transcript

Speaker 1:
[00:09] It is Friday, April 17th, 2026. It is four o'clock PM Washington, DC time, and you are watching Lawfare Live. I'm Benjamin Wittes, Editor-in-Chief of Lawfare, and I am here with a trio of Lawfare Senior Editors, Eric Columbus, Anna Bauer and Roger Parloff. And we've got a busy agenda this week. So let's get into it. Some of you may remember the name John Eastman, conservative law professor from Chapman University, I believe, wrote some wacky legal opinions, made a speech on January 6th, and now he has been disbarred. Next stop is Dancing with the Stars. Eric Columbus, give us the John Eastman update. What is, and can the president pardon him and get rid of his disbarment?

Speaker 2:
[01:22] The president cannot, for multiple reasons, the president cannot get rid of the disbarment. Pardon power is limited to offenses against the United States, which has been interpreted to mean crimes against the United States, crimes, federal crimes. And Eastman has not been convicted of a crime, and Aforshiori, he has not been convicted of a federal crime. So there's nothing the president can do. It would be like when Tiger Woods called, reportedly called the president after he flipped his SUV on a California road. It would be the same effect. So Eastman was, has been actually suspended since April 2024. And this just kind of makes it final.

Speaker 1:
[02:13] And this is California Bar, right?

Speaker 2:
[02:15] This is the California Bar. He, there is a trial, like an interminable trial, I believe in 2024. It was then upheld on appeal. There's something called the State Bar Court of California, which has its own court, a trial court, and then court of appeal. And then Eastman sought review by the California Supreme Court, which this week denied his petition for review. So to summarize the lower court, the State Bar Court of opinions, basically the conclusion is that Eastman lied in many ways. That's kind of the major conclusion.

Speaker 1:
[03:00] Lied to whom?

Speaker 2:
[03:02] To basically everyone. To courts, to his own client, president, the Trump campaign and including Trump himself. Lied to the American public in his speech on January 6th. Lied to Pence's top aide, Greg Jacob. Used misinformation and theories he didn't really believe in trying to persuade Pence that he had the power to overturn the results. Lied to the media in the podcast with Steve Bannon and in an article called in the Claremont Institute's online publication. Sure, I should say lied to the public in that. And these lies were basically about the existence of fraud in the 2020 election. Both wildly broadly staying that there was outcome determined of fraud in the election and also looking at specific making specific claims about things in specific states, which he did not have evidence of support and that he knew he did not have evidence of support because there's their emails and communications with other lawyers where he's basically asking for evidence at various points and no one's able to to give it to him. There's also a charge that he failed to support the laws of the United States, meaning that he violated 18 USC 371, which I don't believe she was ever indicted for for violating, but the bar alleges that he did in fact violate that. And Eastman, in addition to denying the charges, kind of mounted a half-hearted First Amendment defense, saying in some of these instances that he was acting as a private citizen, and that did not persuade the bar court at all. You may have a First Amendment right to spread misinformation as a private citizen, but it's much more limited when you're doing so as a lawyer, as a member of the bar and officer of the court.

Speaker 1:
[05:20] And so, is Eastman barred anywhere other than California? So is he still entitled to practice law, but as a Wyoming lawyer, or is he just not a lawyer anymore?

Speaker 2:
[05:34] Well, typically, courts impose reciprocal discipline. If you're disbarred in one state, you will eventually, there may be exceptions, but typically, you want to be disbarred from if or else that you were a member of the bar. I think he was a member of the bar in DC as well. And I think he has been suspended there as well. And that will probably, he'll probably be disbarred from DC as well. And so, and the court eventually decided to, they can impose a variety of remedies. They eventually land on disbarment, and rely in part on the fact that Eastman is completely unrepentant about any of this. Now, obviously, you would expect someone who thinks he did nothing wrong to be unrepentant. But the fact that they felt that he was, he had done wrong in so many ways in between that post-electoral period in just a variety of aspects in court and out of court made them conclude that what Eastman preferred was the death penalty, was the appropriate sanction.

Speaker 3:
[06:41] All right.

Speaker 1:
[06:42] Well, I think John, who is welcome to come on Lawfare Live anytime to discuss his matter, will have to find a new line of work. Speaking of situations, Roger, that the president does have the power to address, unlike John Eastman's, the Justice Department, which we understand to be Trump's Justice Department, moved to vacate convictions and dismiss seditious conspiracy charges against the people who were not pardoned on the first day in office. We had a Lawfare Podcast entirely devoted to this subject, but give us the overview for those who may have missed this.

Speaker 3:
[07:43] For, remember on Inauguration Day, there were clemencies given to clemency in some form to all 1,583 people charged as of that point in the connection with January 6th. And those fell into three buckets. There was a group that were only commuted. They had their sentences commuted. That was 14 named individuals. And that was, they were charged with seditious conspiracy. They hadn't all been convicted of it. And then the rest of the people approximately, somewhere between 1,100 and 1,270, were actually pardoned. And these lines, this being the Trump administration, the lines are fuzzy. But anyway, and then the rest, which is about 470 people, no, maybe 200 more, 300 more, had their cases dismissed. Because they hadn't yet had judgments of conviction. So, the 14, two of those dropped out, and one was pardoned later, one had his case dismissed, and there were 12 that were appealing. And you can appeal even if your commute means the sentence is gone, but you still have the stain of the conviction, and so you can appeal. And all had, and so it was going to be a significant appeal about seditious conspiracy. Eight oath keepers and four proud boys. The first of those briefs, appellate briefs, was finally going to be due today, actually. And so, April 17th, and then on Tuesday, the government moved to ask the DC. Circuit to vacate the convictions and remand saying that the government will move to dismiss at the district court level under Rule 48A. And there might be some symbolic opposition to that, but I think that the law is pretty clear that they're gonna have the power to do that.

Speaker 1:
[10:14] All right. Yeah, I don't think there's going to be, there may be judges may make some noise about it, but I just don't think there's much, they have much latitude to prevent it. Anna Bauer, one thing judges also don't have the power to prevent is the Justice Department from firing prosecutors. And there do seem to be some new firings at the Justice Department. What do these ones involve?

Speaker 4:
[10:48] Yeah, so we have a few news items this week regarding Justice Department firings or removals from certain prosecutions. The first relates to the reported firings of a group of career prosecutors who were involved in FACE Act prosecutions during the Biden administration.

Speaker 1:
[11:14] And remind us what the FACE Act is, how it was used during the Biden administration, and how it is being used now.

Speaker 4:
[11:24] Yeah, so that's what I was about to get to, is that these firings came on the eve of the release of a report by the Weaponization Working Group, as it is called in the Department of Justice, regarding the so-called weaponization of the FACE Act enforcement by the Biden administration. Now, the FACE Act, we've talked about a little bit before in the context of the prosecution of Don Lemon, the former CNN journalist who's being prosecuted in relation to his coverage of the Minnesota church protest, the city's church protest case. That prosecution relates to the prong of the statute that prohibits impeding or obstructing access to church services or houses of worship. But the main provision of the statute that people are probably familiar with under the FACE Act and the reason that it was enacted in the first place relates to basically people who were blockading or obstructing reproductive health facilities. So, namely, abortion clinics or what is known as crisis pregnancy centers that offer alternatives to abortion services.

Speaker 1:
[12:48] What does FACE stand for?

Speaker 4:
[12:52] Oh, gosh, Ben, what does federal-

Speaker 1:
[12:55] Freedom of access to clinic entrances.

Speaker 4:
[12:59] Thank you. I was blanking there for a minute, so I'm glad that you swooped in with the answer to the acronym.

Speaker 1:
[13:08] Yeah, it's really what the statute is about.

Speaker 4:
[13:11] Yeah, that's what the statute is about. We talked before, or maybe it's just that I've written about it in the FACE Act piece that I wrote with Eric and LT, that the reason the church services provision was put in was kind of as an afterthought. It really, in the 1990s when this was passed, it was all about incidents that had happened at abortion clinics and reproductive health service clinics. But during the Biden administration, there was a lot of enforcement, particularly around blockading of abortion clinics. That was an enforcement priority during the Biden administration. Of course, it's very common for different Department of Justices to have different enforcement priorities. But this Weaponization Working Group Face Act Report focused on this alleged weaponization of the Face Act against anti-abortion protestors, many of whom I will mention were convicted, then pardoned later by Trump during the start of his term. The allegations here are basically that DOJ was working hand in hand with pro-abortion, non-NGO groups. They cite numerous emails that were exchanged between DOJ officials and people who were in these groups. Again, it is not unusual for DOJ to meet with people who work with community organizations. That is not at all unusual. In fact, the week that this report comes out, there's reporting by Ryan Reilly at CNN that DOJ itself, under Trump, met with pro-life groups at DOJ this week. But that seems to be the kind of gist of this complaint is that there was this uneven enforcement. The report, a few things that I will just quickly mention because we have so much to get through. One thing that's really notable is that it often cites conduct that occurred during the first Trump administration even though it's claiming that it's all about the Biden administration's enforcement and contacts with pro-abortion groups. It also, just in terms of addressing counter-arguments does not address, it mentions the fact that there had never before the City's Church case been a prosecution under the House of Worship provisions that we've talked about. But it doesn't mention the reason why that is, is because it's long been seen as very risky for the integrity of such a prosecution to pursue a prosecution under the House of Worship provisions because it's kind of constitutionally on shaky ground given that there's this Commerce Clause argument that we flagged in some of our writing at Lawfare. So, there's just, it seems to not really be a report that has a whole lot of firm ground to stand on. But nonetheless, a number of prosecutors were fired as a result. So that is the FACE Act firings. And then today...

Speaker 1:
[17:00] So, wait, let's talk about the conspiracy to frustrate the grand conspiracy investigation.

Speaker 4:
[17:10] Yeah. So, then that's the second news item this week, is that... And it's not clear to me from the reporting that this person was actually fired. It sounds like she is just no longer working on the grand conspiracy case that's happening out in Florida. That's the one that Molly has written about that relates to the case that they're trying to create against John Brennan related to his congressional testimony, but then also potentially related to a broader kind of conspiracy about efforts to get Trump basically is the kind of gist of it. And in that case, there's reporting that one of the career prosecutors who's helping lead that investigation has now been taken off of the case following the fact that she's voiced some skepticism apparently about the ability to actually create a criminal case against Brennan. And then there's additional reporting that just came out as we were starting this live that a former Judge Cannon clerk who's also a Todd Blanch aide has now been moved to work on this prosecution as well as other prosecutions down in the Miami office. So we're keeping our eyes on that case because it seems like there's some potential developments happening there.

Speaker 1:
[18:48] Interesting. All right. Meanwhile, prosecutors in Washington did something that prosecutors often do, Roger, which is to show up at a construction site and ask for a tour. So tell us what Janine Pirro's people are up to at the Fed and what do you do when a bunch of prosecutors show up and demand a tour of your construction site?

Speaker 3:
[19:21] Yeah, I'm getting this from a New York Times article. I'm not sure who broke it, but they might have. Colby Smith and Glenn Thrush. But we've been following this case, of course. This non-case really. Yeah, it was Carlton Davis and Steve Vander Velden, plus a chief and an investigator from DOJ. Those attorneys are political appointees. Vander Velden is the one that is a dance photographer, I guess, as well. These were the ones who presented the case against Senator Kelly and five other people that participated in that video that the grand jury apparently rejected, reportedly rejected unanimously. And they showed up and they were told, you know, you don't have an appointment, so we can't let you in. It's our safety restrictions. And so they left. This is the case, of course, that Pirro tried to get two grand jury subpoenas and Boisberg quashed those. The although there were a ton of evidence that these were being served for improper purposes, there was no apparent evidence of that they were being served here for understandable purposes. And the government had refused to an offer of proof. Boisberg said, if you want to show me some criminal activity or signs of suspicions, basis for suspicion, we can go ex-party. And they refused. So anyway, this whole thing seems to be holding up the confirmation of Kevin Warsh. His, Powell's term as chairman ends May 15th. He would continue on the board for a couple years if he wants to stay. But, Judge, I mean, Senator Tillis is, said he'll block the nomination if they're still jerking around with Powell. So, and, her, Powell, Pirro in the article commented that any construction project that has cost overruns of almost 80% over the original construction budget deserves some serious review. That's, that's all they've got, apparently. And of course, the other reason for cost increases from 2019 is that building materials costs have gone up since 2019. So, anyway, that's where that stands.

Speaker 1:
[22:23] Yeah, not to mention that the cost of overrun in government building material, building projects is much more norm than exception and has never been generally understood previously to imply criminal wrongdoing. All right, well, one person who likes to infer criminal wrongdoing from non-facts is Tulsi Gabbard, who this week made a criminal referral to the Justice Department of a former intelligence community inspector general. People will remember the name Michael Atkinson and the whistleblower who started Atkinson's investigation in July 2019 of the famous perfect phone call between Trump and a little known at the time, a new president of Ukraine named Volodymyr Zelensky. Roger, why are we still talking about this issue?

Speaker 3:
[23:36] Well, this, and here I'm getting my information from a bunch of Fox News, CBS, CNN, and again, I don't know who was first. Yeah, so she made this referral. Atkinson is a well regarded guy. He had spent 15 years in DOJ before becoming Inspector General. He was fired by Trump in 2020. And there is no discussion in the articles I've seen of what statute this would be. We have a 2019, you know, 2019 is at least six years ago. So maybe and so there's a maybe a statute of limitations problem depending. So we don't know. And we also don't know whether DOJ is taking this at all seriously. We just know that she made what she called Tulsi Gabbard a criminal referral.

Speaker 1:
[24:47] But we have no idea what conduct either Atkinson or the whistleblower is alleged to have engaged in that violated what law, that a statute of limitations would not yet have run on.

Speaker 3:
[25:04] No reference to anything criminal. The Fox News story seemed to think that Tulsi was taking issue with whether this was a quote unquote urgent concern. I think that's the magic language and you would know more about this than me, but when you're a whistleblower, or maybe Eric would, but it's the point at which the IG needs to show something to the intelligence committees of Congress. And if the IG thinks this raises an urgent concern. And so, there's an issue about that judgment call, how that would be a criminal matter.

Speaker 1:
[25:51] Yeah, as I recall, the relevant provision on urgent concern is not a criminal statute. And I believe it is if the IG believes it is an urgent matter of urgent concern, it's kind of, you know, not like that has an objective definition.

Speaker 3:
[26:14] Right, and the only other thing about it is sort of the timing. Obviously, when you're making a criminal referral of an IG and of a whistleblower, you are killing future whistleblowers from coming forward. And we do have some things going on now that might be, perhaps there would be whistleblowers looking at this and thinking, maybe now is not the time. I mean, we do know that there was a whistleblower with respect to Tulsi herself. I don't know that there's anything to that. But of course, Iran is going on. Who knows what's out there.

Speaker 1:
[26:58] No, I think that's the critical point, that this is a way of saying to whistleblowers in the intelligence community. We do not forgive. We do not forget. If you mess with us, it doesn't matter if the Statute of Limitations has passed. We will come after you and we have a very long memory. And the world has very much moved on from the whistleblower, but Tulsi Gabbard has not. And it's important that other people, I guess, not move on as well, given that she has the ability to refer things to the Justice Department. One point that you made that I wanna drill down on a little bit, we don't have any indication at this point, do we, that the Justice Department is doing anything with this, right? It's Tulsi released some kind of press release, but that's sort of all it is right now, right?

Speaker 3:
[28:12] Right, yeah.

Speaker 1:
[28:15] All right, Anna Bauer, some litigation that Lawfare filed or that you and I filed bore some fruit today. Tell us about the Michael Flynn settlement.

Speaker 4:
[28:30] Yeah, I don't know that we've even talked about it on Lawfare Live, but there is a case that exists in this world that is called Bauer versus the Department of Justice.

Speaker 1:
[28:42] And which Bauer does that refer to?

Speaker 4:
[28:45] What do you mean? Me? What do you mean?

Speaker 1:
[28:47] That's what I was just getting at. Oh, yeah, it's Anna Bauer. It's Anna Bauer v. US. Department of Justice, right?

Speaker 4:
[28:55] I was confused because I was thinking, who else works at Lawfare whose last name is Bauer? We have multiple Annas, but not multiple Bowers.

Speaker 1:
[29:05] Right, so who's your co-plaintiff on that case?

Speaker 4:
[29:06] So my co-plaintiff is you. We are represented by the Civil Service Law Center and we are seeking records related to settlement agreements executed by the Trump Justice Department. And as a part of that suit, which remains ongoing, but the first record that we were able to obtain last night actually, is the settlement agreement between Michael Flynn and the federal government in relation to a suit that he brought in which he alleged that he was maliciously prosecuted for lying to FBI agents. Although we should certainly mention that he pleaded guilty twice to those allegations and ultimately, of course, was pardoned in November of 2020 by Trump and in relation to this civil suit that he brought after all of that in which he sought, I think it was $50 million. The federal government settled that suit. It was reported last month that that settlement was for $1.25 million. The documents that we have confirmed and then now published on the site confirmed that it was $1.25 million. But one of the more interesting parts of the document that we received is that it carves out a separate suit that Flynn has pending in the United States Court of Federal Claims that relates to his retirement pay from the Army. So that settlement does not resolve that suit and explicitly carves it out. And then if you look at the docket for that suit, there is a reference in a joint filing last month to ongoing settlement discussions. So it may well be that the federal government is going to pay Michael Flynn potentially more than $1.25 million if there's a separate settlement agreement that's reached in relation to his Court of Federal Claims case. So, yeah, people can check out the document that we published on the site. And hopefully we will get more documents at some point as a result of our case.

Speaker 1:
[31:39] Including, I suspect, the settlement documents in the case that is settlement negotiations for which are now underway between Donald Trump and the IRS in Trump's $10 billion lawsuit against the government. What does it mean that there are negotiations underway given that Trump is both the plaintiff and the defendant?

Speaker 4:
[32:08] Yeah, so it's not entirely clear if this means that a settlement is imminent or if there could be something else, some other kind of agreement in the works. The reason I say that is that if you read the New York Times reporting on, so there was a, and just to give people, you've kind of explained it Ben, but just to give people the background, this is Trump's suit that he brought for $10 billion in relation to claims that the federal government didn't do enough to safeguard his tax returns, which were at one point several years ago leaked and the New York Times reported on it. And in relation to that suit, the federal government has not responded. It's been kind of in limbo for a while. And today there was a filing in which the parties asked for, I think it was 90 days extension so that they could have ongoing discussions about ways to resolve the case. If you read the New York Times reporting on this development, you know, even though it sounds like this certainly means settlement talks, and that's how I took it. The Times is reporting that, you know, although settlement is certainly a possibility, it sounds like DOJ is discussing other ways to potentially deal with the case, which might include asking the judge to just put everything on pause until Trump is out of office. Something to that effect that would kind of put things on hold until these conflict issues, potential conflict issues could be resolved. Of course, settlement still is a possibility. So we will see, but it's not entirely clear what exactly this means. So, you know, stay tuned, I guess, on that one. But I wouldn't be surprised if it does lead to a settlement.

Speaker 1:
[34:21] Yeah, I just I just want to say if Trump achieves for himself the same rate that he achieved for Michael Flynn, I forget what Michael Flynn asked for, but he got asked for $50 million and he got 1.25. So that's, you know, like one in 15. So Trump could get, you know, not 10 billion, but, you know, 750 million at that rate. So it's, you know, it's a good game they've got going on here. Eric Columbus, the state of Minnesota has indicted its first ICE agent and issued a warrant for him. What do we know?

Speaker 2:
[35:14] So this is obviously been a topic that has been of much dispute and discussion, the extent to which federal officers can be indicted under state law. This presents, I think, a somewhat easier case, easiest, one of the easiest cases in that realm. I don't know if it was deliberately the first one brought for that reason. But the facts here are that people are driving on state highway in Minnesota, and it's an area where there's a lot of like traffic and it's kind of lanes merge. And it becomes one lane at that point. And the guy sees someone driving in the breakdown lane on the right, which can be somewhat annoying to see, because it's against the law, but it's a way to get ahead. And so he kind of like pulls over to try to block that other car a little bit, just kind of playing with them a little bit. And then he eventually gets back into his lane, only to see that the other car, instead of like zooming ahead, is driving next to him, and the driver is pointing a gun at the first guy's head. And basically he's like, well, the fuck you doing? How dare you try to cut me off? And the driver's like, what the hell's going on? Calls 911, and as I said, this guy just you know, pointed a gun at my head. And it turns out that the guy in the breakdown lane pointing the gun was an ICE officer who was driving back to the federal building, the Whipple building in Minneapolis to kind of conclude his shift, was not involved in any, by his own statement, was not involved in any enforcement action while he was driving. So then the question becomes, will become whether or not this prosecution can continue. And the test that the courts use is that federal officers are insulated from state prosecutions if the federal officer was doing something that was authorized by federal law. And if the actions in question regarding the indictment were, quote, necessary and proper in fulfilling their federal duties. And so in the first part of that, it seems like it depends on how narrowly you define what the federal official is doing. If you're referring to just like driving on the highway back to the Whipple building, then yes, that was authorized by federal law. If you're referring to the more specific...

Speaker 1:
[38:18] Usually road rage bearing of arms is not encompassed in transportation, right?

Speaker 2:
[38:30] Yes, and that is where it would probably fail in the second, the defense would probably fail in the second prong, whether the actions were, quote, necessary and proper in fulfilling their duties. And there is no argument that he needed to point a gun at another driver's head in order to fulfill his federal duty. So I would suspect that a federal defense would fail. Of course, this doesn't mean that he is guilty of the underlying crime of assault. We just have allegations at this point.

Speaker 1:
[39:03] So do you interpret this as the state of Minnesota saying, let's litigate this where the facts are really good for us, right, you know, like driving back to headquarters does not include pointing a gun at the head of a stranger who's not suspected of doing anything, right? And let's get this established and then we can talk about Alex Preti and Renee Good. Or do you think this case, these cases just ripened in that direction?

Speaker 2:
[39:37] It's really hard to know. I mean, you can make, and just factually it's hard to know. And also, it's hard to know whether or not that makes sense strategically, because on the one hand, yes, as you said, you can kind of get this precedent on the books, road rage case. On the other hand, that case then becomes rather easy to distinguish if you're involved in, if the next case becomes a case where the ICE officer is clearly out on a patrol, trying to enforce, involved in an enforcement action and not just merely driving on a highway, it becomes easier to point to that precedent, say, hey, this is very much not that.

Speaker 1:
[40:24] It's true, although I do think it is fair to say that if you can establish that driving back to headquarters does not include pointing your service revolver at a random driver, it becomes easier to say that detaining a protester doesn't involve shooting him when he's down on the ground and not threatening anybody.

Speaker 2:
[40:55] No, I think that's a good point.

Speaker 1:
[40:58] All right. Anna, we have the latest TPS case that has arisen. First, they came for the Syrians, and I said nothing because I was not a Syrian, and then they came for the Ethiopians, and I said nothing because I was not an Ethiopian, and then they came for the Yemenis, the Haitians, and I said nothing because I wasn't a Haitian. Then they came for the Yemenis, and we had an oral argument in a case called Abdo-Do versus Nome. First of all, why haven't they changed the caption? You know, Nome, she's so last week.

Speaker 4:
[41:40] Yeah, I actually was wondering that myself. I do not know.

Speaker 1:
[41:44] Then they came for the Venezuelans.

Speaker 4:
[41:47] And I think that we're actually missing even a few other countries on this list as well. But yeah, so Roger has mainly been covering the TPS stuff for us. So I defer to him on kind of some of the broader issues. But in SCNY, before Judge Dale Ho, who people might remember from the Eric Adams litigation, he is now has heard argument on a motion from the groups that are representing Yemenis with TPS status, in which they're trying to postpone agency. It's kind of like a preliminary injunction, but it's not technically styled as that. It's an effort to postpone agency action that would terminate TPS status. And it was an interesting argument. It was also a very lengthy argument. It was over two hours and then also a press conference as well. And it was attended by many people from the Yemeni community. And it was very interesting, but it didn't leave me a lot of a good sense about what Judge Dale Ho is going to actually do. You know, I would suspect that he's going to agree with the like, I want to say at this point, it's over a dozen other district court judges who have found in various other cases that the termination of the TPS program was unlawful because the statute, as we've discussed before, sets out, you know, you have to consult with the appropriate agencies, although there is a jurisdiction stripping provision in which, you know, a court can't just swoop in and review the substance of the determination that the Secretary of Homeland Security makes. There's been these rulings on jurisdiction that basically what a court can do is look at the procedure. And so here there was a lot of discussion about, you know, what that procedure was, was there a consultation with the relevant agencies, in which the plaintiffs here are arguing that that at a minimum means with the Secretary of State, potentially with Treasury, potentially with the Department of Defense. And like in these other cases, all that there is in the administrative record about a potential consultation is just like two or three emails back and forth in which there's not really any substance about the conditions on the ground in the country itself, which would be the thing that you would have to consult about to actually make a substantive determination about whether to change the TPS status for the country. But Judge Ho had a lot of good hypotheticals that he was asking. He was really trying to get a sense. Yeah, he was getting a sense of what the scope of the government's argument would be. So, for example, would it be sufficient for the Secretary of Homeland Security to call up the head of the FDA and say, how's the cuisine in Yemen? And then based on, you know, if the FDA says, oh, the cuisine is great in Yemen, then based on that, could, would that be a sufficient consultation to then, you know, change TPS status? So, questions like that, that were very insightful, but he didn't, you know, show a lot of his cards because he had tough questions on the other side for the plaintiffs as well.

Speaker 1:
[45:56] I like Yemeni food, by the way.

Speaker 4:
[45:58] Yeah, I should mention that there is a TPS case that's gonna be argued before the Supreme Court. I believe this is where I need Roger to help me. I believe it's next month.

Speaker 1:
[46:11] This is New York.

Speaker 3:
[46:12] It's April 29th.

Speaker 4:
[46:14] Oh, it's this month. Thank you, Roger. It's later this month. And I think that everyone is kind of wondering, you know, what that argument will tell us about the fate of these TPS cases. Keep in mind, the court already last year lifted a stay on Judge Chin, I believe it was, his TPS ruling related to Venezuelans, the termination of that status. And so there's already potentially an indication about how the court is thinking about this, but there was no explanation for the ruling, so it's not really clear. And that was a big theme, of course, in this argument, which is that, to what extent should Judge Hough be thinking about what the Supreme Court did in that emergency docket decision?

Speaker 1:
[47:18] And I will just remind people that the numbers when you're talking about TPS are huge. I know there's about 100,000 Ukrainians in the United States alone on TPS. I think the number of Haitians is like 400,000.

Speaker 3:
[47:39] It's 350,000 Haitians. It's about 600,000 Venezuelans.

Speaker 1:
[47:44] Yeah. I mean, you're talking about very, very large numbers of people. They are not illegal immigrants. They are not, you know, they're here lawfully. But you can change their status to that of undocumented or illegal migrants with the snap of a finger if you revoke their TPS status. And so the consequences for human liberty are very substantial across very large numbers of people of quite diverse nationality.

Speaker 4:
[48:20] Yeah, I should mention too that the government has not moved to terminate TPS status for Ukrainians that actually came up at the hearing because one of the arguments that's being made by the plaintiffs in this case and also in some of the other TPS cases is that there's a racial animus or an element of that that's here and that the TPS termination is pretextual.

Speaker 1:
[48:55] It's a bit of an overdetermined variable because on the one hand, Ukrainians are white and there is a non-trivial argument that hey, look, you've revoked the TPS for all the people from countries that are, or you've tried to, that are Arab or Central American or South American or Caribbean and not for Ukrainians who just happen to be white European people. You could also say on the other side of that, that the government is asking all kinds of things of the Ukrainian government right now. We are involved in a process with them, a negotiation process where we're trying to get them to do things. Mind you, things that we shouldn't be asking them to do, like capitulate to the Russians. But that there are other reasons why you might not want to stick this particular thumb in President Zelensky's eye. Most of the countries that we have revoked DPS for are countries that don't have functional governments that were seeking things from. Venezuela is a bit of an exception there. But so it's a complicated question and I don't purport to know to what extent race is a factor in the exemption of Ukrainians from this wave of DPS revocations. I will say that the idea that you're going to send people back to Yemen right now is abominable and that's true, irrespective of their race or ethnicity or anything else. I mean, it's as crazy as the idea of sending people back to Haiti or Venezuela right now. I don't really know what else to say about it.

Speaker 4:
[51:13] Yeah. One other thing I'll just mention is in Congress, in relation to the Haiti TPS termination, there was a legislation, I believe, that passed in the House this week. Of course, I think it is potentially likely not to go forward in the Senate, but I defer to Eric, who is more of a congressional watcher on that. But there were a few people on the Republican side who were willing to support that legislation. So it's one of the rare instances that we've seen where there's some pushback on Trump's immigration agenda from Republicans, at least in the House. So yeah, Eric, anything to add on that? Did I get that right?

Speaker 2:
[52:12] Yeah, I don't actually know about that. I will say that there are some Republicans, most specifically Rick Scott of Florida, who have been sympathetic to the concerns of the Haitian community. There's a big Haitian population in Florida, and I could imagine him supporting that. I'm not sure if they would get enough votes to hit 60 there. Then, of course, Trump could veto unless there is a 67-vote majority, veto-proof majority. But of course, there is no veto-proof majority in the House, so veto would probably hold.

Speaker 1:
[52:50] All right. Speaking of things that have not held, Roger, the efforts by long-suffering federal judge Jim Boasberg, former, I believe, law school roommate of Brett Kavanaugh, to hold the government accountable for deporting people in violation of court orders, has run into the buzz saw of a DC Circuit panel yet again, and produced like 130 pages of text. So what the heck is going on? And why is it that the DC Circuit panel is so excited to protect the administration from scrutiny from Judge Boesberg? Yeah.

Speaker 3:
[53:47] Well, it's now just a little over a year since it was April 16th of last year that Boesberg issued his first attempt to investigate criminal contempt stemming from what happened last March 15th, a year ago, March 15th, when he thought that he ordered the government not to send Venezuelan class members to another country. And they sent 137 of them to Sikat under the Alien Enemies Act. And we've now had, we had a split panel. The first panel was two Trump appointees, Rao and Katz, and there was a dissenter, and I actually forget who the dissenter was the first time around. I think, Pillar, I'm not sure. And then that, there was a motion for rehearing, and the rehearing ended, it was denied, it was a split, and six of the 11 judges said, well, it can now go forward, because the reason for Rao's dissent no longer held. And so the case came back, and Rao was on the next panel too. And so was Walker, another Trump appointee, and the other was Michelle Child, so I think it's Obama. And it was another two-in-one split. That's what just happened. And they had issued another administrative stay. That's another odd thing about both these cases. They were both stayed with what's called an administrative stay, which is usually supposed to last about a week. Each one lasted about four months.

Speaker 1:
[56:06] Yeah, that's a real departure from practice.

Speaker 3:
[56:11] Yeah. And the reason for that is you'd issue an administrative stay without giving any reasons. And it's not appealable because it's supposed to be so temporary. So, that's an odd thing too. And we're sort of in the same exactly the same place we were before. This time around, Rao mainly spoke about separation of powers concerns that would be involved in going forward. She had some speculations about how might this go forward. If Boasberg started trying to get discovery about the thinking inside the upper levels of DOJ and DHS, you know, DHS had said this time around, what they did was they said, no made the decision, that's all we're going to tell you. And so her position is, yeah, that's all they have to tell you. And now you refer it to the DOJ and for criminal investigation. And well, maybe they will. Maybe they will. And then Judge Walker sort of endorsed that. And but he also came up with sort of a gotcha reason of his own. He did endorse what Rao said. Then he came up with a gotcha, one of his own, which was a. You know, Boasberg gave this oral ruling, and then he had a little minute order, written order, that said, as discussed, the government shall not is barred from removing the class members. And he says, well, barred from removing. And since the class members had already taken off and they were out of US airspace, they weren't, you know, they'd been removed as far as I'm concerned. And so this order only applies to the people still in the US., which would be the five named plaintiffs who already had their own TRO. So he interprets the TRO out of existence. And then, I should say that Rao also, I'm sorry, but Rao also mentioned that she felt the orders were too ambiguous to be susceptible to, and she used what's called an objective standard. So she's saying, yeah, they may have in fact understood what Boasberg meant. But if you look at the order themselves, the order itself, there's ambiguity. And it's sort of like a plain meaning sort of textualism where you, that you might apply to statutes rather than to court orders. Childs has an 80-page dissent, and she says, I think accurately, at its core, the majority's analysis declares today that there can be no crime if an order violated was not one perfectly written, rather than determine if the order was perfectly understood. Such an approach is unsound.

Speaker 1:
[59:37] Yeah, I just want to say 80 pages dissenting from the resolution of an administrative stay has to be a record.

Speaker 3:
[59:49] Yeah. So anyway, I think, you know, we're in another end bank situation, and I think that this time around, they cannot do anything less than take it. Because the last time around, it seemed like relatively clear, you had six out of 11 saying, let him do it. And but Judge Rao, nevertheless, felt that, implied that Boasberg had defied him because this defied her. And she left out the six out of 11. Anyway, we should move on.

Speaker 1:
[60:26] All right. Well, let's talk about a damages action in Maine against over the detention of a gentleman with an H-1B visa. What's the Maine Civil Rights Act and what is its application to federal immigration enforcement?

Speaker 3:
[60:52] Well, that's the key question. And unfortunately, I didn't, you know, look it up, but the plaintiff's lawyer believes that the Maine Civil Rights Act will encompass a federal agent as a defendant. I'm including it because it was just filed, but we've looked at, these are rare, these attempts to bring damages suits against federal officers. And this is the third one we've seen that I'm aware of. We had the Idaho case where there was a joint task force. And so the theory became, there's a federal conspiracy statute, 42 USC 1985. And we also had one in Alabama where it was just Alabama tort law for what happened to the fellow plus a federal tort claims act, which doesn't go after the officer, it goes up to the United States. But this is just a new a new approach and we'll take a look and see what happens.

Speaker 1:
[62:01] All right. Speaking of people, the Justice Department is firing. We have six more immigration judges who have joined the FACE Act prosecutors as being unemployed. Remind us, Roger, why the Justice Department gets to fire immigration judges.

Speaker 3:
[62:23] Yeah, they really are just employees of DOJ. Now, four of these six were probationary, meaning they were there less than two years. So they really are at will. And so I think they don't have a legal action to bring.

Speaker 1:
[62:48] And what was the great offense of these six immigration judges?

Speaker 3:
[62:54] Well, we know that two of them actually had ruled against the government in very high-profile cases, the Rumesa-Oster case and the Mohsen-Madawi case. In fact, we mentioned that a couple, when it happened a couple months ago, and we sort of joked that they were about to be fired. And here, two months later, they are fired.

Speaker 1:
[63:21] Yeah, so if you're watching and you're an immigration judge, there's a real lesson in here for you. Don't rule for a Palestinian. Just don't do it, or a Palestinian sympathizer, because as her name implies, Rumesa Ozturk is from Turkey, not Palestinian. But she did co-write an op-ed that was sympathetic to Palestinian rights. So just, you know, if you're an immigration judge and you want to keep your job, just make sure the Palestinians and their sympathizers in your court get deported.

Speaker 3:
[63:59] Yeah. And I'll just, she has or Bondi had already fired about a hundred. And it's mainly the things, there are computations that if you were appointed by Biden and if you have experience as a defending immigrants before you became a judge, those count against you. Also, there are statistics, you know, about your, how often do you grant asylum and how often do you grant removal. But I'll just tuck in here that Ozturk herself just announced today, her team announced that she is, has settled. She's going back to Turkey. She says this was her original plan. She got her, she finished her PhD. There is a settlement. And so they've, they've moved to dismiss her case. Couple cases that are still pending, but they want the judge in Vermont to keep jurisdiction to make sure the terms of the settlement are followed. And the ACLU announcement says something. I can't vouch for this being true, because I haven't seen the DHS, I haven't seen the actual agreement, which was apparently signed April 8th. But it says the government also expressly acknowledged that her SEVIS information status, that's the Student and Exchange Visitor Information Service, that keeps track of whether you're properly here, has been reinstated and that she was in lawful status at all times that she was in the United States. So I don't know if that's really part of it or not.

Speaker 1:
[66:07] Well, that's a pretty big win for her.

Speaker 3:
[66:10] Yeah, it sounds like a pretty big win.

Speaker 1:
[66:12] If it's for real. For those who don't remember the Osturk case, this is the woman who was literally snatched off the street by masked men on camera and stuffed into a car like this was Chile in 1973 or something.

Speaker 3:
[66:32] And there were five crucial cases that were used as the symbol of, this is what will happen to you if you protest, do engage in pro-Palestinian protest. It was Her, Khalil, Madhawi, Sadr.

Speaker 1:
[67:01] All right, don't worry about it.

Speaker 3:
[67:03] Madr, Suri and Yonceo Chung.

Speaker 1:
[67:07] So let's talk about Mahmoud Khalil, because things are going a little bit less well for him.

Speaker 3:
[67:15] That's right. His immigration judges are safe. They are reliably ruling against him and on appeal, the Bureau of Immigration Appeals also ruled against him. So, and sort of accepted all of the government's arguments. This is before the Third Circuit. He had lost at the Third Circuit panel. He's still at liberty, thanks, and is petitioning for rehearing. But if the rehearing is denied, he would, I guess, he would lose, he would go back into detention. And the important thing about these immigration judge rulings is that the theory of the Third Circuit ruling, which rejected him, was that all of his litigation, all of his habeas were barred by jurisdiction stripping provisions. And if that's correct, he would have to take the, you know, he would have been in custody for about a year now, while the immigration courts, which can't, which aren't even allowed, really, to hear his constitutional claims, go through his other claims, and only now would it be reaching the appellate court. And the appellate court is going to be the Fifth Circuit, because he was rushed off to Louisiana, remember, and his immigration court is going to be the Fifth Circuit. So yeah, it's not growing that great.

Speaker 1:
[69:11] It is, however, going better for Mahmoud Khalil, who is not the subject of judicial sanctions, than it is for the DOJ lawyer in the Eastern District of California, who is now the subject of court sanctions. What happened in California? But now you're muted.

Speaker 3:
[69:43] I would say it's still a lot worse for Khalil. This is more of a creed occur than an important sanction. But I just, we haven't talked much about the Central District of California. There's a big detention center there. That's the district that includes Sacramento. And this is a fellow who brought a habeas. And it just, you know, it's very like Minnesota. The judge ordered him released and then wanted the a compliance, a certification of compliance. No certification of compliance is filed. And then so he issues an order to show cause. And then issues another order saying return his documents so that his passport and his ID so that he can get, he won't be re-arrested again between here and Utah, where he was arrested when he tries to go back. And he says, confirm, you know, confirm that you've complied with this. And even though there's an order to show cause pending, he doesn't comply with that. And finally, the, you know, the explanation that he gives is a good one, the attorney, he has 300 immigration cases over the last three months. He has dozens of responses due daily. He described it as a triage situation. But the fact was, you know, he had failed to comply before in two other cases. And he failed to comply twice. And here, once while the thing, while the order to show cause was pending. So he's fined $250. And actually, the judge doesn't say what his authority is exactly. He doesn't say what sort of sanction that is. The cases he cited were civil contempt cases. He doesn't say this is civil contempt. And I know the Eighth Circuit has some issues about whether civil contempt would violate the sovereign immunity. So anyway, but it's a creed occur.

Speaker 1:
[72:21] Well, I will just say that this is the 415th case that has made it to our government contempt and non-compliance tracker. And you can find it under the heading Tovar v. Warden, although the name on the case caption on the document is Eblis Alexander YT versus Warden. All right, let's talk about elections. Eric, we have a ruling out of Rhode Island against the Justice Department, the latest effort to get voter rolls from blue states. This is, I believe, the fifth such case. Tell us about it.

Speaker 2:
[73:24] This is the fifth such decision. We talked last week about the decision in Massachusetts. Just to briefly recap, the Department of Justice is trying to obtain unredacted voter roles from all basically all 50 states. Some states have complied, some states have not. It's not entirely clear why the Department of Justice wants this information. They are currently suing a whopping 29 states plus the District of Columbia. It's the only time I can think of where the federal government is in litigation against the majority of the states. And their argument is that Title III of the Civil Rights Act of 1960 entitles them to all voter registration and related materials. And this court, the judge is Mary McElroy, who was appointed as the very usual position of being appointed both by Obama and by Trump. Her nomination expired under Obama before the Senate could vote on it. And then Trump eventually re-nominated her. It's a district court nomination, requires the approval of both senators, what's known as the blue slip. And therefore, it's fair to say that she is not the type of judge who a Republican president would have nominated if he did not have that hurdle to surmount in terms of approval by Democratic senators. So anyway, she, like the Massachusetts court before her last week, she rules against, she looks at Title III of the Civil Rights Act of 1960 and says that it needs to, and finds that the court DOJ has not provided a basis for its request as Title III requires. She notes also that after, because they've not, sorry, but they've not provided a basis for the request, because they have not provided any reason to suspect that there are any problems with voter registration in Rhode Island, and that federal statutes are not a basis to assume that federal statutes, they're relevant, such as the Health America Voting Act or the National Voter Registration Act, are not being complied with. Now, and she notes then that after the Massachusetts decision, DOJ sent a letter to the courts in every pending case saying, look, if you find that there's no basis there, we can file what DOJ called a curing elaboration letter that would presumably contain some factual basis for their request. But the judge said, no, that's not good enough. Even if you did that, it wouldn't help you because you also have not demonstrated a purpose for the request, which is also something required by Title III of the Civil Rights Act of 1960. And it's not entirely clear what type of purpose would satisfy the act. And she said, well, it can't really be any purpose. It can't be any lawful purpose because that's unrelated to the purposes of the statute itself, because then there will be no point in stating in the text that you need to provide a purpose. So she, like some of the other courts before her, said that the purpose needs to be related to investigating violations of individuals' voting rights, and that that is not at issue here, where the kind of purported theory, reason why DOJ wants these is that they're trying to assess whether or not the states are pruning their voter roles appropriately to take care of people who are not still valid voters. All right.

Speaker 1:
[77:52] Anna Judge JP. Boulay, known to his friends as CREM, has denied Fulton County's—sorry, I just couldn't resist— has denied Fulton County's motion to force the government to turn over that evidence that it seized under the watchful eye of Tulsi Gabbard herself. What did he say?

Speaker 4:
[78:25] Yeah, the CREM joke kind of took me a second bit, but it's a good one.

Speaker 1:
[78:32] Yeah, you know, you get so few opportunities to pun on judges' names that we just got to take them when they come.

Speaker 4:
[78:41] Yeah, I mean, so Judge Bully, this order that he entered in which he denied this request from the county to compel additional evidence from the government. Remember, they wanted the government at a minimum to have to file some sort of declaration or proffer regarding the timeline of its investigation. You know, when did this criminal referral happen? When did the investigation actually start? Because it all goes to their pretext argument that really this search warrant was executed because Harmeet Dhillon had been unsuccessful thus far in getting through civil process the same records. And in this order, Judge Boulay says basically like, I don't know why you're asking me to get involved in this. Like, it's up to you to make requests for this information. You know, I don't need to get involved basically. Like, but what I will do is allow you to submit further evidence until April 27th. So if you can get it through, you know, a TUI request, if you can get it through some other means, rather than having to get me involved, you know, I'll consider it, but I just don't want to get involved. That's kind of the gist of what he said in this opinion. So, Ben, it looks like we won't get an order from Judge Boulay until at least after April 27th, which is when the deadline that he set for Fulton County supplementing its evidence. So we will see if they are able to get anything. I suspect not since the government has invoked privilege claims with respect to all of this information that they're seeking, but there may be things in the public record that they can supplement in terms of asking Judge Boulay to take judicial notice of it.

Speaker 1:
[81:06] All right. So Roger, speaking of DC Circuit two-to-one opinions involving Judge Rao, the DC Circuit has remanded the Monument case, or I guess one of the Monument cases, the Can Donald Trump Bulldoze the Justice Department and build a giant ballroom, not the Justice Department, the East Wing, and build a giant ballroom on top of it, citing national security. And this has also produced a lengthy dissent, this time by Judge Rao, but Judge Leon seems to have used enough exclamation marks to have persuaded a majority that he should at least not get reversed. What's going on on the ballroom case?

Speaker 3:
[82:08] Yeah. So he had issued an injunction, which he himself stayed while for until, I guess, today, originally. And it's stopping construction on the ballroom. Because he said Congress has to approve this sort of thing. But the Trump administration had started making, even before him, the first time, claiming that there's all sorts of national security reasons that construction has to continue, because there's going to be a bunker underneath, there's going to be... And it's vital to the president's security to have the ballroom. And so he put an exception in the injunction for safety and security reasons. And immediately Trump went out and said, well, the whole thing falls into the safety and security exception.

Speaker 1:
[83:27] I need a ballroom, a giant ballroom on the surface, because there's a bunker underneath.

Speaker 3:
[83:35] Well, yeah, the ballroom will protect the bunker. And the ballroom will have all sorts of anti-missile glass and anti-drone stuff. And so it's all an integrated hole. You can't do without any of the gilding. Even it's all national security. And that went to the DC Circuit. And then, before it went to the DC Circuit, even the plaintiffs had asked for clarification of this safety and security clause because Trump was saying, I can do anything still. And so two of the judges agreed, I don't have it in front of me, but they're Democratic appointees, that to send it down for a short remand, clarify what you mean by where are the lines on the security and safety carve out. And then Rao dissented about 10 or 12 pages and basically accepted all of Trump's arguments. There is no standing. The balance of the equities is clear because it's vital to the president's safety and security. And there was sufficient statutory approval citing a statute that under which Congress had appropriated $2,500,000 for care and upkeep of the White House, which doesn't really talk about a $400 million ballroom. But anyway, we know where Rao is going to be. So it went back to Leon and he issued a 10-page ruling. He tried to clarify. I have to say it's not 100 percent still clear. Basically, anything below ground you can do. And then those things that are vital to protecting the things below ground, you can do. So I don't know if that's going to satisfy people.

Speaker 1:
[85:55] And just to be clear, how many exclamation points were used in the clarification?

Speaker 3:
[86:03] There were three, which three out of 10 pages, it's a fairly low exclamation mark density, point three. I think that's the lowest we've seen.

Speaker 1:
[86:16] Okay. It's important to keep track of these things. And you get a low energy decision. Yeah. Look, you can get the number of exclamation points at a lot of media organizations, but the exclamation point density is really, that's the value add that lawfare brings. All right. Last case this week, before we go to audience questions, Eric, the president did not prevail in his libel suit against the Wall Street Journal regarding that Epstein birthday book. I'm stunned.

Speaker 2:
[86:58] Well, he's not prevailed so far. I do not think he's ultimately going to prevail, but is not over yet. So this, as viewers may, listeners and viewers may recall, relates to an article that the Wall Street Journal published alleging that there was a birthday book that was given to Jeffrey Epstein, I believe, for his 50th birthday. Letters from friends, including a letter from Trump, that contained several lines of text framed by the outline of a naked woman, which appears to be hand drawn with a heavy marker. A pair of small arcs denotes the woman's breasts, and the future president's signature is a squiggly Donald just below her waist. That is from the Wall Street Journal article about this. Trump sued the Wall Street Journal for defamation for $10 billion for the suggestion that the letter might have come from him.

Speaker 1:
[87:55] The same $10 billion that he sued the IRS for, for the leak of his tax returns or a different $10 billion?

Speaker 2:
[88:03] Well, he's very consistent and $10 billion is one unit for him. He will accumulate as many as defendants will give him. He sued. After that, the FC in the state gave Congress the actual or a actual birthday book, and it contains a letter that very much matches the Wall Street Journal's description. That of course does not prove that Donald Trump authored it, but it does have his name on a page and in a manner that very much matches what the Wall Street Journal said. Wall Street Journal moves to dismiss the complaint, and its main points are one, this is true, what we said is true. Look at this birthday book that the Epstein State gave to the Congress. And secondly, he has not said that the Trump has not pled in his complaint that defendants Wall Street Journal published the article with quote, actual malice, which we'll get to in a minute. First point, whether the article is true, you would think that would resolve the case, but the judge noted correctly that this is a motion to dismiss and you can't really resolve disputed facts on a motion to dismiss. And here, President Trump disputes that the thing is real. And so we can deal with that later. However, the actual malice issue, the judge did accept that and kick the case on those grounds. Now, actual malice is a term that the Supreme Court used in the New York Times versus Sullivan to mean like the standard that needs to be shown in order to plead a defamation case against a public figure. Actual malice is somewhat of a strange term. It does not mean what a normal person would think it means. It does not mean you're acting maliciously.

Speaker 1:
[90:13] It means basically that the false— A knowing or reckless disregard for the truth.

Speaker 2:
[90:22] Exactly. Trump's complaint, the judge noted, does not allege that. It alleges, in fact, kind of the opposite. It alleges that the Wall Street Journal spoke with Trump about the alleged letter, and Trump said that he didn't do it. And the Wall Street Journal published Trump's denial. So the complaint confirms that, and the article confirms that, the defendant's, in fact, attempted to investigate. So the court said, look, you want to take another shot at this? You can. I'll let you amend your complaint. You've got two weeks to do so, April 27th. Trump has already said he would do that. It's not entirely clear how he will amend the complaint, because the very facts in it undermine his case. But I'm sure he'll come up with something.

Speaker 1:
[91:17] All right. We've got two audience questions. First one, I think, is for Anna. From the anonymous attendee, are there any avenues for challenging DOJ settlements with Michael Flynn and potentially with Trump in the IRS matter? If so, who can undertake such challenges?

Speaker 4:
[91:42] It's a good question. I'm not sure I know the answer. I mean, so there often are situations in which a court has to approve a settlement. So that's in cases like the Live Nation case, where we've seen some discussion of class actions. Yeah, class, like that kind of thing. Here I really don't think that there's, I mean, Roger, Ben, Eric chime in. I can't think of how a private actor or an intervener would be able to challenge this. Can you?

Speaker 1:
[92:25] It's all but impossible to imagine for me in the Flynn case, where it's really a that money damages question between the government and an individual. Usually the courts would take the position if there's no dispute between the parties, there's nothing for anybody else to, it's nobody else's business. It may be a little different with respect to the IRS and a very large payout where there's an allegation, I mean, not an allegation clearly, where there's a self-dealing component. You could kind of imagine a situation there in which somebody would come in as an intervener and say, wait a minute, we want, but it's not clear to me who would have standing to do that. I do think like many courts might be a little bit, might take a look if a party who purported to have standing sought to intervene on that basis because the situation is so peculiar, but I can't think of who would have standing. Roger, you were about to jump in.

Speaker 3:
[93:50] No, that's about where I was coming down. Yeah.

Speaker 1:
[93:56] All right. Carol asks, if the DOJ claims to find improper or illegal voter registration, do they have a legal mechanism to make a state remove those voters or make it cumbersome for those people to vote? Eric, Roger, Anna, do you, any of you have thoughts on that?

Speaker 2:
[94:20] Yeah.

Speaker 1:
[94:22] Go ahead, Eric.

Speaker 2:
[94:24] Yeah, sure. I went into some of this in the article that I wrote a few weeks ago for Lawfare. Basically, it would be hard for Department of Justice to do that. There are, the states are required to make a, quote, reasonable effort to remove ineligible voters. And that just kind of means that you're kind of trying in some decent way. If the state believes that the person is a valid registrant and they don't need to accept the Department of Justice's word for it. The Department of Justice can sue. But the suit cannot, I don't believe it can result in removing the actual person from the list. That said, of course, voting for an ineligible person to vote is a federal crime. And if DOJ believes that a specific person is not just improperly on the list, but improperly voted, they can prosecute that person.

Speaker 1:
[95:38] All right, we're going to wrap.

Speaker 4:
[95:41] I would just add that one way they're trying to do it is through the weird post office executive order, elections executive order, that we've written. I believe that it's Molly. It was a co-bylined article. I think it was Lauren Voss, maybe, in Molly who wrote about this. And so you can check that out if you're interested in further explanation of why it would be impractical for them to do the things that they're wanting to do through this executive order regarding people on the voter roles.

Speaker 1:
[96:22] All right. We are going to leave it there, folks. Thanks this week to Eric Columbus, Roger Parloff, Anna Bauer, and guest appearance from Lucy the Dog. This podcast is part of Lawfare's livestream series, Lawfare Live, The Trials of the Trump Administration. You can subscribe to Lawfare's YouTube channel or receive an alert the next time we go live. The Lawfare Podcast is produced by the Lawfare Institute. You don't like the ads on this show. Guys, you can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org, slash support. And if you haven't already done that, become a material supporter of Lawfare. You can be like Carol and the anonymous attendee and get your questions answered live on the show. You can participate in our amazing live chat, which is just shockingly substantive. And you'll also get access to special events and other content available only to our supporters. For example, we're having a meetup in New York next weekend. And if you're not a material supporter of Lawfare, you're not going to get an invite. This podcast is edited by the good folks at Goat Rodeo and our audio engineer. This episode was the most estimable anahickey of Lawfare. Our theme music is performed by alibi music. And as always, thanks for listening. This podcast is part of Lawfare's live stream series, Lawfare Live, The Trials of the Trump Administration. Subscribe to Lawfare'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/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.