Lawfare Daily: The Trials of the Trump Administration, April 24

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It is Friday, April 23rd, 2020. It is 4 o'clock p.m. in Washington, D.C., and in all. hotel rooms in New York City. You are watching Lawfare Live. The Trials of the Trump administration. I'm Benjamin Netanyahu Wittes. Editor-in-chief of Lawfare, and I am here with Lawfare Senior Editors, Eric Columbus, Roger Parloff, and Anna Bauer. And on his last day, as a Lawfare, Public Service fellow, Troy Edwards, who is moving on to the next big thing starting next week. Folks, we've got an agenda that is so packed that I am going to keep my witty banter at the beginning to an absolute minimum.

And I'm also going to ask all the panelists to be relatively brief in answers, or we're just not going to get through stuff. and I may or may not suspend questions for the week, depending on how we're doing on time at the end. It's been a big week in the politicization of the Justice Department, and I want to start with the indictment of the Southern Poverty Law Center. LT, I got to say when I read that indictment, I was skeptical that it would survive a motion to dismiss for a number of technical reasons. But my knowledge of fraud prosecutions is not super refined. Yours is better. So, first of all, give us a little overview of this prosecution.

and secondly, how cooked is the goose of the Southern Poverty Law Center? Yeah, so you said there are a lot of indictments. I actually printed a ton of them, and this is not common. And all of these are indictments from this past week that we're going to talk about. This first one, the Southern Poverty Law Center, has raised a lot of questions. My experience has not typically been in the white collar space, but in reading through the charges, a couple of things have stood out. The background here is that the Southern Poverty Law Center,

the civil rights institution historically known for kind of its work against entities like the Ku Klux Klan and other hate groups is alleged to have misled their donors by telling the donors in raising funds from them that they would engage in dismantling these hate groups and then taking the money that they raised through those statements and using it to pay field agents, what the indictment alleges are known as pseudonyms like F2, for example, these field agents that are parts of these hate groups or members of these hate groups and contributing to their work or their statements. And then there are a number of downstream fraud allegations,

basically from that core set of acts that the Southern Poverty Law Center, took money from people telling them they dismantle these groups, pay field agents, and then engaged in material false statements with banks or other financial institutions to store that money and then pay these field agents. And so that's the kind of the quick factual narrative. The charges range from wire fraud charges stating essentially that I'm just trying to put my best legal hat on for the DOJ here, that the material false statements of dismantling the members and then taking the money and paying these hate groups, that's the kind of allegation of the wire fraud. And then there's false statements in loan or crediting institutions, which there's basically four or five bank

accounts that some individual at the Southern Poverty Law Center opened. And the allegation is that When they opened them, they made some materially false statement. I believe this is the same charge that Letitia James was facing. And then there's a charge of conspiracy to do some kind of concealment money laundering. And that hooks onto the wire fraud. In other words, if you acquire money illegally and then you engage in concealing that money that you've illegally acquired, it is a specified an S-U-A, a specified unlawful act, and you conspire to do something with that unlawfully gained money, you can also be charged for that conspiracy.

And those are the charges that they're facing in the indictment. How confident are you positively or negatively that this indictment does or doesn't have potential legs? I mean, I look at it and I say this look just looks defective to me. But what do you make of it? Yeah, there's a reason you feel that way. I think it's justified in looking at some of the... of the law and fact and the indictment. Now, obviously, look, an indictment needs to meet some minimal thresholds under Rule 7. So don't be surprised if there is some discretion to the government

in meeting that threshold. But the reason you feel that way, I think is justified in that when you look at the wire fraud charges, this allegation that SPLC saying that they would dismantle these hate groups to donors and then use that money and then pay some of these field agents to gain insight and intelligence from these hate groups, that that was in some way a materially false statement to the donors or some way some fraud or artifice to defraud these donors. I think that's a potentially, it's an arguably vague allegation that this was some affirmatively false and material statement to the donors. In other words, is the government going to be able to put some donors up on the stand and

say, yeah, I feel misled? I feel like, there's no way I would have allowed this. And even that may be insufficient, but I'd be curious if they can get past that vagueness problem of these statements from SPLC. I will say I'm not as moved by some of the reactions I've seen saying, well, this is what law enforcement does all the time. And so can the FBI really be, you know, alleged to be members of the KKK because they pay confidential sources? To me, I just see law enforcement entities is very separate and apart. Like there is not a what aboutism there. but I will say the vagueness argument is a good one against these wirefront charges.

Yeah, I also think that there's a, I'm not sure the problem is limited to vagueness. So it seems to me that the problem is that how do you know you are not dismantling the organization by paying individuals for information about it? That is, I don't see any inherent conflict. And I'm not defending these at CLC, S-P-L-C, sorry. There are legitimate controversies about it. But it seems to me the conduct is arguably a simply a tactical decision in support of the mission as articulated to donors. and they don't seem especially at odds to me, much less misleading.

That is, if you had them up on the stand and you said, what's the relationship between giving $100,000 to a Grand Wizard? They'd say, well, he was giving us all the intel we wanted on the plans of the organization. That doesn't sound inherently misleading to me. It's not like, you know, I'm going to build the wall, give me your money, and then I pocket your money and spend it on luxury items, right? Yeah, that's really interesting you say that because in the indictment itself, they list out a number of the field agents as examples of this wire fraud and the way that the SPLC paid these members. And in a couple of them, they do exactly that. they lay out almost what could be a defense for the SPLC, which is to say one example was one of these field agents going in and secretly securing a number of the internal documents from this agency and then bringing it back.

And the SPLC then using it to argue and write a number of debriefs on how this institution works and airing all of this horrible nature of this organization to the public. I suspect, given your argument, I think it's a good one, which is SPLC may say, yeah, that was dismantling, right? was airing, put shining light on some of how these organizations operate. And if that falls, then that's the underlying kind of predicate charge related to this separate money laundering charge later, this concealment argument. And if those fall, then it leaves what may be one of the stronger parts in the indictment, which is the false statements charge to this crediting or loan institution. And even that faces some weakness.

There was a recent Supreme Court opinion that clarified that it has to be. false statements. It can't be misleading statements under this statute, Section 1014. And so the SPLC may point to that and say, look, the forms that we submitted to the bank were not false, right? They may have been misleading. Maybe they concede that. Maybe they don't, but they weren't false. And also, if I could just one, also in that same in 1014 in that bank statute, it needs, the false statement needs to be submitted for the purpose of influencing the bank. And Is that met here? I'm not so sure.

Well, I'm not even sure it's alleged. I don't actually see an element, like part of an allegation in that chart. I was looking through it today to see, like, is that even alleged to say, you know, what did they, what was the purpose of submitting that? What did they gain from the bank to do that? I'm not sure it's even in the indictment. Although that's presumably curable. But with a replete in it. All right.

This is at the very worst a petty conspiracy. Anna Bauer, I want to talk to you about a much grander conspiracy, one that can take us all the way from the 2016 election right up to the present. We're talking about and stop along the way for a false statement from John Brennan to Congress, talking, of course, about the grand conspiracy. It's been a big week for the grand. conspiracy. We had witness subpoenas in the Brennan matter submitted, then withdrawn. We had the whole thing moved to Washington. Nobody quite could figure out what it was doing in Florida. And then we have a new prosecutor who's been just as neutral and fair-minded on the subject of this as you could possibly want. So bring us up to speed on the grandeur of the grand conspiracy.

Yeah, there's a lot going on in Grand Conspiracy world, Ben. And I'm going to go really quickly through this because we do have so much to get through. But I hope that we'll have more time to talk about it next week. Hopefully, and Molly and I have a forthcoming piece on it that people should read when that comes out. But so just to catch everyone up, because I do have a little bit of whiplash. There's been so many developments in the Grand Conspiracy. case. Keep in mind, this was the case that we were being told for months that there was reporting, you know, that this was being, a grand jury was being operated out of the Southern

District of Florida, specifically in Fort Pierce. We learned first that there was a prosecutor, Maria Long, who's a career prosecutor who had been overseeing the Brennan aspect of this case that relates to alleged lying to Congress, that over kind of having expressed some doubts about moving forward with the case, she was removed from the prosecution. Then, you know, we have news that there are these subpoenas

that go out over the weekend, and it's kind of unclear exactly what these subpoenas mean because there are grand jury subpoenas to show for people who are alleged cooperating witnesses, query what that means, but putting a pin in that for a minute, there are these grand jury subpoenas

to show up in Washington, D.C., whereas we'd heard before that, you know, this was all kind of coming out of Fort Pierce or Miami. So it seemed like there were some developments there. Monday rolls around, and Joe D. Geno, or excuse me, DeGeneva, is that correct? DeGeneva, the former U.S. attorney for the District of Columbia, you know, 81 years old,

a long, long time proponent of the grand conspiracy theory has, for the better part of a decade, been out there, you know, promoting this conspiracy theory that he has now been, appointed to prosecute. And in the course of doing so, has also, you know, seemed to assume the guilt of the people that he is charged with investigating. He has, you know, demonized and maligned them

in very personal terms. Brennan himself, he is called, you know, a lunatic, a madman, things of that nature, a traitor. But he is then appointed to kind of oversee this prosecution. And as soon as he gets into his new position, there's news that those subpoenas that went out for people to appear before Grand jury in Washington, D.C., are withdrawn. So we don't really know what that means. Is it because DeGeneva, you know, is taking the reins now?

Or, you know, is it just that they're rethinking their strategy here? There was some reporting that instead of putting people in front of a grand jury, they want the witnesses to just go ahead with some voluntary interviews first. So it all is unclear exactly what this mess means, Ben. But it does seem like now that Mr. DeGeneva is in position as the prosecutor, things might move much more quickly than we previously expected.

And it's grand, right? it's grand but also this this part what's the grand conspiracy it's unclear if different parts are going to move like the brittan aspect of it might move more quickly than the grand broad conspiracy that they really envision this case ultimately becoming so this is maybe developments in just a portion of the grand conspiracy case, but ultimately they seem to be hoping that it will become as grand as they've imagined. All right. Moving on to what's going to become a new feature of trials and tribulations, which is gratuities for the undeserving. This week's contestant is Carter Page. Now, Carter Page is, I got to say, less undeserving than a lot of people.

who were getting gratuities from this Justice Department, because he was the subject of a gross abuse of the FISA process, or at least a gross failure of the FISA process. That said, I did not expect him to recover, much less to recover at this magnitude. Roger, tell us about the Carter Pidge settlement. Yeah, he's getting 1.25 million according to Politico, and maybe others, which is the exact same number that Mike Flynn got. It seems to be the going rate. He was, yeah, I think that's what we should take away from this. he was a campaign advisor back in 2016 and came under he did have these four FISA warrants that were issued and as you said the

inspector general was very critical of the errors involved inaccuracies in those warrant applications He sued in 2020. He sued actually like eight defendants, a lot of individuals like James Comey and McCabe, but also sued the United States under the Federal Tort Claims Act and also under the Patriot Act. and his claims were thrown out at the district court level by Dabney Friedrich, who is a Trump appointee, for failure to state a claim, and then also time-barred statute of limitations problem. That was affirmed by the D.C. Circuit, and that was a two-to-one ruling, although even the dissenters. Henderson agreed that you would need to dismiss the suit. She disagreed about how you got there. But again, basically, failure to state a claim and time barred. He appealed to the Supreme Court. And then just this week, when the government filed its brief, it said, we've settled the claim for $1.25 million, which is, I think, a pretty good result for him.

and especially, I don't really know the Patriot Act civil provisions. The FDCA is pretty stingy. You don't get punitive damages. You don't get any pretrial interest, I mean, prejudgment interest. So 1.25 is pretty good under any circumstances. And when you've lost at both levels below, I think it's very good. So I think he was wise to take the offer. Have we lost Ben?

I think we have for the moment. Let's see. Well, maybe we'll plunge forward while he's trying to rejoin us. I think the next thing might be for me. Oh, no, is it? Yeah, I think we have what's going on in the January 6th cases on appeal. Anyone can stop me if you would like to, but otherwise I'll plan. forward. As you know, you must have heard the government moved to vacate convictions in all of the

remaining January 6th cases, the 12 seditious conspiracy cases left. Not all of those were convictions, I should say, but they were charged as seditious conspiracies. And after it moved to dismiss, Jamie Raskin has filed a brief trying to urging the D.C. Circuit not to just automatically do it, but rather to appoint an amicus and think about this in an adversarial fashion. And he's actually filed a couple briefs to explain that he's not, he doesn't want himself to be the amicus. He wants them to appoint an amicus who would understand. understand the facts and be more independent. And it relies largely on precedents like United States v. Flynn and United States versus

Péter Magyar Adams, where, you know, where Miki were appointed by the judge. Those were not exact identical situations. Those were 48A motions. Yeah. And here we're sort of, those are before a judgment of conviction. Now we're past the judgment of conviction. The other case he cited was one I was unfamiliar with Young versus United States from 1942. It involves a doctor. It was a situation where he was convicted under a statute and for some reason the government changed its mind and decided that, the way it had charged him was reversible error, and it conceded error. And basically, the Supreme Court said, well, we still have to go through some analysis ourselves. We can't just accept that. And I think the

language includes the public interest that a result be reached, which promotes a well-ordered society, is foremost in every criminal proceeding. That interest is entrusted. to our consideration and protection as well as that of enforcing, as well as that of the enforcing officers. Furthermore, our judgment, well, I think that's the key part. Since he filed that, there has been some opposition from Joe Andy Biggs' counsel, from Roberto Menuda's counsel, Zach Riel, pro se, and, So we'll have to, we're waiting for the D.C. Circuit to decide now.

Yeah, Roger, I thought that was one of the strongest points that Jamie Raskin made, which was to say that these are different in posture because of the post-conviction, post-sentencing realm. I'd be curious if the D.C. Circuit takes that up and at least wants to hear, because in Adams they had Paul Clement and they had Judge Gleason and Flynn. So if they got a smart person to get in there and make this argument that these are just different than any other use of 48A or this motion to vacate, I'd be curious to see how it plays out. And then if the D.C. Circuit doesn't, I'd be curious if Judge Meda does or Judge Kelly does on their own when it gets to the 48A decision. All right. Eric, talk about the Presidential Records Act.

Thanks. So under the Presidential Records Act, some presidential materials become subject to FOIA five years after the end of the president's term. So two FOIA requesters submitted a request for records, all records recovered by the National Archives from Trump during his, between 2021 and 2024. And what they're trying to get, basically, is records were seized during the Mar-a-Lago raid that had been given back to Trump and that either he then gave back to them or that the FBI turned over to narrow. Now, soon after they filed that request, OLC issued an opinion saying that the Presidential Records Act is unconstitutional in its entirety. And the requesters right around the time they filed suit because the FOIA request is now being applied with. FOIA, which doesn't necessarily mean a skullduggery, but FOIA basically allows you to file suit very early on after filing a FOIA request if the request has not been fulfilled.

And the requester also said that in light of the OLC opinion, they might file a motion instructing the National Archives to preserve all records, including the anything return for Mar-Lago, which they say, even if it's not in your physical custody, it's in your legal custody. So the judge, Judge Trong in Maryland, an Obama appointee, instructs NARA to say, to answer whether they or not they have any records that were returned from Mara Lago. And so Nara then says two things that are interesting response. One, they say they have no records from Mara Lago, meaning perhaps stuff. surprisingly, that Trump has, is still keeping for himself these records that belong to the National Archives.

One might say hoarding. You might say hoarding. Then they say another thing, which is kind of interesting, which is basically that they're still abiding by the Presidential Records Act in other respects in terms of processing, in terms of processing presidential records, which is a little bit odd, given that, DOJ has said that the Presidential Records Act is completely unconstitutional. Right. So should we read NARA as saying we are behaving unconstitutionally under binding

executive branch legal interpretation? Are they acting unconscious? Yeah, sure. You could say that because the only thing that empowers them to be disclosing these records, for one thing, is the Presidential Records Act. All right. Meanwhile, one good piece of news in the Justice Department politicization department, which is that the Justice Department has capitulated and dropped the Federal Reserve Jerome Powell investigation. Roger, do we interpret this as that they woke up in the morning and said,

we repent, we see the error of our ways, or might this be an effort to get the Fed chairman nomination confirmed? Yeah, I think the latter is a possibility. The context is this. The term, Jerome Powell's term, as chair, ends May 15th, so that's about three weeks. His term as a member of the board of governors, alas, however, until January 31st of 2028. Most chairs don't stay on after their terms, but he can.

And the way I understand it, and this is far from any, I have no expertise, but all of the governors, have votes on the Open Markets Committee, which is the committee that sets, that in effect, sets interest rates. I think everyone concedes that the chair has more weight than anyone else for some reason. I don't understand. But anyway, he would still be on if he wants to be. And so obviously, Kevin Warsh had his confirmation hearing this week, but Thom Tillis has been saying that he will not let the nomination go forward unless the inquiry is dropped. I think John Thune was supporting Thom Tillis on this.

And so in that context, Piro gave sort of a complex statement today, which was, I think, first reported. Catherine Falders broke this a few minutes before Piero put out her own tweet. This morning, the Inspector General for the Federal Reserve has been asked to scrutinize the building cost overruns in the billions of dollars that have been borne by taxpayers. And I'll just note, Jerome Powell has been asking for the IG to investigate this. And the IG may have started, and I'm not sure about it if he had started before. But anyway, he had asked for this. And then she continues, I expect a comprehensive report in short order and I'm confident the outcome will assist in resolving once or for all the questions that led to, led this office to issue subpoenas.

Accordingly, I have directed my office to close the investigation. Note well, however, that I will not hesitate to restart a criminal investigation should the facts warrant doing so. You know, I guess there is nothing literally to stop her after Thom Tillis lets the thing through to someday restart this if she wanted to. I don't know where this leaves Jerome Powell in terms of whether he wants to quit or leave or whether he wants to stay on while they to see whether they're really going to start investigating him again. All right. Finally, in this area, before leaving this area, let's talk about one area where the Justice Department has behaved with admirable normality. There's an indictment, Troy, of a soldier who was involved both in the Maduro capture and in some, you know, online betting. What do we know about this case and what do you make of it?

So this is a pretty solid indictment. This strikes me as in one way a pretty normal abuse of someone's position of trust and confidential use of their information in insider betting. So you look at that and you think that's a pretty normal charge. What makes this case, I think, really interesting is not for the sake that it's, you know, fact and law and seems like a pretty valid indictment, which is good, but also that it is around this kind of this kind of polymarket area or Kalshi area of betting, which is not run by the Securities Exchange Commission, but run by the Commodity Futures Trading Commission. And that is about, I think, an eighth of the staff and budget of the SEC, yet groups like Kaushi have sometimes $2 billion worth of wages in a week. And so there's a real divergent kind of experience going on in this future's prediction market, but the low enforcement and regulatory agency focus. And I think that we're going to slowly see a catch up here as Congress starts to realize the day. dangers. And those dangers played out here, I think, in the national security space. So in this case,

Gannon Ken Van Dyke was an Army Special Forces sergeant who allegedly placed 13 bets in these binary event markets, which is another way of saying, you know, these futures market betting areas, they'll place a bet that says a yes or no on something occurring by certain date. And in this case, it revolved around United States invading Venezuela and doing something with Maduro or Maduro losing power by a certain date. I think it was January 31st, 26. And the allegation here is that this Army Special Forces Sergeant was heavily involved in the planning and build up to the United States activity in Venezuela on January 3rd of this year. And that the 13 bets led all the way up to right on January 2nd when he placed another bet.

made over $400,000 in profit on these bets with his inside information and classified access. And now that what's remarkable is NPR reported on this by January 5th, they were reporting on this particular set of bets. And experts were getting on and saying it was hard to know whether or not we'd be able to prove whether this is insider information looking backwards. What's remarkable about this case is not only is DOJ focused on enforcing against these bets and the use of inside information, but it also shows. shows these polymarket and Kaushi may be storing the information and referring it to DOJ,

taking the information they're seeing, creating some metric to determine whether or not someone's using insider information and referring to DOJ. That ought to send a shockwave across users, right, in government actors. And then I think a bigger picture concern here is how are foreign governments using these markets to read what the U.S. may do, right? On one hand, foreign actors may be seeing this as prediction markets. And if they assume government actors are placing bets, then can they use that for intelligence value? If it's right, and if it's wrong, do they act in a way that then creates this self-serving prophecy? And then we start to use it as intelligence. I think it's wrought with national security concerns, especially if we can't get

a clamp on people using their inside information to bet in this area. Yeah. All right. Roger, yes or no and for how much money? Will the D.C. Circuit affirm Randy Moss?

Any sum of money you want to vet because it just came down. Yes, it will. Although, I mean, if there's rehearing, I don't know. But this was an important case brought by the ACLU, our friend Lee Gelern. This is RISIS versus Mullen. It's called Refugee and Immigrant Center for Education and Legal Services versus Mullen. And it's an interesting set of facts where Trump was really trying to eliminate enormous second.

of the asylum law as it exists. So, and Moss enjoined or most of it or enjoined, he did enjoin, but he also used that APA procedure called vacator, where you vacate what the administrative agency has done. So what Trump had done was this. You know, Congress has plenary power over immigration, and it enacted this comprehensive scheme, mainly in 1952, the Immigration Nationality Act, has been, you know, obviously updated. It has two main ways of removing people. There's a regular way, and there's an expedited removal procedure, both to varying degrees, particularly. the right to seek asylum, the right to seek withholding of removal because you fear persecution,

and the right to seek withholding of removal because of torture under the cap provision, the Catt Treaty, the Convention Against Torture. So what Trump did on January, on inauguration day, was he was sort of two, parts. He widely suspended entry into the country, which he did have authority to do. But then he said, anyone who violates my suspension will now be subject to new removal procedures that I invented in my proclamation. And he had two of those, and which were exceedingly. expedited and did not afford the same protections, especially as to asylum. Obviously, I'm trying to simplify.

And it's more than trying to simplify. It's a hundred and twenty-one pages, and I haven't slogged through it all. So I'm, I'm, some, it's, this is a sort of a proximate. But anyway, Judge Moss enjoyed this thing. At least, and the D.C. Circuit, two to one, it's Judge Childs, who wrote the 57-page opinion, joined by Pillar, I think. And then Walker wrote his own opinion, 64 pages, which concurs in part, but dissents in part. I mean, there are parts of it that, and actually Judge Katsis at the preliminary stage had done the same thing. They even, they also concede that to the extent that he tries to eliminate some of the mandatory protections, even they say that it's illegal.

The asylum, the two Trump judges, Katzis earlier, who's not on this panel and Walker this time around, they take the position that asylum is discretionary and Trump can sort of, wipe it out. But that is, the majority says he can't. And it's pretty much a sweeping victory for the ACLU. And I'm sure we will have a very prompt appeal. I don't know if it will go, obviously, if it'll be rehearing and banker straight to the Supreme Court. I think this is a straight to the Supreme Court situation. If you, if you're getting a partial concurrence from Walker, I don't think you have much chance at the en banc DC Circuit. Speaking of people who don't have a chance before the en banc D.C. Circuit, there is an ICE

officer who is now a fugitive from because of this nationwide warrant that's been sent out for him. And I want to know, is he still doing his job as an ICE officer? We, I don't know. He's now, you know, this warrant for his arrest went out eight days ago. And as far as I know, nothing has progressed, the warrant did list an address for him in Maryland, and it said it was a nationwide warrant. I don't know what that means. Maybe Troy does. But nothing has happened. So it's sort of, I don't know if the federal government is helping, and if it is helping, which side it's helping. I just want to know, when you have a nationwide warrant for your arrest, for your behavior,

as an ICE officer, do you get suspended from ice while they're sorting that out? Or do you kind of keep wandering around arresting people? Yeah, I don't know. And in fairness, I haven't asked the helpful DHS spokesperson, but I'll have to try that. All right. Speaking of odd things that happened this week involving ICE, Anna, I have never really heard of the government saying to a judge, please rule by this date. And if you don't, we're going to interpret that as you're denying our motion and we're going to appeal.

And then when the judge says, what planet are you on actually going ahead and doing that? But that's what the government has done in the Kilmara-Breggo-Garcia case. They gave her a deadline. Usually it's the other way around. The judge gives the litigant a deadline for filing something. But here they said, you know, grant our motion to dissolve this so that we can remove this guy to Liberia where he doesn't want to go instead of Costa Rica where he does want to go and wants to have him. or else we're going to treat, do it by April 17th, or we're going to treat it as a denial and we're going to take you up to the Fourth Circuit.

And she responds, I'm the judge here. I'll rule when I'm good and ready to rule. And now they have interpreted that as a denial and gone to the Fourth Circuit. So my question is, is that the way the system is supposed to work? I have never seen it work like that. I will add in addition to the explanation you just gave that makes it even stranger is that there was a hearing set for April 28th, Ben, in which she was going. Oh, yeah, forgot that part.

So it was moving towards, you know, there were things that were progressing in terms of the judge resolving some of these outstanding motions, including the motion to dissolve. and they just went ahead and filed a notice of appeal and saying that, you know, they've taken this non-answer from the judge as a constructive denial. As a result of this, keep in mind, one of the other outstanding issues in this case is that Abrago has a motion for discovery that was ongoing. So because they've now appealed the motion to disqual, the injunction that is prohibiting the government from removing Abrago from the country,

it typically would divest the court of jurisdiction, right? Like the district court, once there's notice of appeal, kind of things, you know, are out of their hands. But the plaintiff, Abrago, his counsel, is now arguing that it was so frivolous this notice of a notice of appeal for the constructive denial, that the court can still enter an indicative ruling on this motion for discovery. So, you know, we'll see what happens.

Oh, yes, what? So you could have concurrent proceedings at the Fourth Circuit and at the district court, which is like really supposed to not happen. Yeah, potentially. So what's happened now? is that Judge Siney's has set a briefing schedule for a reply or response from the government about this motion for an indicative ruling on the discovery matter. And then she went ahead and set another hearing date.

She pushed back this April 28th hearing date. And I believe it's May, something like May 11th, sometime in early May that she's going to hold a or plans to hold a, you know, a hearing. whether that is a hearing that was on the subjects of the original schedule or something else. It's not entirely clear. We'll see. But I've never seen anything like this. I'm curious, Roger, what you make of it, because my thinking is like, how does this potentially relate to the criminal case and happenings there? Keep in mind that the judge in the criminal case, Judge Dan Crenshaw, is preparing to, you. to potentially issue a ruling on the selective or vindictive prosecution motion because we had

that evidentiary hearing. There have been briefs that have been filed on the matter. And so I'm kind of wondering, is it possible that there's this kind of rush to get things in the civil case sorted out so that they can potentially go ahead and remove him to Liberia? I mean, if the criminal case goes out the window, I'm not really sure. This is maybe my grand conspiracy, but I'm curious, Roger, what your thoughts are on that. Those are all good speculations as far as I'm concerned. It wasn't clear to me why there was this huge rush.

They were already going to appeal in earlier ruling, and they said, well, they wanted to appeal both at the same time. well, you know, you could have waited and then moved to consolidate when the time came. So that doesn't really explain anything. And also, what's the big rush when you're, are you really going to move him in sort of violation of Judge Dan Crenshaw's expectations?

There's a lot of factors, like you said, and I can't. figure it out, I don't know what's, what's, what, what, what, what, what, what, what, what, what, what, what, what, what, what, what, what, what, a, uh, uh, function for prosecutors. This is, this is, this is a new tool for me that I never got to use. So I think it's, I, I actually think it's a windfall for defense lawyers. Because I think what you do is you file a motion to dismiss and then you say, and if you don't rule by such and such a date, we're skipping the trial and just going direct. And just going. to the Court of Appeals, and then you file a notice of appeal, and, you know, they got to stop. All right.

Another, just briefly, it didn't, you know, when they said this thing to her, she said, and she wrote it in her order, too. I mean, you guys have been stalling and stalling and stalling and stalling and suddenly you come in here and say, rule by April 17th were appealing, and they didn't push back. I thought it was a dead issue. And then she went ahead and put a hearing not too far ahead like Monday. And, and then boom, they appeal. It's very strange. And there was a whole hearing status conference that we had just recently where, you know, the government made clear they wanted to do everything, appeal everything at once. So it's all just very, it's weird. Yeah.

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California passed a law saying that, aimed basically at ICE, saying that the Fed's federal law enforcement, and can't wear masks. And two things. One, you can't wear masks. And two, you got to display your name or badge number. Well, that sounds entirely reasonable. But I don't think they should be naming that no vigilantes. I think, you know, vigilanteism has a place in life.

Just not for ICE. There was another second name also. I'm blanking out and I now. But so at any rate, the district court, in joining the mask, the no mask requirement as violation of the supremacy clause because it basically only applied to the fed that did not apply to state law enforcement. But it allowed the identification requirement to go through because the feds had not shown that its own current policy was essential to federal law enforcement operations.

So the feds appeal to the Ninth Circuit seeking an injunction pending appeal, and they win in a panel of two Trump judges and one Obama judge. And the panel says that the Supremacy Clause means, and as it does, that you can't discriminate against the federal government if you're a state, nor can you regulate the federal government directly even if you're regulating states in the same manner. And it doesn't matter whether the regulated activities are essential to the federal government or how much the regulation interferes with federal operations or not. And they pointed out, and this is a key distinction between efforts to basically to prosecute ICE officers for state law violations. They point out that this does not regulate conduct that any ordinary. citizen could perform. Rather, it applies exclusively to law enforcement agencies and their officers. It's a regulation of what, it's not, it's regulation of, you know, what cops have to do. And therefore, it targets the federal, it targets government officers and therefore it also

targets federal government officers. And thereby directly, the act thus directly regulates conducts reserve to sovereigns. And that's something that the state, cannot do to the federal government. All right. Roger, I remember the case of Mr. Isihara, who was held in contempt for an hour and a half or something, and then his fine was remitted and everything was fine, but they went to the Eighth Circuit anyway. And I think on this very show, I made a snitty remark about how there was no way this appeal wouldn't be dismissed because, you know, there's no controversy between the parties anymore. And it looks like I was wrong. Yeah.

This is the case that of Rigaberto Soto Jimenez, and we wrote about it in on. lawfare. This was when Judge Provenzino held Mr. Isihara a special AUSA. It was coming over from being a JAG officer. And in civil contempt, because of a string of violations of orders, all because they're overworked. nobody really contests that that's the reason, but rather serious violations. And so she finally said, I'm going to fine you $250 civil contempt unless you, unless your client gets back his property, his identifications, passport, and things like this. and from ice. And they got it back by the necessary time,

and she purged the contempt, and he never had to pay a dime. And like you said, Dan Rosen, who had some time on his hands, decided to appeal. And a pro bono appellate lawyer, Sean Marota, took Riga,

Sorach Jimenez's, case, he's with Hogan Lovels, and did make a very, what seemed to be, a very strong argument that there was no standing or there was moot, that it was moot. Anyway, there was no case or controversy. It seemed to have a lot of precedence from the Eighth Circuit on point. U.S. Attorney Dan Rosen responded, said, well, he's, he has a reputational, damage. And in a one sentence order, the Eighth Circuit denied the motion. They did take up Maroda on his backup proposal, which was to appoint counsel to oppose Rosen's appeal, because Sotomine Jimenez has no, you know, he can't afford this. He has no, he never even asked for the civil

contempt. So, and, and so they did that, and they appointed a sort of big deal, Minnesota litigator, Jeffrey Justman of a figure drinker. And so it's going forward. I don't really get, and so he will brief, he will write an amicus brief. I don't really get whether the mootness issue is, or standing is still an issue or not, because it was just a one-line. order, so maybe it will be resisted. I do not understand at all how that case cannot be moot. It's like a law school definition in class of what mootness is. But okay.

Eric, I confess this one took me by surprise. I saw it on the agenda, and I really have no idea what it's a reference to. district court holding that Trump administration improperly coerced Facebook and Apple to remove ICE tracking apps in violation of the First Amendment. What is this case? What district court are we talking about? And how did I miss this? You're a very busy man, Ben. This is the northern district of Illinois before Judge Jorge Olonso, who I believe is an Obama appointee. this was a big issue during the Biden administration when it was felt that

the federal government basically jawboning private entities, especially in the tech space, was the worst thing in the world. Now, apparently, the federal government is singing a bit of a different tune, or perhaps the same tune, I should say the conservatives

are singing a different tune. The plaintiffs A woman who runs a Facebook group That called Ice Sighting's Chicago Land And Which is basically a place for people to get on and say Hey I saw ice conducting operation So-and-so place in Chicago area

And another plaintiff runs a phone app An Apple app called Eyes Up which basically is kind of the same type of thing. You can report ICE activity, I think I believe also in the Chicago area. And DOJ, I think Laura Lumer, of all people, brought these things to the attention of DOJ and DHS. And DOJ went to Facebook, went to Apple and said, hey, you guys got to take this stuff down.

This is harming us. and they did so rather quickly. And the plaintiff sued. And the judge enjoined defendants from DHS and DOJ from doing it again, basically, should it come up again. And said basically like, look, it's pretty clear what happened here in that there's evidence that first these apps, the Facebook group was created and the app went into the Apple's app store and the companies had no problems with that, even though they knew full well what was being done. But then DOJ and DHS complained and Facebook and Apple

took them down very quickly. Took down the app and the Facebook group very quickly. And then in case there's any doubt about the causation here, Pam Bondi and Christy Kristi Noem bragged about it and said today, you know, at our demand, Facebook and Apple acted. And basically, this was in essence a much tighter case than the case against the Biden administration that the Supreme Court decided a couple of terms ago, the Murthy case, because causation was really very easy to find. And so this does not get the apps back because there's the Facebook and in order to get back the Facebook group

because those companies were not actual defendants in the suit. it certainly makes it more likely that they will in the future. All right. Roger, is the ballroom on or off this week? We're on hold again. An administrative stay is in effect, pausing Judge Leon's injunction, but against. construction, but it won't last very long. So when we last left you, the majority of the D.C. Circuit panel that's now got the case,

Millett, Rao, and Garcia are the panel. The majority wanted Judge Leon to clarify his injunction, what can go forward and what can't, in terms of because he said basically you need to stop construction on the ballroom, but you can do things that are necessary for safety and security. And Trump was saying, okay, then we can do everything because it's one integrated whole and everything's absolutely essential to my security. Right. And the ballroom is really just an entryway to a deep underground bunker,

which is necessary for national security. It helps provide the anti-drone apparatus and the anti-missile systems that protect the bunker beneath. And so we are waiting now. We have that new order, which is frankly none too clear where the line is drawn. I mean, basically it's at the ground level. Below ground you can do. Yeah, anything below ground and anything above you can't. It's a little more complicated than that.

So, and now we'll go to, this will be, I guess, the ruling on whether his injunction can stay in effect or begin to come into effect finally, pending appeal. And we know that Rao is against it. She has already said that she supports all of Trump's arguments, that the plaintiff, that the petitioners have no standing, that Congress has approved this, which is a really a stretch, and that there's enormous irreparable harm threatened from relating to Trump's security. So, but we'll have to see what the other two do. All right. Well, Naomi Rao is always a little bit shy about expressing her opinion. So, Eric, it's been a big week for Kash Patel in libel suits. I believe on the same day, he lost one and filed another.

tell us about his suit against Frank Fuglusey and his new suit against the Atlantic. Yeah, we'll take those in I think the order in which they occurred. I think that he sued the Atlantic. It might have been the same day. It might have been a day before, but it was definitely at some moment before he lost a suit against Frank Fuglusey. So the Atlantic, as I assume most of our listeners know, published an article about Kash Patel, I guess at the beginning of this week, it feels like ages ago, that reporting that he basically is not doing a great job, sometimes had trouble being roused because he had a big night of partying the night before, that he had locked himself out of his computer one day and assumed that he was being fired as a result, which is I...

Who among us hasn't locked ourselves out of our computers and assumed it was some malevolent force that was after us? Who among us? I mean, I got to say, I'm sympathetic with cash on very few things, but as somebody who spent most of my time, locked out of of one or more of my computers, unable to remember the last five passwords I've used. I got to say this one hits close to home. Unfortunately, that that one is painful because most of 2025, if my PIV card didn't let me in a building, I figured it meant I had been fired by the administration. Yeah, I got to say, like, Kash Patel's a bad guy and everything, but that one, when the

Atlantic reported that, I was like. Like, there but for the grace of God, go I. Sorry, Eric, we interrupted you. Oh, not all, not all. So Kash Patel, as one does, when one doesn't like an article, he decided to file suit.

And I think it's fair to say that this lawsuit is not necessarily aimed at a court, but rather aimed at, one, discouraging future bad press, and two, show. showing to his boss that he fights and that he believes that all these charges are against some are nonsense. In order to win a defamation suit, you need to show actual malice, which is a term of art that is not mean what those words mean in the normal English language, but rather means that you either had to have known that the article was false or to have acted with reckless disregard for the truth, which means that you kind of.

to suspect that the article is false or that you did not act in a way that are reasonably prudent, sorry, that you must have, in fact, entertained serious doubts about the story before publishing it. And rather, rather, Kash Patel in his, you know, says, well, you know, these, the Atlantic should have known because they didn't give us enough time to respond. They didn't follow these leads, that we're showing the article's false, blah, blah, blah, all the stuff that at most shows, would show recklessness if true on the part of the Atlantic, but that does not suffice to prove actual malice, which is the standard in defamation suit brought by a public figure such as Kash Patel.

All right. Well, no, no. Don't forget Frank Fitzhlusi. Oh, sorry. I forgot about France. Phyllis. Yeah. So, you know, God opens the door and closes another.

Kash Patel, the same layer that day, or maybe the next day, he lost, and earlier, he lost a suit that he had filed against Frank Figuisi, who's a former FBI assistant director, who is now, among other things, I assume, he's a talking head on what was then known as MSNBC. And he, surprisingly or not, surprisingly or not, involved the same topic. He said at some point last year on the Morning Joe show, there was asked about Kash Patel, and he said, yeah, well, reportedly he's been visible at nightclubs far more than he has been on the seventh floor of the Hoover building. And Kash Patel sued him for that. And he's saying that that line about being visible, nightclubs, far more than he's been on the seventh floor of the Hoover building is defamatory.

Fagluse, in response, argued, and the district court agreed that this was a sarcastic and hyperbolic remark that cannot be defamatory. Apparently under the suit is filed in Texas and apparently under Texas law, that's a question for the court to determine whether something is rhetorical hyperbole. and the test is what a reasonable person would believe as a question of law for the court's inside. And the court concluded that a person of ordinary intelligence would have concluded that Thel Lucie was being hyperbolic when he said that he's been visible at nightclubs far more than he's been on the seventh floor of the Hoot Building. So Kash Patel loses.

All right, LT. Would a reasonable person regarded as hyperbolic if he's been a reasonable person regarded as hyperbolic if, I said that the Second Circuit had issued a damaging opinion in the counterterrorism space that would never have issued had the President of the United States not been Donald Trump. Would Texas law protect me and say that this cannot be a defamatory statement?

No, because I don't want that to be hyperbottable. They would say it's true and it's absolutely a protected statement because truth is a defense against libel. What did the Second Circuit do in this case? Yeah, so I'll stay somewhat short because I hope to have a piece come out on this because it warrants it. The Second Circuit, so let's go back to 2017. Akaya Ola is a defendant individual in New York who left his apartment in Brooklyn. after a long period of consuming ISIS videos and information and propaganda and rode the train to Times Square station and detonated a pipe bomb that he had strapped to himself and attached

shrapnel in and injured a number of folks caused a lot of damage and ended up. There was quite a bit more. I don't want to belittle here what the victims went through. There was a lot of cases of PTSD folks losing their jaws because they can't ride trains anymore after this incident, and it was quite horrible. And the appeal argument happened in, I believe, 2022. After a trial, he had been convicted of a number of statutes, including one, which is near and dear to our hearts at lawfare, which is material support under 18 U.S.E. 2339B. And the support was allegedly to ISIS. He was sentenced to life, and the Second Circuit now this week

issued an opinion that upholds the other convictions, affirms the sentence of life after those other convictions, but dismisses count one, the material support to a foreign terrorist organization, that being ISIS. And the analysis really revolves around one phrase that exists in 2339BH, which separates out who can and cannot be convicted under this statute as providing personnel. And in layman's terms, it basically comes down to, was he under the direction or control of a far and terrorist organization? The majority says no, because he acted on his own and was not in direct communication with ISIS. The dissent, pretty fiery, says, this is wrong. And there is direction or control.

And here was direction that ISIS put out videos saying, go do this thing, conduct these attacks. He did these things after consuming those videos and in scribes. slogans on his items and then issuing an ISIS phrase in a social media post on the way to the attack. And so the dissent says, of course, that's under the direction of ISIS. And to take a step back now, why does this matter? It matters in part because now if we have a lone wolf, so-called lone wolf attack, which I've always kind of disagreed with a little bit because especially these ISIS attacks

when they consume all of this information and then act on that direction. But with these lone wolf attacks, it's not questionable if there's Second Circuit precedent sticks that says these attacks can't be charged as 2339B because they couldn't possibly have been under the direction or control of ISIS. And so I think the government may petition for en banc. I think under the local rules in Second Circuit, they have 45 days to do so. I'd be really curious to see what happens here. All right. One last matter, Eric, we have suits by and against the Justice Department over its efforts to collect voter roll data. A new suit by the department in Michigan and an ACLU suit about the general practice.

We've talked about a bunch of these state-specific cases on past shows. what, if anything, is new about Michigan and what is the ACLU arguing? So the Michigan one is retrospective. It's different from the state-by-state suits that we've talked about earlier. It is, in fact, more like the action in Fulton County, where they seized ballots from the 2020, relating to the 2020, presidential election. So it's not like the Rhode Island and Oregon and Massachusetts future give us your voter rolls cases. Correct. The ACLU suit is. I see. Okay. Sorry.

I misunderstood. No no worse. So they again, it's not entirely clear what's going on here. I think it's all part of the general effort of the Department of Justice to delegitimize the electoral process and help deal with whatever demons the president has in his head. They are seeking the ballots from 2024 in Wayne County, which I've been.

believe is basically Detroit. They point out evidence of various election fraud cases in recent years in Wayne County. And they point out that some civil lawsuit that was issued at the time, that was filed against them at the time. And they say, look, we're entitled to these things under Title III of the Civil Rights Act of 1960. And this is a A similar lawsuit was filed against Fulton County last, I believe, late last fall. It went nowhere, and I think it was still early, but I think it was destined to go nowhere. For the reason that, as Fulton County pointed out in a motion to dismiss, the Civil Rights Act of 1960 allows the Department of Justice to gain access in certain situations to, voter registration materials and other materials that are, quote, requisite to the act of voting.

And it seems hard to see how ballots fall into that category. They're just a very different thing. And so that is probably why the Department of Justice tried to get a search warrant in Fulham County and eventually succeeded and obtained ballots from 2020 that way. It's really not all clear why Wayne County is in the crosshairs right now of the Department of Justice besides the fact that it's very heavily democratic jurisdiction in a very important state. And that's probably enough. So they sent a letter to Wayne County. I think Wayne County has already told them to give them the back of the hand and a loss. civil lawsuit will probably follow.

All right. Let's quickly talk about the ACLU case before we go to audience questions. Yeah. So the ACLU is suing to block basically all at once DOJ's effort to collect and use state voter rolls. And this is kind of a, they're basically saying it exceeds the power of DOJ. to obtain such things, given that these state voter rolls are compiled and maintain and pruned at the state level. And they're saying, they're pointing out, another thing that has kind of come up in the state-by-state litigation, they're saying it basically violates the Privacy Act the way that the states are, a DOJ is going about it.

This is a little bit risky doing it this way because an adverse ruling would basically, well, I shouldn't say that. An adverse ruling on certain grounds might lead to DOJ winning much more quickly than would otherwise on these issues. But what it does attempting, it is attempting to do is defeat DOJ, even in the areas where, where other states have agreed. All right. We have only two audience questions today, and one of them is kind of a repeat from last week.

First question on these settlements. I assume this is in reference to Carter Page this week and General Flynn last week. Does anyone have standing to intervene with the courts to argue against the settlement. And as we explained last week, the answer is almost certainly not. Generally, when two parties agree to settle a matter and drop a case, the courts regard that as a private matter between the two parties, and any time two parties don't want to litigate something, it's very unusual for the courts to force them to. The one exception to that is circumstances of class actions where the courts do review the question of whether the settlement is in the

public interest because it does purport to represent people who are not specifically parties. There are a few other sometimes antitrust settlements, of course, are reviewed. But generally speaking, if it's a matter, you know, Roger Parloff versus Ben Wittes and Roger's going to accept a check to drop his case, is very unusual for a court to get in the way of that. This next question is one that I... Sorry, go ahead. The proviso being that we may be getting into unprecedented situations like the IRS suit, the Trump IRS suit, where, you know, the side. of the conflict and the size of the sum could lead somebody to try to make some extraordinary intervention.

Or at least to ask some questions. Yeah. All right, this next question, I will just say I don't know the answer to it. Is it likely that U.S. v. Hernandez in the Fourth Circuit, a decision that ICE execution of an EOIR. order does not constitute a pending proceeding is going to shut down other 18 U.S.C. 1505 cases, especially Judge Hanna Dugan's case. So, of course, it won't directly affect Judge Dugan's case because she's in Wisconsin, which I believe is in the Seventh Circuit, not in the Fourth Circuit. So it doesn't control that. The question is, of course, whether the Fourth Circuit opinion will be

influential on the Seventh Circuit, or whether you could imagine the Supreme Court affirming that, and I just want to say I have not read U.S. v. Hernandez, and so I don't know how persuasive I find it, much less how persuasive anybody else is going to find it. I don't know if either of any of the three of you have further thoughts on the subject. haven't read it, but it sounds like I certainly should. Yeah, I have not read either. I do some quick Googling. I see that. I think just this week, Judge Dugan filed a motion to reconsider relying on that very decision. All right. We are going to leave it there, folks. Thanks to Eric Columbus, to Anna Bauer, to Roger Parloff, and to LT.

Edwards, whom we send off officially with this week's show. Troy has promised to remain involved with lawfare, and so we're going to keep the bitter tears light because we don't really acknowledge that anybody ever leaves, but he is starting a new job in which we wish him all the best. Folks, this podcast is part of Lawfair's live stream series, Lawfare Live, the trials and tribulations of the Trump administration. You can subscribe to Lawfare's YouTube page to receive an alert the next time we start trialing and tribulating. The Lawfare podcast is produced by the Lawfare Institute, and you can get ad-free versions of this and other lawfare podcasts by becoming a lawfare. material supporter. The Second Circuit has not, you know, made it illegal to be a material

supporter of lawfare. It's a virtue to be a material supporter of lawfare. You can do that at our website, lawfaremedia.org slash support. You also get access to special events and other contents available only to material supporters. This podcast is edited by Goat Rodeo. and our audio engineer, this episode was Anna Hickey, still is. Our theme music is, of course, performed by alibi music as always. Thanks for listening.

This podcast is part of Lawfair's live stream series, Lawfare Live, the trials of the Trump administration. to Lawfair's YouTube channel to receive an alert the next time we go live. The Lawfare podcast is produced by the Lawfare Institute. You can get ad-free versions of this and our other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org slash support. You'll also get access to special events

and other content available only to our supporters. The podcast is edited by Goat Rodeo, and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from Alibi Music. As always, thanks for listening.

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