particularly justified by any evidence that the military set forth. And we want to be deferential to the military, but they've got to do a little bit more than what they've done if they want us to, if they want their policies to be deferred to. Judge Walker in dissent says basically, look, deference to the military is, is a hallmark of our jurisprudence and has been for a very long time. And it extends to the point where the Supreme Court has upheld the military's refusal to allow a service member to wear a yarmulka.

a Jewish service member to Ariyamika, that even where the military did not do a great job of articulating a rationale for why that could be. Now, what actually happened in that case was that Congress then passed a law, forcing the military to allow such, to allow a religious headgarb. And Judge Walker said, and, you know, Congress could act here to do that if it wants to, could to force the military to allow transgender troops. And Judge Walker said, look, I'm not saying that with the way the military way the evidence is necessarily the right way, but this is what they did. And they concluded that having transgender troops is a bad thing. And who are we to question that, given our long tradition of deference to the military? Judge Wilkins tried to rebut that by saying that deference to the military needs to be in situations.

where the military is acting in a reasonable and even-handed way, which I believe is language from the Yarmulka case, and that that was just simply absent here. If I had to guess, I would say that this is not going to hold up at the Supreme Court just because there's such a long tradition of deference to the military. And given the composition of the Supreme Court, I think it would probably wind up being a six-three decision. Although I do think the frank animus of the order makes it a little bit complicated because you defer to the military on its own rationale and its own rationale is a sort of bunch of, you know, bile. And so I do think you could say, I do think the administration did not put its best litigating foot for. with the way it wrote this order.

Yes. I think it's right. I mean, Judge Walker didn't deal that much of the animus. I think basically his position is, like, look, as long as there is, as long as the military said something and put forward some explanation, even if there's a lot of animus surrounding it, it's okay. Right. All right. Anna. Judge Randy Moss.

Yes. Fends political protesters displaying 8647 flags on the mall. And I just want to know what about people with lasers projecting on the Washington monument if you project 8647. Does this opinion cover you? Well, I don't know. about projecting on the monument. But if you wanted to project in other places with a permit, then it seems that this opinion would cover you. Yeah. So what did these protesters do?

Were there any projectors involved? There were not projectors involved. So these protesters are people who had a First Amendment permit to hang signs near the National Mall. They're with a group called Accountability Now. They hung some signs

that made various statements describing Trump as a, I believe it was, as a rapist is the term that they used. But then they also hung a sign that said 8647. Of course, 8647 is the basis of the indictment against James Comey

for alleged threats against Trump. And amid hanging these signs, the National Park Service and the Secret Service both threatened to revoke their permit, and then also the Secret Service paid the volunteer a visit in which the volunteer was asked about the intention behind the sign. The volunteer said, I had no idea that 8647 was associated with threats to the president. I, you know, the volunteer explained, like, I want Trump to live forever, but also, and again, this is the volunteer's words, I want him to rot in prison for that long. as well, something to that effect. And so the Secret Service said, like, okay, we just, you know, wanted to make sure. So the group filed for a temporary restraining order, seeking to prevent

enforcement action, either in the form of, you know, revoking their permit or making them take these signs down as a result of these interactions. And Randy Moss issued an opinion. This week saying, yeah, I'm going to issue a two-week restraining order because I think that this is First Amendment protected speech under the circumstances. This could not be a true threat or incitement, which is what the government had argued in saying that this was not protected by the First Amendment. Moss did say that he didn't, you know, he wouldn't say that in every circumstance, there couldn't be some circumstances in which 8647 did constitute a threat and wouldn't be protected by the First Amendment, but in these particular circumstances, it was protected speech. And that's, I think, really important, even though he didn't mention the James Comey case, keep in mind that the circumstances here are really similar to the James Comey case, right?

Because in that case, he posts the Seychelles photo that says 8647 and then subsequently, says publicly that he did not know that there was this association or a parent association. I was also not aware that it had an association with violence, but he says that and then takes it down. And it's very similar to the circumstances here where the volunteer expressedly says, you know, that they weren't aware that it had this kind of association. So even though it's not something that directly relates to the James Comey charges, I think that it is just important for us to point out here on Lawfare Live, Ben, because it certainly maybe this opinion may kind of track what eventually will be raised in the James Comey case. I also will mention importantly that in this case, the Secret Service mentioned that it had

1,300 active investigations into people using the term 86-47. Now, I have not, I'm not aware of any of those cases becoming actual criminal charges that have been indicted, but I think that that is notable in light of what we assume to be a forthcoming selective prosecution motion from the James Comey team. Well, yeah, so first of all, I think the relationship between the James Comey case and this is a little bit more direct than that. This obviously would not, is not a controlling authority in the Fourth Circuit, but it is an authority. And, Randy Moss is one of the most respected district judges in the country. And also, if this were to go up on an urgent basis to the D.C. Circuit, you could imagine some interim circuit authority emerging out of this.

I assume the government will be smart enough not to appeal it for that very reason, but they've done dumber things. And you could imagine the James Comey case, the First Amendment issue arising in the context where there was some pretty persuasive authority or strong authority or even circuit authority that said, no, the expression 86-47 in social media without more is nowhere, close to the line of a true threat or an incitement. And that, I think, does materially change the way it would be received. Well, and not even without more, right? Because we do have more, which is like a public expression of the fact that there was not an intent. Right. No, no, but I mean, without more in the other direction. Yeah, I see. All right, Roger, finally today, Judge META has stayed what may be one of the last gasps of the January 6th cases, the litigation, the J6 litigations against the president while Trump appeals the immunity rulings.

You know, I thought we established in Paula Jay Jones that you don't get temporary immunity while you're president in civil matters. What am I missing here? Well, I think this was what they're appealing, the temporary, the stay is not because he's president. The stay is because he's appealing an immunity ruling, denying his claim of absolute civil immunity immunity. based on the official acts, based on his finding that most of the acts involved were not official. And so immunity matters have to be resolved before anything else in a... Exactly. And there were actually eight different cases. And he did let one, he stayed seven of them and let the eighth go forward.

Six were easy because Trump was the only defendant or the only remaining defendant. There might have been other defendants earlier. These are all cases of mainly, they're almost all brought by police officers or by congressmen who were injured during January 6th. One of the cases is more sprawling and did have, I think, more than a dozen remaining defendants, you know, like some proud boys, some oathkeepers, some, his camp, Trump's campaign. And he's going to let that one go forward. And then one, my congressman, was down to Trump and Enrique Tario, and he stayed that one. I think even the

one, you know, it's obviously complicated because even the one with multiple defendants, you know, if you're going to let discovery go forward, the question is, does Trump have to pay to send his attorney even to sit by and monitor quietly? And if the case comes back down, loses his appeal, will he then have to do all of those depositions have an opportunity? And Mata said he would have the opportunity to do all of those little depositions again. It is a hard call. But that's, and I don't know if it's the correct one. But, yeah, that's what he did.

All right. Go ahead. We have three questions in the queue. The first is from Matt. Matt, unmute yourself, and the floor is yours. Yeah, thanks. I'm just wondering, as a practical matter, to prevent self-dealing in the form of settling cases against the government, could Congress provide that any classic cases, you know, say if the

president were a party or if it involved his family or some greater class of cases, that any settlement in such cases would have to be reviewed by a federal judge. you know, maybe under an appropriately deferential standard, but just some kind of review to make sure that there was some kind of legally plausible, legal, and factual basis for the claim, or to some reasons that wouldn't work practically. So I actually think, first of all, Congress can't generally create a controversy where there is none. And if there's basically a collusive arrangement between the plaintiff and the Justice Department, then you raise a question of whether the parties are meaningfully even adverse.

There's a more direct way for Congress to address this, which is simply to use its appropriation power to say the government shall not pay a dime to the president, the vice president, the members of his family, to settle any claim, you know, in law or equity or for anything else, you know, while he is in office, et cetera, et cetera, right? You can simply forbid the expenditure. I don't think there's any question that Congress has the power to address this question, but Congress would have to want to. Eric, you've spent more time with the appropriations process than I have. Am I on Mars about that?

No, I think that's definitely right. Another part of, I was focusing more on the word corruption in math's question, which raises, I guess, an interesting issue about whether you could have certain required judicial approval of certain types of claims where they're trying to kick money to their political allies. And, you know, I think you could. The question would be, of course, how to draft that in a way that would not interfere with the mine run of cases where under the Federal Tort Claims Act, there are actually completely normal, legitimate claims filed by legitimately injured people who have no connection to the president and are trying to get redress. Right.

All right. Anonymous attendance. asks, has James Comey's lawyer brought up that in bar restaurant lingo, 86 means bounce, as in, hey, bounce that guy who's drunk and disturbing others? I have not looked at the docket in the James Comey, North Carolina case, but my, the last time, recently anyway, the last time I did that that dispositive motion as to, which will come up under the first amendment slash due process rubric, that this is a grossly overbroad indictment that could mean, you know, could charge all kinds of legitimate speech. That had not been filed yet. I don't think it has been filed yet, but it will be soon. I forget what the briefing schedule is, but, you know, I'll certainly be.

by the end of June, I think that that motion is due. Finally, Elaine- And we should say that it definitely came up. I mean, the various meanings of the various benign meetings of 86 came up in the case that Anna was talking about. Yes. There's no way they're going to miss.

Finally, Elaine asks. And I don't know what this question means and therefore am going to have to punt it to others if you guys do. I'm having trouble understanding it. But how can the current gap between legal theory and practice be narrowed and could enforcement bridge the gap or is that an oversimplification? I'm not sure I know what gap we're talking about here. Do any of you have an instinct about this?

All right. I'm going to, so Elaine, if you want to write me an email, clarifying what you're asking, we will try to address it next week. Last question, Freda asks, what do you think is the probable outcome of lawsuits against the executive order, requiring states to submit to United States Postal Service lists of voters who will receive mail-in ballots.

USPS would only deliver mail-in ballots to voters on states-submitted lists. This rule is now open for 30 days of public comment on the Federal Register. Anna, you and Molly John Roberts wrote a long piece about this. what do we think the like, and I take it this was not stayed from going into effect by the district court. What do we know about any litigation involving this? And what do we think its prospects are? Yeah. So, Ben, I'll be honest.

Molly and I did write a piece about this, but unfortunately, I've been so focused on, I've written a number of pieces since. I, that is, this is not been one that this week, uh, or in the past like 10 days since I think the, um, the rule was published in the federal register, um, that I have been following. So I will have to get back to you guys next week on the answer to this question. But, um, Eric or Roger, do you have any knowledge on this? I'm afraid I don't. I've it's been on my long list of things that I want to kind of bone up on me I think that it was so judge Nichols said it wasn't ripe if memory serves and a proposed rule I don't

think would make it get you a little bit closer but I think they would need to wait for the rule to go into effect in order for it to fully ripen and on the merits I don't have the sense yeah without having dug into the issue all right we will reserve that question as well. Folks, we're going to leave it there. This podcast, and this may come as a surprise to you, but it is part of Lawfair's live stream series, Lawfare Live, the trials and tribulations of the Trump administration. And you can subscribe to that series, and you can subscribe to Lawfair's YouTube page to receive an alert the next time we go live. The Lawfare podcast, if you're listening to this, in audio is produced by the Lawfare Institute. You can get ad-free versions of this and other

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The problem with group insurance is that health care isn't a group decision. It's personal. Group insurance means businesses get one carrier and just a few plan options for the whole company. But that doesn't fit everyone's needs. Now, a new coverage option called an ICRA or ICRA allows employees to buy any plan from any carrier. Instead of a one-size-fits-all approach, plan on something personal. Plan on an ICRA. Learn more at Ambetterhealth.com slash ICRA.