Lawfare Daily: The Trials of the Trump Administration, May 15

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are watching Lawfare Live. And I am Benjamin Netanyahu Wittes, editor-in-chief of Lawfare, and it is the trials and tribulations of the Trump administration. I am here with not one, not two, but three Lawfare Senior editors in alphabetical order, Eric Columbus, no, sorry, Anna Bauer, Eric Columbus, and Roger Parloff. You see, I saw that sea at the beginning of Columbus. and I thought to myself, no one's going to beat C.

And then my eye fell on the B in Anna Bauer, and I thought, don't make assumptions. You know, and it's been a bit of a week, so we're going to jump right into it. Anna, let's start with the rumors, reports, indications, whatever they are, that Trump is going to, the president is going to drop his $10 billion or settle his $10 billion suit against the IRS in exchange for $1.7 billion in compensation for victims of Biden administration, weaponization of the Justice Department. First of all, do we believe this?

How credible are these stories? I mean, well, look, it's been, this scoop comes from Catherine Fowders and the team at ABC News, who certainly have a track record of scooping big news like this. So I have no reason to doubt the veracity of this. of this news, in terms of like whether we think this will actually move forward following a response maybe to this news from, you know, the public or members of Congress, that kind of thing, you know, we'll see. But I certainly think that it sounds like I'm not sure like what, what you're getting at in terms of.

the accuracy of it. Several possibilities. One is the story is totally legit and it's happening, right? This is the basis of settlement and it's being leaked in advance. Second is it's a trial balloon. They're putting it out there in order to see how people react and it may or may not happen depending on what the reaction is. Third possibility, it's loose talk and it's not, and like people say all kinds of things,

but one has reason to doubt that it's actually for real. My impression is that we're somewhere between category one and category two here. Is that consistent with your sense? Yeah, I think that's probably right. And just to remind people who maybe didn't see the news, what exactly the, reported settlement terms that are out there are. It's that instead of doing this $10 billion lawsuit, the Justice Department would create a, as I understand it, a $1.7 billion fund in which people who were allegedly, you know, so-called victims of the politicization of the Justice Department

would be able to kind of apply to receive compensation. None of it is supposed to go to Trump personally, but as I understand it, it wouldn't, you know, prohibit close associates or even his companies from being able to apply to receive funding from this compensation fund. And, you know, it presumably this money could go to people who were convicted and then pardoned for crimes related to January 6th. So it's certainly a very concerning development.

And Ben, I don't know where we're at in terms of between the categories, but it seems like this could be news that is kind of testing. the waters. I will say that this, it's important to contextualize this news as coming on the tail end of developments in the actual case in which the judge ordered, you know, independent Amici to file a brief about whether there actually is a case or controversy that would give the court subject matter jurisdiction on the basis that Trump is suing his own justice department that he has control over. And so there's this question of whether there actually is subject matter jurisdiction for the court to hear the case because the parties are not sufficiently adverse to each other, which is a requirement that you have to have for subject

matter jurisdiction. We actually just got, you know, right after this news was reported by ABC. Today, we got a brief from the Amici that had been appointed in which they don't really make a strong, have a strong kind of stance on the matter, but instead walk the court through various different things that it would need to consider in terms of deciding whether it has subject matter jurisdiction, things like the relative control that Trump has over DOD. the relationship between the parties, different things like that, and seem to suggest that there could be some additional fact finding that the court could do in terms of that extent of control and maybe even alluded to the extent to which the court might be able to kind of have some kind

of supervision over the settlement itself. So it's interesting because all of this is happening, you know, right around the same time in terms of this news coming out and then the Mici brief being filed. So we'll see. Roger, Eric, I'd be curious if you guys have thoughts. Well, I think it's very solid if Catherine is reporting it, that they think it's solid.

And I do think, like you said, that the judge in the IRS case, did not ask these amici to discuss settlement. She asked to discuss, as, as Anna said, does she have Article III jurisdiction? At the very end, it does sound to me like maybe they're hinting that she might have or at least that there are limits to what sort of settlement could exist here

and that there are laws. that govern what DOJ can hand out. You know, this isn't candy. And they're supposed to follow rules. And they've got other cases involving the same IRS contractor who abused, you know, apparently leaked information about other. people who are suing and their cases are being defended. And so it talks about the atypical.

It says the court might ask why DOJ's approach to litigating this case appears to depart from its approach in similar cases. The court may also find it appropriate to inquire whether if the party settle this suit, DOJ intends to comply with the applicable regulatory. requirements and to account for limitations on the relief available under the causes of action assertive. And then it lists some of those. And there are limits also on the ability, one of the statutes makes it unlawful for executive officials to request directly or indirectly that any officer or employee of the Internal Revenue Service conduct or terminate an audit.

or other investigation of any particular taxpayer. So there may be some sorts of enforceable limits. I don't know who would have standing to do this, but they're certainly floating. And we should also repeat. We said it before that these amici are some pretty substantial people. This is, one is Judge Gleason,

former Judge Gleason, one is former solicitor General Verilli, you know, some other heavy hitters. So anyway, there might be some, it seems to be inviting some supervision of what's happening here. Yeah, just to be clear, I was not casting aspersions in any way on Catherine or the ABC team. My question is, there are a lot of reasons. why a story like this may reach them. One is the trial balloon reason.

One is because somebody's disgusted because this is actually happening. And the other is because there's rumors going around about something like this. And somebody whispers in their ear and other people have heard these rumors too. All of those are consistent with these being good reporters. They're not of the same weight

in terms of what's likely to happen tomorrow or the next day. Yeah, and Ben, to your point, I will, because I just went back and looked at the ABC story. You know, obviously you can't, you would be hard pressed to find any reporter on the DOJ beat better than Catherine Fowder's. So no question about that. I just went to look to see, though, what the language and the story was in terms of, you know, what they might be signaling in terms of whether this was a really done

deal or not. And there is a line in there that says something like, you know, sources cautioned that the final terms would not be set until, you know, the deal is officially announced. So there is a little bit of a hedge in the story that the terms could change in the coming days. Right. So I want to connect this to our next item. Excuse me. One of the points of this, of course, is the erasing of the history of January 6th and the law enforcement actions of the prior administration and the coding and the projection onto the prior administration. of the exact sort of weaponization that the current administration, which is busily prosecuting its political enemies frivolously,

is engaged in. And, you know, toward that end, they are also now interested, according to this story, in compensating the victims of that, having pardoned them previously, having dropped charges against people and having engaged in ad hoc settlements with them, they're now interested in creating a victim compensation fund, which is, of course, has echoes of 9-11, right, where Congress set up a victim compensation fund that I think was $6 billion. So this is a third of that or something.

But they're being pretty systematic about erasing the records, even if they can't erase the facts of January 6th and the post-election period. They're being pretty serious about erasing any formal records of it. And that brings us to the next subject, which is the Justice Department's suit against the D.C. Barr over its disciplinary proceedings involving Jeff Clark, the former Justice Department official who tried to turn the civil division of which he was acting head into a arm of the

post-election coup attempt. So Anna, for a... First of all, do you think I'm being glib to connect these two? And or is that fair in your judgment to say, hey, there's a kind of systematic effort to rewrite the history here. And one part of it is setting up a victim compensation fund. Another part of it is, you know, pardoning a whole lot of people. And another part of it is when the people you can't pardon go after the people who are, you know, sue the people who were going after them. So number one, is that a fair account?

And number two is what is the actual federal supremacy clause complaint against the poor D.C. Yeah, Ben, I think that's certainly fair in my mind. I think what we are seeing in terms of a theme for this Justice Department is that one of the defining features of Trump's second term justice department is that part of its mission is to rewrite the history of 2020 and of January 6th. And it ties in as well with one of the other topics we'll get to today, which is the Fulton County 2020 election investigation. But in terms of this complaint, just to just to reorient people a little bit who might be.

unfamiliar with what was happening with Jeffrey Clark's bar disciplinary proceedings. So the DC Bar Professional Responsibility Disciplinary Panel, whatever it's the name is, which is slipping from my mind at the moment, the DC Bar Disciplinary Panel recommended that Clark be disbarred over the draft letter that he wanted DOJ to send to Georgia State officials back in 2020. That was the letter that stated that DOJ had found significant concerns that may have impacted the 2020 election.

He was indicted for that letter in Fulton County, Georgia. Obviously, that case was then eventually dismissed. But after that recommendation for his disbarment, the case is then supposed to go to the D.C. Court of Appeals for a final decision. This DOJ complaint against the D.C.

bar and its prosecutors who dealt with the Clark complaint seeks declarative and injunctive relief to essentially put a stop to these bar proceedings against Clark. And it alleges that the bar proceedings are a violation of the supremacy clause of the Constitution, which provides the federal law is the Supreme Law of the Land. It cites in Renegal, which is a case that we've talked a lot about before on Lawfare Live. It's that case that basically involves, you know, the U.S. Marshal who was assigned to protect of Supreme Court justice, who shot and killed someone who was attacking the Supreme Court Justice.

the state tried to charge that marshal would murder, but the U.S. Supreme Court decided that the guy, the marshal couldn't be prosecuted under state law under the supremacy clause because he was acting within its official duties. And that kind of set up this supremacy clause immunity doctrine. So basically here, DOJ is saying, you know, states don't have the authority to regulate federal law. officials in the course of their official duties saying that Clark was doing so. He was acting

within the scope of his official duties. I think one of the issues, though, Ben, is that, you know, Henry Nagel is a case about a state criminal prosecution. The court recently in a case called Martin has kind of reiterated that Nagel is limited to state criminal. prosecutions. And, you know, it may well apply to criminal matters alone. So I think it's a real stretch to begin with whether supremacy clause, a kind of supremacy clause immunity doctrine, not that it's necessarily the immunity that they're raising, but they're more so raising supremacy clause writ large. But by citing Nagel, I really think that it's a stretch to say that it applies to bar professional consequences.

Not to mention that, you know, there is a federal statute that, that sets out basically that in D.C., you know, lawyers are subject to a D.C. bar authority. So it's, I think it's really kind of a stretch here. And who has the case? Who has the case? It's Judge Leon, which Rob. Roger, I'm sure, is excited because we will get more exclamation points and more data for the analysis. Yeah, and we are going to have a little presentation later in the show on Judge Leon and exclamation points.

We've done a systematic study of the matter, and we're going to present the findings. We're going to – sorry, we're going to present the findings. All right. Well, I just want to say that I think this matter is trivial. The idea that this complaint starts by complaining that a different lawyer for the FBI lied and got a slap on the wrist from the bar.

Jeffrey Clark got disbarred and that's unfair. And therefore, this shows anti-Trump left bias. And I just don't think that this is going to fly in federal court. I don't know. Call me silly, but I think you're going to get a dismissal of this with a lot of exclamation marks from Judge Leon. I one more thing I will add on this too Ben is that this seems to be like Jeffrey Clark's attorneys have tried like every method in out there to try to get his bar proceedings into federal court to like you know there was there were removal proceedings that went up to the DC court of the DC circuit court of appeals you know there this this this kind of of issue of trying to get that those bar proceedings in some way to have a federal hook,

get them into federal court has been tried over and over again. It's ongoing, I believe, still ongoing with the Ed Martin disciplinary proceedings as well, which is mentioned in this complaint. And it's a part of a larger pattern, too, on the DOJ side of trying to neutralize bar professional consequences for the actions of Trump DOJ attorneys, who otherwise, you know, are pretty exempt from the normal consequences of, of attorneys, you know, misconduct in court, the one thing that may well still strike fear in the hearts of people who are representing the United States is the bar professional proceedings that could come of it. And so in that way, this is, you know, kind of attacking directly that one kind of remaining consequence

that may be standing between what Trump wants some of these DOJ attorneys to do and then what they're actually willing to do. Right. All right. Speaking of what lawyers are actually willing to do, Roger Parloff, a government attorney had to go into a federal court to defend the government's position on the Presidential Records Act the other day. What happened?

It was before Judge Bates, John D. Bates, who's a very good judge, I think of a George W. Bush judge. And he was keeping a very, you know, he was keeping it close to the vest. He likes to. Is the soul of discretion. Yeah. He never shows his cards before he writes an opinion. Yeah. And he was peppering both sides with difficult questions.

The context here is that in, I think, April 1st, well, sometime this year the White House counsel asked the OLC, the Office of Legal Counsel, to look into whether the Presidential Records Act was constitutional. And on April 1st, the OLC came back and probably not surprisingly to the White House counsel said, you know what, it is unconstitutional. And the PRA was enacted in 1978. It followed, there was a statute very similar, not identical, in 1974, right after the Watergate scandals. And so that statute's constitutionality went up. There was a case called GSA versus Nixon, 1977, and it said it was constitutional. And based on that, they created the Presidential Records Act and the OLC in 1978,

a guy named Larry Hammond, by the way, who I wrote a book where he was the hero, not about this, said that it was constitutional. And that's the way it's been until April 1st. And so two groups sued. The American Historical Association, that's one suit and another by freedom of press foundation and crew. The attorneys on the second one are crew. And they are seeking a preliminary injunction. or TRO.

And that's what this was about. And so where Bates was focusing, because for a TRO or a preliminary injunction, rather than, you know, you have to show irreparable harm. And so, as we've talked about, a thousand times here. And so he was focusing on the minutia, because the day after they, invalidated the White House, the Presidential Records Act, they promulgated, you know, a quasi substitute. Here are our new, here's our new guidance. And, you know, the new guidance is sort of like you should do things instead of you shall do things. And it also doesn't say, seem, it doesn't seem to say anything about the president or vice president themselves.

It talks about the EOP and their staff. It's unclear about the president and the vice president. I may be getting some details wrong. I'm poured over this. But so also the treatment of text messages is different. And there was a special law in 2014 that a member. the original act in order to, because, you know, technological development to try to say what to do about text. And apparently the new guidance on text is much more limited.

And excuse me, also disposing, if you want to, under the Presidential Records Act, if you want to dispose of records, there's a big rigamarole you go through, it involves NARA, and involves Congress. Here there's no discussion about disposal. And there's sort of open-ended things like text should be preserved where it's the sole record on a subject. So you get to sort of judge where, well, okay, if I later put this into another memo in some sort of way, I can get rid of the text. And there's a lot of on-the-fly stuff. Anyway, what if you want to steal a lot of records and hoard them?

Because I assume that's what this is really about, right? Giving sort of giving permission for what we assume he's going to want to do. I mean, honest, I think what it's really, for these groups, a lot of it is concerned about FOIA stuff, about the normal. I don't think they're so much concerned. I mean, you're right. I think they're more concerned about destruction. But what about the concern that led to that OLC memo in the first place

seems to be to protect him from what we all assume he's going to want to do? That's true. I mean, it shouldn't have, in fact, it could leave him in a worse. spot vis-a-vis classified documents because he can't say that this the PRA repealed the class of the the the espionage act which was one of his claims before but um anyway no you're right it it has to do with all of this stuff about um destroying documents stealing them uh and and hiding them from FOIA uh well actually the EOP is not subject to uh F-O-I-A, but largely, but the agencies all are.

Yeah. And, but I think after a certain length period of time, you can go to NARA and try to get these records. And the former president can, you know, express, can object. And I'm not sure how you adjudicate. those issues. But anyway, there's a highly elaborate scheme for dealing with this stuff. And in some cases, Trump is already the former president, and there are requests for his record term his first term.

Right. 41G motion for return of the 2020 election ballots. And he did not grant it. It seemed like a no-brainer to me, but he seemed to attach a presumption of regularity to Tulsi Gabbard's presence at the raid and doesn't seem as concerned as I would be in his shoes.

No, he certainly seems to be operating under the old presumption of a regularity that used to attach to Justice Department conduct and representations. Ultimately been, and I will say, though, this decision denying the county's motion for return of property is consistent with the way that we thought. things would go after the hearing in which he seemed pretty skeptical of some of the county's arguments. So in that regard, you know, Judge Bully has, or Boulet, excuse me, has been quite consistent in terms of his skepticism. And I think ultimately, if I had to really point, you know, there's obviously a lot of things that he discusses in this opinion, but I, I, I, I think, I think ultimately a lot of it comes down to the fact that callous disregard, which is the kind of key factor here that the county had to show in terms of showing callous disregard for the county's constitutional rights. That's a very, very, very high bar to clear.

And he thought that even, you know, a lack of probable cause may not be sufficient. And so, you know, here it just seemed like for Judge Boulay, he didn't think that the county had done enough to show that that callous disregard factor had been met. Granted, he didn't exactly give the county a whole lot of opportunities to show the callous disregard, given that he quashed the subpoena of Agent Evans previously. before the evidentiary hearing, but he really just was not buying the arguments that the county put forward, especially with regard to that factor that is the most important one as identified by the 11th Circuit. And do you read that as him thinking this whole search was totally kosher, despite being presented with a lot of reason to think they were relying on a lot of,

discredited nonsense in order to get it? Or do you think his view is just a little bit more like along the lines of, well, if they try to use any of this in a criminal case, you'll have a motion to suppress and that's the right place to litigate it? I really am not sure. I mean, I will note that he said that some of the statements in the affidavit are, uh, troubling to his view. So I think that's the closest that we get to his view of, you know, this, this is an imperfect and at times even troubling affidavit, but it just didn't quite clear the threshold, the legal threshold that the county needs to show.

What did you make of it, Ben? Do you have a sense of what he thought from this order? So I scanned the order. It's quite long. I didn't read it with great care. But I guess I thought he was much more dismissive of this than I would be. And he seemed to be saying, if you've got a problem, raise it if they indict anybody, which had me scratching my head because usually, first of all, they're not going to indict the county. And so, and if there's a Fourth Amendment violation, it's a Fourth Amendment violation against the, you know, Fulton County Election Board. And if they indict anybody, it won't be the Election Board.

And so you'll be sort of asserting somebody else's Fourth Amendment rights, which I don't think is likely to prevail. So I think he just seemed to be saying, don't bother me with this. And I got to say, I did not, I was not impressed with that as a, I, like this raid struck me as a flamboyant violation of the law, of protocol, of the way the FBI does business, of, you know, it raised serious candor to the tribunal issues for me. and I have to say I'm surprised to see a federal judge treating it in such a blazze fashion.

Yeah, and especially if it's a federal judge. Like, I know Judge Boulay has had some election cases in the past. I don't know how many of those cases went to the like real kind of in the weeds of how election processes work at the ground level in the way that this one did. but if you are someone who does know how elections work and you read this affidavit, it becomes very clear that there are so many things that are just woefully deficient about it that I would think you would be more concerned than Judge Boulay appears to be in this order. One other thing I will mention, too, about Fulton County News, though, Ben, is that we actually, have additional action in the northern district of Georgia over the past, you know, roughly a week

related to an ongoing investigation. There was a subpoena that was issued to the county for a bunch of information about like who worked on as election workers during the 2020 election in Fulton County. You know, they wanted personally identifying information about what could amount to thousands of election workers and volunteers during the 2020 general election. And the county then filed a motion to quash. I took a quick look before we started, and I don't think that that case has been assigned yet it's kind of hard to tell because it's a miscellaneous case. But it's, that motion to quash based on the idea that, you know, this is an oppressive and harassing a subpoena issued for all these personal identifying details about election workers is pending. So we will have additional

additional updates on that in Lawfare Live in the future. One thing I will note about it, though, that is kind of weird is, you know, this comes out of North Carolina, like the subpoena was signed by an AUSA in North Carolina, whereas the Fulton County, other, the search warrant, was kind of under the jurisdiction of Thomas Albis, who's supposed to be, you know, this Missouri guy who had been appointed to look into election stuff related to 2020. So it's kind of strange that you've got this subpoena that is supposedly coming related to a grand jury in Georgia, but the materials are supposed to be sent to an AUSA in.

in North Carolina, it's all just kind of very odd the way that it's working with these kind of multi-jurisdictional investigations that don't, the offices just don't seem to fit with, you know, the where the conduct actually happened and where the supposed grand jury is operating. So just a few weird details there in terms of that that I think are notable. All right. Speaking of vindictive criminal cases pursued by the federal government, Roger, let's talk about the SBLC case. Here's something that won't surprise anybody. The SPLC, try to say that five times quickly, has sought the grand jury minutes from the grand jury that indicted it. And it is seeking sanctions against Todd Blanche for false.

statements. Let's start with the latter, Roger. What false public statements has Todd Blanche, whose probity should be beyond reproach, made about the SPLC? Well, there were a lot of inflammatory statements that everybody made Trump and Leavid and Kash Patel. But the one that they're focused on is Todd Blanche. He went on the Ingram angle the day of the evening of the indictment. And he said there's no information that she asked about a question that prompted this. He said there's no information that we have that suggests that the money they were paying to these informants and these members of the. these organizations, that they then turned around and shared what they learned with law enforcement

to the contrary, or else we would have known from their own words, that they had given this money to these guys, and we didn't know. And that's false. Shortly before the indictment came down, apparently, at least as the defendants tell it, they were never contacted about this case beforehand, but they realized something was happening and they reached out. And they provided the prosecutors with information about how they were giving about how the instances in which informants gave them information, they gave it to the FBI or other law enforcement. And in fact, there was another odd thing, which was that when they spoke to the prosecutors before the indictment, and they said, the prosecutors seemed surprised that these records exist

because one of their sources had told them allegedly, this is now from the defense's information, told them that the prosecutors thought that SPLC had destroyed all of their records about informants. And in fact, they hadn't. And they turned over 15,000 pages of records about their informants. And that was about, you know, two or three days before the indictment came down. It was a sort of inconceivable that anybody went through those. But anyway, this was the gist of it. They had gone through that the prosecutors themselves would never have said this. Todd Blanche just, you know, didn't know what he was saying. So later, I guess the, he did, a few days later, he went on a different show, Todd Blanche, and said, and sort of,

walked it back and said it is true that over the years they have selectively shared information with law enforcement that's well documented and there's no dispute there they aren't charged with any of that conduct um and uh so that's a and then also in one of one of their papers they said a very interesting thing uh uh they said that oh, moreover, the public comments in question whether the SPLC ever shared information obtained by its field sources with law enforcement are simply not relevant to the charges in the indictment. And it's very hard to understand that sentence because they're charged with wire fraud on the

theory that they lied to their donors about it. it. Yeah, they lied to their donors. They said they were fighting these racist organizations and really they were helping these. But if you're paying them and taking the information and giving it to law enforcement to arrest or bring down the, that's not inconsistent with your stated purpose. So I don't know, it's, there's some, it's strange on its face. But they were also, this is, the SBLC's lawyers were not really, they're not seeking a gag order. They're not saying, order him to take it back to, to, they're not being very specific about what they want. The most specific they get is tell the issue in order saying lawyers can't say false things about the case anymore,

including lawyers who aren't on the prosecution team. You know, sort of we're looking at you, Todd Blanche. Right. You know, and that sort of thing. The other motion, I'm sorry. No, no, go ahead. Yeah. the motion for grand jury minutes.

I should say, you know, this is before a judge, Emily Cudy Marks. She is a Trump appointee. I don't know anything about her. It's a first term appointment. But, you know, as you saw with Judge Bully, if it's a judge who is inclined to give the presumption of regularity, no matter what. Some of these are going to be uphill battles.

The motion for grand jury minutes is, you know, based in part on all the irregularities. We've seen the many, many, the false statements afterwards. Also, the Kash Patel has been attacking SPLs. see for, you know, for like a year. And the other indicia that there were odd things were, you know, four of the counts are that bank fraud count and they left out, they just omitted one of the material elements that you, I think, I don't have the words in front of me, but you have to want to influence the bank.

the it's also unusual but not uh not a fatal flaw in the wire fraud counts they don't identify any of the false statements that's unusual uh i haven't seen it before but uh it doesn't it's not a fatal flaw because you can get that stuff from a bill of particulars um but uh so it's Yeah, we'd like the grand jury minutes and then there's backups. Alternatively, we would like the judge to review it in camera and see if any of it should. And then alternatively, and maybe the best bet would be give us the introductory and the instructions to the grand jury. The stuff that doesn't involve witnesses, the least sensitive stuff, there's the stuff that's least, yeah, the least reason to keep secret. The standard generally is you have to show compelling and particularized need under Rule 632.

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All right. It is time for me to tell you guys a story. and it's a story about Roger Parloff. Two weeks ago, in the last episode of Lawfare Live, the trials and tribulations of the Trump administration, I made an impulsive decision that the grand conspiracy segment of the show required theme music. And I chose, as the theme music, really on. the spot, Elgar's pomp and circumstance.

And I want to stress that this was a spur of the moment kind of thing. And it was, I chose it because I was focusing on the word grand. And I thought, what was a piece of music that would convey pomp and grandeur and

And ceremony, you know, something that really befitted a grand conspiracy. And nobody said anything at the time. But a few days later, I got a text from Roger, also to Molly, that reads as follows, Molly and Ben, I have an important matter to discuss regarding Trump trials. For the theme music for the grand conspiracy, I think Elgar's pomp and circumstance has associations that are just too benign because of its link to graduations. May I suggest Bach's Takata and Fug in D minor open to other suggestions too, to which Molly John Roberts responded by proposing the opening to Alsacebracht Zarathustra.

And this, I confess, started me on a long, I'm sure longer than Roger intended when he sent the text a spree of proposals for possible grand conspiracy music. And I want you all to understand this was a unanimous decision by the committee for the choice of grand conspiracy music. We discussed all the possible options. And we came to the following conclusion. And so it is my pleasure to introduce to you the new grand conspiracy music of, that is now herein after the official lawfare trials and tribulations grand conspiracy music.

So that's going to lead from now on all the segments. And that is a long-winded way of bringing us to our grand conspiracy segment this week, which unfortunately is going to be a little bit underwhelming. We almost didn't include it, except that we had. had to because we had to introduce the new grand conspiracy music. Anna Bauer, there are developments in the John Brennan case that wouldn't otherwise be worth talking about, but bring us up to speed on them. I will bring you up to speed on them, but first I would like to raise my objection

to the fact that I was not included on the Grand Conspiracy Music Committee. because my It was a self-off- It was a self-reported You weren't present at the At the Yes I was I was I think that was the week

I was on vacation But my submission would have been Some type of I do like this choice But mine would have been I like to imagine All of us in the Lawfare Office with our

a red string on the, you know, like what's it, the cork board at like 4 a.m. with heavy metal music playing in the background. To me, that is the grand conspiracy music. So, but I do, I do like your choice, Ben. So the underwhelming. It was the committee's choice. I nominated several options, including one that I promised I could sing. if necessary. And this one I cannot sing. It's completely... Also, one of... Is that song, what language is that in?

It is in Italian. I thought so. Perfect for Joe... For Joe de Genova. Exactly. Yeah. All right. So our underwhelming grand conspiracy news of the week

is that multiple outlets are reporting that the FBI has been interviewing current and former CIA employees about the John Brennan case. These interviews appear based on the reports to be exclusively focused on John Brennan and his testimony before Congress in 2023 related to the Russia dossier. That's all I've got for you, Ben. All right. And conspiracy updates. That's a hell of an introduction for a headline, but the music will be back next week and all other weeks. As long as the grand jury, the grand conspiracy is around, Tito Gobi will sing Yago's credo. All right, Eric Columbus, back to more serious matters. Judge Linda McMahon in the Southern District of New York has received.

a whole bunch of doge-backed cancellations of grants. It's like 140-page opinion. I glanced at it, and I was like, I can't handle this. I'm not reading this whole thing. So tell me about it. Well, it's a lot. Big parts of it are entertaining, actually. It is really unusual opinion that you can make a pretty decent book out of it due to the subject matter, which.

basically is 20-something-year-old Doge Bros. Feeding into Chat-G-T descriptions of National Endowment for the Humanities grants and asking ChatGPT whether these grants had DEI in them or not. And the answer quite frequently was yes, which suggests that the output you get from an AI model is very much determined upon the input that you give it. And this is, this case involved more than 140, 1,400 grants awarded by the National Endowment of the Humanities.

These grants were terminated in early April, 2025, basically by Doge, and under the direction of a couple of 29-year-olds. And these were the ones whose depositions became public a few months ago and got a lot of attention when they came across as a bit callow, shall we say, in their descriptions of what they did. They didn't seem to have much understanding of what was meant by DEI or any basis of why it was good public policy to do with what they did. And grant recipients sued to challenge the termination of their grants. Judge Linda McMahon last year issued a flimmering injunction. Now she's issuing a permanent injunction, and she goes into great depth in this opinion, which is kind of a travesty at every turn of what our government has done.

She notes early on that the underlying statute for the National Endowment with the Humanities says that their program should, quote, reflect the diversity and richness of our American cultural heritage, including the cultural of a minority, inner city, rural, or tribal community. So DEI is kind of baked into the statute. And that apparently is in the duties of the chairperson. And then first basically kind of talks about whether she can, you know, what she can do here, whether this is the type of suit that needs to be funneled to the court of claims in the way some other grant disputes have. And she concludes that, no, she can, she could hold on to it because there are First Amendment claims involved and because the plaintiffs are challenging the lawfulness. of the termination of the grants, they're not, and this may be a subtle difference, but they're not presenting the government with the bill and demanding to be paid. That may require a separate

proceeding. That may require that we go to the court of claims or not, but that's not something they need to do, that they are asked before at this point. She catalogs at great length the the ludicrousness of the decisions made by the doge bros and in determining things that are DEI. I mean, they literally fed things into chat GPT. And whenever chat GPT heard something about, I mean, it's kind of like the old quote attributed to either gervels or goring. I'm not sure who.

When I hear the word culture, I reach for my revolver, which chatGBT seemed to have this kind of similar view that anything involving just a hint of deviation from white male Christianity was viewed as suspicious. For example, a project to recover and analyze ancient writings attributed to Moses, but excluded from the canonical Hebrew Bible, was classified as DEI because it claims. to, quote, provide important insight into Jewish thought from 2,000 years ago. Anything involving the treatment of Uyghurs in China was viewed as DEI because it involved people in Asia, things involving women, things involving African Americans, and on and on, with increasingly humorous examples, which the reading. can enjoy for 100 and for many of the 143 pages. And she concluded that this was ultra-virus,

meaning that it was exceeded the statutory authority of the Doge Bros to do. These were decisions entrusted to the National Endowment with Humanities with prescribed decision makers and decision bases by Congress, and that the people who made the decisions and the reasons why they made them were just not at all permissible. And she further concluded that this was something that this violated their First Amendment rights because it was based upon their viewpoints, the grant recipients. And furthermore, in many cases, violated equal protection because it was based on race or religion. So it's very interesting opinion and just it's kind of remarkable how we kind of got to this point after 249 years of being an Asian. Yeah.

Okay. So we're going to have to, we have half an hour left, so we're going to go for relatively quick answers. But let's do our First Amendment roundup. We used to have an immigration roundup. Now we have a First Amendment round up, too. The D.C. Circuit held oral arguments in the Mark Kelly case against Pete Hegseth. And Roger, I was surprised to read that Judge Karen LaCraft Henderson seemed strangely sympathetic to the government's position.

Yeah, she did. The panel was Henderson, Pillard, and Pann. And it says I won't spend too much time on this since it's all speculative, but it did seem to be forming on political lines two to one. It's surprising because Henderson has. been, you know, much less Trumpy than a lot of people, including me, might have expected her to be. She's written some pretty interesting and gutsy opinions, particularly on the, she was one of the judges they reversed in the immunity case. Yeah, the immunity case. Yeah. The immunity case.

Yeah, no, that's true. I think that this, of course, we're talking about the senators, the video he did urging people that they had an obligation to not to follow illegal orders. And the part that seemed to disturb her was it did seem to her that you could understand stand what he said in the context of what was going on as telling National Guard people who were being sent to interstate to Portland or wherever that they could decide not to go. And I think she came back to that example. And of course the key here is that active duty military do have reduced First Amendment rights. rights. That's never been applied to retired military, which is what Mark Kelly is. And there's,

there's like one conceivable case, but it's from the 19th century before basically modern First Amendment jurisprudence was invented. So, but, but, But she did seem to be going in that direction. I think she'll be alone in that. There was so, and there was a, there was a, there was a lot of dispute about a line in the government's brief that no one, where the government said something to the effect, well, if he wants to have free speech, he can sever his ties to the military. And, which seemed to mean he would have to lose his retirement. And then there was a factual dispute. would he really lose his retirement or not?

Nobody seemed to be certain. I don't know if that's going to actually make it into the ruling, but yes, I think it looks like a two-one decision. All right. We also had oral arguments in not one, but two cases involving the free speech of lawyers. The Perkins-Cooey case and the other law firm cases and the Mark Zade security,

clearance cases, who heard those and how did those arguments go? Yeah, this was Chief Judge Srinivasan, Nina Pillar again, and Naomi Rao. Both cases were argued, both the law firm cases and the Zaid case were argued by Abyshek Kambly. That'll be his last case. I think that was his last day. the law fair cases, the law firm cases were argued by Paul Clement. And boy, is he good at this. He's the best there is. He was good at this.

And he was handling all of the law firms. So if you remember the law firm executive orders had five sections. One was the outrageous, you know, venting section saying, here's why I'm punishing you. you hired a guy that went after me 30 years ago. You know, so that was section one. Section two was everybody in your firm, even the paralegals, you know, even the Shusine guy. They all lose their security clearances if they have them for whatever purpose, you know, military reserve, whatever.

And the third and the third and the fourth and the fifth were after that they were pretty clearly crazy. You know, the fifth was like, you know, don't let them into a federal building and any of these people in these law firms. So the most difficult ones to figure out were section two, which is the security clearance, because there's law that if you go through the normal process, and there's executive orders set up a procedure, and 13 factors are considered. And if they decide you don't get a clearance or you lose your clearance, not only can you, it's unreviewable.

It's unreviewable. It's not even a question. So, yeah, it's a political question. And so how do we distinguish this? And Judge Srinavasin seemed to be saying, well, I mean, all of the law we have is about making a national security decision. This isn't even a national security decision. He's not saying, I don't trust these people. He's saying, I'm punishing them.

and it's not like we have to go behind. It's not like we're saying this is pretext. That is the record. You don't have to go behind the record. You have to go behind to imagine a national security angle. So that seemed to the way he was going. I think the way Clement, another way Clement was saying, well, it's because it's categorical, it's blanket.

it. But even there, Srinavasin wasn't sure if that would work. Because, you know, if you said categorically, Hamas sympathizers were not going to allow them to have classified information. Right. That wouldn't be crazy. Conceivably, you could, you know, and there, you know, there was law that on an individual level, if somebody wants to be crazy. wants to say they discriminated against me because I'm black, you can't, it's non-justiciable. So, you know, that's sort of a racial category if it's one individual doing it. So anyway, that was the toughest decision. The second was, what about that section one?

And not all of the, you know, suppose you strike down sections two, three, four, and five. what would it mean what does it mean to strike down and is that government speech that's protected by the First Amendment is it the president's speech? And so most people seem to be thinking, I mean, Clement was saying, well, look, if he wants to say that on true social, fine. But it's different if you're, it's in an executive order where you're saying it is ordered. And then the whole government is sort of listening. And what do we do with that? And they brought up the, if you remember that amazing Pam Bondi compliance order. When one of the judge, you know, when a judge rules and grants of PI, a preliminary injunction,

the defendant has to inform all of his staff of the preliminary injunction and then get back to the judge and say, yes, in a compliance memo, here's what we did to inform every. And so we had the compliance order from Pam Bondi for one of these, which was, you know, of the nature of, well, the radical lunatic judge, you know, ruled against. us, we're going to appeal him. And by the way, nobody can tell you who to associate with, but here's the text of his order. And so this was a DOJ that you cannot trust. And so if you leave any part of this order standing, people may think they need to. So that was the argument. And Rao did seem to want to. Naomi Rao, she might try to narrow the injunction. She wanted to argue.

She had points that the government hadn't raised, which is very common with her. She raises her own arguments. She and she kept saying, no court has ever ordered a security clearance restored. and Clement was saying, well, you know, a preliminary injunction restores the status quo. This was what it was before he wiped out all of these security clearance.

And they still permit, you know, an individualized procedure if you want to get rid of it. So that's how that one went. After that was the Zaid argument, Mark Zade, who's this national security lawyer, a much tougher. case. Yeah. And he was sort of eliminated in a list of people that Trump was punishing. The Biden family. The Zaid represented one of the whistleblowers that led to the first impeachment.

I think Alexander Vindman might have been in the list. that there was a bunch of, I think Hillary Clinton might have been in the list, but the problem there was if the president, it was fairly individualized, and it was the tweet itself or the order that came out of it was fairly, it didn't explain why it was doing it. And it's a tougher case, how you get around that justiciability question. And yes, he didn't go through the 13 factors, but is a president bound by a prior EO executive order? Probably not.

It might be, you know, presumed that he's, you know, amending it to the extent that it's necessary to do that. So that was a tougher case. He was represented by Abilow. All right. Eric, who is Francesca Albanese and how many exclamation marks did it take Judge Leon to vindicate her First Amendment rights? Francesca Albanese is a former special rapporteur for the United Nations Human Rights Council, special rapporteur on the situation of human rights in the Palestinian territories. And she was sanctioned by the State Department pursuant to an executive order that applies to people who have done work on behalf of Ada the International Criminal Court.

and her husband and son filed suit. And she and Judge Leon ruled in their favor in a 26-page opinion that by my count featured seven exclamation points. Although I might have missed one or two. It's always possible. The question was whether or not they allege that the actions taken against her violated her first amendment rights and also violated some statutes. The judge, somewhat unusually, rule on the First Amendment and did not rule on the statutes. Usually a judge, if it's one or the other, will go in the other direction. The constitutional claim may have been easier here.

However, the hardest issue is whether Albanyasy has enough contacts with the United States because she's not American citizen. She lives in Tunisia. However, her son was born in the United States. She owns property in the United States that is affected by this. these sanctions and she's not allowed to come to the U.S. or teach in the United States, which she had been doing beforehand. And basically the executive order imposes sanctions on the international criminal court, including people who have, quote, directly engaged in those efforts.

She had, in her writings, she is extremely anti-Israeli, which is, I think, the reason why she got on the radar screen of the administration. She, the ICC part of work was limited only to writing recommendations to the ICC regarding what she felt it should do in terms of bringing people to justice. And Judge Leon basically said, look, this is classic viewpoint discrimination. you're not, if she worked at the ICC might be a different case, but you're not doing it. You're not sanctioning her based on anything that she, any formal action she took, but rather just what she said. Just what she said. And that for Judge Leon was enough to doom the sanctions.

All right. Well, we're going to return to Judge Leon and his excellent. exclamation points at the end of the show. Let us turn to our immigration roundup. Roger, we're going to have to fly through this, but I would be remiss if I did not begin by asking you about U.S. District Judge DeBose in Rhode Island, who was the subject of a remarkable piece by one Roger Parloff. you might know him. And her referral of Assistant U.S. attorney, Kevin Bolan, her disciplinary proceedings. What happened and how did DHS respond to your piece?

So on April 30th, DHS released a release that said the headline was, activist Biden judge releases violent criminal illegal alien wanted for murder. And there were three things left out of that. One was that the judge had not been told about the homicide warrant. The other was the AUSA knew about the homicide warrant, but didn't tell her. That's Bolin. And the reason he didn't tell her was that ICE told Boland not to tell her. And Boland assumed ICE had a good reason. Maybe that the international Warren from Dominican Republic, maybe the Dominican Republic hadn't signed off on it, whatever it was.

But ICE had told somebody. As a matter of fact, ICE had told the world. If anybody had Googled this, they would see that on April 7th, ICE on Twitter issued one of its highly political, basically a thread press release that said that this guy was wanted for murder. And then on April 16th, they had issued a release saying the same thing, five people mentioning him among five people. naming him saying there was an international warrant for homicide. So I think the innocent explanation is the right hand didn't know what the left hand was doing, the right being the lawyers working with and agents working with Bolin, the left being the berserk media apparatus at DHS.

But you run out of innocent explanations when you get, to April 31st and say, why is the DHS thing still up there? And it's still up there. And so I run out of innocent explanations when the general counsel of DHS responds to your piece pointing this out with a piece in the Federalist reiterating the slanders. Well, it was sort of new slanders. But But not backing off or saying, not backing off, sorry we misled the federal judge. Yeah.

You know, I had asked for comment on May 8th, and then I published story May 12th. And then about 12 hours later, the email, I got a reply, and it was this link to his article in The Federalist, James Percival, and that's somebody, whose name you should remember. And it tries to make a post hoc crazy explanation

that nobody could conceivably read that press release to say. And you can read the whole thing online. We don't have time for it here. I do invite that and to familiarize yourself. It's quite a story. And Percival is an important figure. Yep.

All right. Speaking of long running trials and tribulation story, there's developments in Judge Boseberg's confrontation with DHS, specifically. This will be no surprise to anyone. The ACLU has gone to the en banc court, the en banc D.C. Circuit. What do you think their prospects are there? Strike me as pretty good.

Boy, I am really hoping so. You know, we've had these two split panels, majority Trump appointees. In fact, it's really just three. judges because Rao was on both panels that have stopped Boasberg from looking into the biggest scandal of this administration, this, you know, how it was that 137 Venezuelans were sent to Saccat where they were foreseeably tortured against the order of Judge Boasberg. And I won't rehearse the whole thing, but the the a couple excerpts from the motion, the panel preemptively decided that the district court's

order was ambiguous and could not therefore support a criminal contempt finding, even though the government lawyers handling the case stated that they understood the order. And then dot, dot, dot, dot, the panel's ruling sends a dangerous message that the executive branch can escape judicial orders by asserting spurious post-harmes. rationalizations that manufacture ambiguity where there is none. And I would just send, going back to Mr. Percival and the thing that he wrote in the Federalist, spurious post hoc rationalizations, that is him in a nutshell. And, of course, he may have played a role in this case. We don't know because we haven't gotten that far.

All right. Yeah, go ahead. Go ahead. No, no, we should save time. All right. So we now have a solid, multi-jurisdictional circuit split on the mandatory detention matter. By my count, it's sort of two or two to one or two to two or two to one with one court all over the place. How do you understand the state of the law of mandatory detention?

At the court of appeals level, I think it's three to two at the moment, meaning three court of appeals have struck down Trump's mandatory detention policy. that's the 6th Circuit, the 11th Circuit, and the Second Circuit. Two have upheld it. That's the Eighth Circuit and the Fifth Circuit. Every one has been split, two to one, except the Second Circuit, which was 3-0. And so it's a little disappointing that it is so politically fraught. The Seventh Circuit was

it arose in a different way so that the decision wasn't going to be binary. It didn't have to be binary. And so one judge said yes, one judge said no and one judge decided it on another ground. So the Seventh

Circuit doesn't. I think that I also listened to the First Circuit and it looks like it will probably join the group striking it down. two to one. All right. Finally, we have the case of Venagos v. Tom Homan, which involves a gentleman, a U.S. citizen,

who has now been detained by ICE three times in a year. How does this happen? I guess it's like somebody has to be at the end of the bell curve. What is he doing? Well, he works construction. And by the way, I think he testified in front of Congress today because of this phenomenon. Completely unbelievable. And he sued a while back.

He's suing for damages. But it's significant also because I think he did want an injunction. And, of course, one of the problems, as we've seen here over and over, is the Lions case. We saw it in Pardomo Vasquez. we saw it in a Minnesota case where... This is the case that says you can't reasonably anticipate that it's going to happen to you again, so you're going to have standing.

Yeah. Well, I think after three times, maybe you can reasonably anticipate that it's going to happen again. When you turn the corner there, and I think maybe three is the charm, because the Predomo Vasquez, they did have a plaintiff that had happened to twice already. This guy works construction.

He's Hispanic. He looks Hispanic. He's a citizen. And they just keep rather violently, allegedly, allegedly, illegally stopping him, illegally detaining him. And it's been three times now. All right. Eric, Court of International Trade strikes down another set of tariffs.

it's almost like you can't replace the tax code with tariffs unilaterally without an act of Congress. Almost like that. And this is a after in February when Trump lost the Supreme Court in Tariff's case, four years, I think five days later, he invoked statutes, invoked tariffs under. what's known as Section 122, which authorizes him to impose temporary import surcharges of up to 15% for no more than 150 days to address, quote, large and serious United States balance of payments deficits. And this has never been used from a statute day back I believe 1974. It never been used before. and some tariff recipients sued.

And the Court of International Trade Panel, the 21 decision struck it down. It said the administration failed to demonstrate that there was a balance of payments deficit as the term was understood in 1974 when Section 122 was enacted.

that they instead were trying to change the definition and look at things like persistent trade deficits. And this gets into a lot of kind of complicated macroeconomic stuff, which I will spare our listeners. The dissents said that, well, you're kind of capping the president's discretion too much, and it would be better to kind of go on further and wait and have almost like a mini trial to kind of determine what the term means. the panel split along partisan lines of two Obama appointees versus a George W. Bush appointee. A couple of days ago, the Federal Circuit, which here is appeals from the Court of International Trade, put in an administrative stay on the U.S. which, at any rate, just did not apply globally,

just applied to the kind of few people at issue in the case in a couple of states. And I'll leave it there for now. All right. Finally, Roger, we have a new building things of litigation. This one over the weird decision to paint the reflecting pool blue. First question, who has standing to bring such a case? And secondly, what might such a case consist of?

You got to unmute yourself. Yeah. This is, I'm looking for, we might need a separate podcast just for his monument, Trump's monuments at this point. Certainly separate theme music. Yeah.

It's the cultural landscape foundation and a landscape architect named Charles Bernbaum who have sued. And they're actually represented by the Washington Litigation Group. And the theory is there's some of the statutes we've seen before, the National Historic Preservation Act and the National Environmental Protection Act. And, of course, they say that, you know, work commenced with just no thought toward following the processes that the plaintiffs say are required here. They say, now we haven't had any filing from the other side, so I'm hesitant. I don't know. But they say Section 106 of the National Historical Preservation Act requires content.

consultation with national historic monuments. This is obviously one. It's been there since 1924. This is the reflecting pool that stretches from the Lincoln Memorial toward the Washington Monument. And Trump on April 23rd, I think, announced he's going to paint it like swimming pool blue. and they say, you know, it's not going to reflect anymore if you paint it, swimming pool blue. That's a big change. And they would like to. And so this group, the Cultural Landscape Foundation,

says that if you follow the rules, you're supposed to allow consulting groups, people with an interest like that to weigh in. And they are one of the groups that traditionally weighs in. and that's their standing. The guy, as with some of these other cases, they claim that there is an aesthetic, and I'm sorry, I still haven't checked the cases,

that there is such a thing as standing for aesthetic injury when natural or Friends of the Earth, Inc. versus Laid Law Environmental Services from 2000 is the Supreme Court case. they're lying on. We'll have to see if that holds up and it's in front of Judge Carl Nichols so it won't be a cakewalk.

All right. We are going to forego audience questions today because I have a very special presentation for you. As many of you know, Judge Leon has an affinity for exclamation marks. And Roger has been tracking both the use of exclamation marks in Judge Leon opinions and also exclamation mark density, which is a more rigorous way to do it, you know, how many exclamation marks per page.

And so I decided that it was time to apply rigorous scientific standards to this question. this is really what AIs were built to do. And so I had Claude prepare me a report on the use of exclamation marks. This is entirely AI written. And it is entitled, a lawfare bagatelle, Judge Leon's exclamation marks, a measurement of punctual insuborance in the published opinion of U.S. District Senior Judge Richard Leon May 2016 to May 26. And as you'll see, if you look at it, it's an evaluation of 272 opinions and a million. 0.07 words of prose. It's 432 exclamation marks, which is a rate of point of point. 0.405 exclamation marks per 1,000 words.

As you will see, if you look at the chart called the Bench Crackle Index by date, there are four eras here, the pre-Trump, the Obama era, the Trump one era, the Biden era, and the Trump 2 era. And the density of exclamation marks is growing the whole time. time. So it does seem that Judge Leon is just getting more excitable as he gets older. But then it really explodes in the Trump II era. So I think we should ascribe his increased use of exclamation marks to a combination of aging and Trump derangement syndrome, whether it's warranted or not, I leave to the viewer.

There is a very good chart of the era summary. And the pre-Trump era, he was averaging 0.16 exclamation marks per thousand words. By the Trump 2 era, he's up to 0.95 exclamation marks per thousand words. And then these are the top 10 exuberant opinions. And they're going to surprise nobody. Number one is National Trust for Historic Preservation versus the National Park Service at... That's the ballroom case. That's the ballroom case.

The law firm case, Wilmer Hale, which is really the first case that we all noticed the exuberance, is number two. Kelly v. Pete Hegseth, which is now on appeal to the D.C. Circuit, number three. A Biden-era case. U.S. v. Callaway, which appears to be a criminal case. Number four, rural development innovations limited versus Morocco. I assume that's Pete Morocco is number five. Another National Trust versus Historic Preservation v. Park Service case is number six. National Association of Mutual Insurance Companies v. United States Department of Housing and Urban Development, number seven, and then three other cases. So all together, one, two, three,

four, five, six, six, seven cases out of the top ten are of the Trump II era. So look, this is the type of data-driven analysis that you come to lawfare for. And we are going to, keep the database current. So every time Judge Leon issues new opinions, we're going to add them to the tracker. And we will keep you posted if there are new cases that break through the density. And I will be sending Claude's report to Judge Leon's chambers so that he can know, you know, there's accountability in this. Folks, we are going to leave it there. this evening. This has been a part of Lawfair's live stream series Lawfare Live, the trials and tribulations of the Trump administration. You can subscribe to Lawfair's

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