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And we're live. It is Thursday, July 2nd, 2026. It is 4 o'clock p.m. in Washington, D.C. It is scorchingly hot out there, people. And a happy 4th of July. It's the eve of the 4th of July as celebrated, which is to say it's the eve of the 4th of July. And folks, you are watching Lawfare Live, the trials and tribulations of the Trump administration. I am Benjamin Wittes, editor-in-chief of Lawfare, and I am here with not one, not two, but three Lawfare senior editors in alphabetical order. Eric Columbus, Kate Klonick, and Roger Parloff. Folks, I have been away the last few weeks. My colleagues have more than ably substituted for me. It has been a humbling experience of realizing that I'm completely unnecessary. But I'm back. And in the seat of the facilitator, once again, we've had a lot of Supreme Court action this week, and we're going to start there. Roger, it turns out that the constitutional language that any person born or naturalized in the United States and subject to the jurisdiction thereof really does cover any person born or naturalized in the United States. Um, uh, birthright citizenship means what it says, uh, say, uh, six justices of the Supreme Court, according to the constitution and five justices of the Supreme Court, according to statute. Uh, what do we make of the birthright citizenship decision? Um, well, let me, it's,

it's five, four on the constitutional question, which is, which is closer than almost everyone thought. And then, uh, there was a sixth who would have, uh, uh, struck down the executive order based on the statute of violating the statute. I hope I have that right. This is 194 pages of opinions. And I have to admit, I haven't read all of them yet. And it's sometimes hard to keep everyone's reasoning separate. But the main opinion was by Chief Justice Roberts with Sotomayor, Kagan, Barrett, and Jackson. That's actually the shortest opinion. It's 26 pages. Um, and, uh, it begins, uh, with, uh, the language, um, uh, of the 14th amendment. Um, he, uh, uh, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. Um, subject to the jurisdiction thereof is the crucial phrase. He ends up with a very Robertsian quote, which is unfortunate in some respects. It says, citizenship then and now was the right to have rights, to freely participate in our.

political community. The framers of the 14th Amendment extended that promise to, quote, every freeborn person in the land, unquote. We keep that promise today. The only reason I think that's unfortunate is that to call citizenship the right to have rights will be taken quite literally by the Department of Homeland Security and by Stephen Miller, who contend that non-citizens have no rights. Yeah, non-citizens have lots of rights. They have lots of rights, even according to recent, very recent Supreme Court rulings. So I'm a little worried about that one. The executive order was, you know, it was one of the ones that was issued on Inauguration Day. And it said that children born of persons unlawfully or temporarily present in the U.S. are not subject to the jurisdiction of the United States. So it tries to exclude those. It's another way to say it, the way the dissenters say it is that he's trying to reach what they call birth tourists or illegal aliens, children of birth tourists and children of illegal aliens. So Roberts goes briskly through history, beginning with around 1608, Calvin's case, so 1608. But the British rule, the British assumption, which was called use solely right of the soil, and that basically where you were born determined your citizenship or subject ship. Of course, it was kings at that point. And then he says, when we got over here, the English faced a new problem, which was Indians, which they hadn't faced in England, or a new issue, I should say. And so those were treated separately. Those didn't people, at least if they were living in their traditional communities, Indians not taxed, they were not citizens. And then as we approached the Civil War, there began to be this view in the South that blacks were not, even if they were freed, even freed slaves were not citizens. That led to Dred Scott decision in 1857. So then the Civil War came and immediately we began to retract Dred Scott. The attorney general for Lincoln did that in 1862 with an opinion. Then there was the Civil Rights Act of 1866. And this is sort of crucial.

and the defendant that the dissenters hang a lot on this the civil rights act says all persons born in the united states and not subject to any foreign power excluding indians not taxed are hereby citizens of the united states so that is the first reversal of attempt to reverse Dred Scott at the very least. And then the 14th Amendment uses this slightly different language that I just mentioned, and subject to the jurisdiction thereof. It's very hard to get to the dissenters' results by examining the words, and subject to the jurisdiction thereof. If you look at that Civil Rights Act and try to focus on that language, not subject to any foreign power, at least in Alito's view, that begins to get you somewhere where you can dissent. Anyway, then there's the Wong King Ark decision in 1898, and then I think that is the gist of Robert's ruling. The main – the so-called principal dissent and certainly the longest dissent is Thomas and – And by longest, it's like half of the total pages of the opinion, right? I think so. I think it's around 94 pages, something like that. Yeah, I mean Thomas clearly – like Thomas clearly cared about this a lot.

Yeah, and he makes it, he says, really, the only point of the 14th Amendment was to overturn Dred Scott. And that's his main thing. He wants to insert the word domicile or the concept of domicile into the definition. So you have to be domiciled here.

and Gorsuch joins his decision. Although with kind of caveats that sort of undermine the opinion,

it's actually a weird join, I think. He then writes his own opinion and does have some caveats. In fact, I think it's fair to say that all of the dissenters have caveats. It's important to remember, the executive order is challenged immediately before it's put into action. And so it's a facial challenge. It's challenged on its face. And so it can only be struck down if there's no set of circumstances under which it would be constitutional. And all of these people, All of the dissenters, I think, feel that not that the executive order would be constitutional, but in all circumstances, but that there are certain circumstances where—

Circumstances in which it might.

Yeah. And I mean, it gets to the unworkability of all of the other definitions. And that's why there are all these ad hoc sort of, well, I don't know about this. I don't know about that. I mean, if you begin to imagine, I mean, because like I said, Thomas's ruling hinges on domicile. Alito's ruling hinges on allegiance. And if the newborn's parents have a dual allegiance, he says that's not sufficient. Of course, I don't know what that means about people like with dual citizenship. Like my wife, for instance, would that mean that her daughter is not a citizen? So all of these get into trouble. Kavanaugh, let's see, Gorsuch, he says, still I wonder, this is his, he says, is a child born here to parents who have long chosen to make this nation their permanent home, not a citizen under the 14th Amendment solely because his parents' presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? So he's saying that apparently the parents, the child of illegal aliens, I'm going to use their terms, it sort of depends on how long they've been here. Is it two years? Is it 20 years? Somewhere in between. What does the hospital do in this situation? And then for domicile, I mean, obviously the child, a domicile has an intent element. The child has no intent. The infant, the parent's intent. I mean, I don't know. It's an interesting ruling. It is fun to see Roberts taking sort of snide pot shots at Alito and Thomas. Thomas, uh, and light and vice versa. Um, but, um, uh, it's, uh, it's an interesting ruling and, and, um, uh, like you said, and then Kavanaugh of course takes this, he's the only one really who takes this position. He says, well, there was a, a statute was enacted in 1940 and then another in 1952 that adopt the language of the 14th Amendment, the exact language. And he thinks

it was clear when those statutes were enacted what everyone, that there was some consensus that the Wong King Ark, Wong Kim Ark ruling was the fate of the law.

I have some sympathy with Brett Kavanaugh on this point, not in his dismissal of the majority opinion, but in.

his suggestion that, you know, we have an on point statute. Um, there's no reason to reach the constitutional question. If we can, if the six of us can all agree that the statute precludes the executive order, why reach the constitutional question at all? And I, um, I actually think the eagerness of the chief and the majority to reach the constitutional question is never quite explained. Kate, you have an issue you want to raise. Yeah, no, it's not an issue. I just have

a genuine question because I have been following this admittedly kind of at the normal consumerist level of kind of like following this case. Maybe it is slightly more sophisticated because I am an attorney and law professor. But I'm one of the things that kind of strikes me about this in the statute versus constitutionality question is the statute question strikes me in like in everything that we're talking about is a kind of like a vehicle in the park type of problem. Is that like an over in the sense that you've got like you're construing this thing and the second you start to apply whatever it is that you've kind of construed in the statute it like there are just so many exceptions and the ramifications of all of these various exceptions make it so unadministerable like it just seems like that always like that kind of is it wrong roger that i'm thinking that like that was one of the reasons they that the the chief and others pushed up to the constitutional question i mean that's certainly not like trying to avoid the unadministerability of a statute or something like that might, you know, is not like an actual reason to like reach the higher constitutional question. But I'm curious if you think that that might have been part of their

justification. Well, I think the statute, I mean, the statute is identical in language to the constitution. And I think they just assumed that they are coextensive and that it was never more it was it's not like in 1940 there was some consensus and now there isn't i don't think there's something different about uh you know if you want to draw distinctions between if you want to try to edge your way around wong kim arc uh uh it's the same hurdles and I think they just felt that this was kicking the can down the road for no particular purpose. You'd start over from scratch and you would start over from scratch tomorrow. You know, if you said if it was 6-3 or 9-0, OK, this violates the statute, but we're not reaching the Constitution. So Congress passes something tomorrow, like exactly like the executive order, and then you go right back to court. And, you know, I just don't, I don't see the point. And only Kavanaugh did see the point. It's not like anyone else said, oh, yeah, I see what you mean. The Constitution, I mean, the statutes crystal clear in comparison with the Constitution. Nobody said that. It was one to eight on that. And people did specifically say, certainly Thomas, joined by Gorsuch, disagreed with that view.

And it's a little bit hard to argue that the verbatim Sam language means something different in a statute than it means in the Constitution. All right. Let's go from a semi-surprising opinion to the least surprising opinion in the history of the modern Supreme Court.

Oh, can I just mention one other thing? Because I think it's quite striking in light of what you're about to say. Just one thing about Alito is that the first line of his ruling is this is one of the most important decisions in the history of the court. So not just this. Which is clearly wrong. And in my judgment, the court has made a serious mistake. Yeah. I mean, it just shows how important to the conservatives it is to to this concept of birth tourism and illegal aliens becoming citizens. And, you know, compare that to the decisions you're about to mention and Calais and other decisions this term and Rucho and then, I mean, he's comparing it.

to Brown versus Board, in effect. Right. No, he takes it very, very seriously. And, of course, to be fair to the conservatives, it's a matter that divides the conservatives. Roberts and Kavanaugh would have decided it the other way on for very different reasons. But among the hardcore conservatives, it is or the hardest core conservatives it's really i you know pretty existential it's a

very important point yeah didn't um didn't sorry didn't alito have a line in there about you know the possibility that someone would be born here and then be raised abroad and

come back as a terrorist etc etc i haven't gotten to that yet if he does but maybe he does

all right let's talk about slaughter and eric i want to start with the most important question about this which is should we call this slaughtering humphrey's executor or should we call it humphrey's executor as executor i think it's a false choice ben we should go with both Yeah. Because I think the opportunity for, like, you know, really not witty puns here, it's a target rich environment and we need to.

I think you meant executioner.

Well, we could also go with executioner. We could go with executor. Executioner. To stick with Humphrey's executor or we could go with executioner.

The slaughter of, yes.

Yeah, we could also make a slaughterhouse case. is fun i mean there's really a lot of opportunity here and um you have to take your humor on this type of shit where you can get it right for those of you who've never done basic con law um this is uh like really juvenile stuff but um uh you know um you gotta run with it when you have both Humphreys executor and slaughter house in the same sentence. You've just got a lot of opportunity for for wit and mischief. Eric, I think this is the least surprising opinion in the modern history of the Supreme Court and one that you really can't blame on Trump. That is, this is a philosophical and ideological commitment of the conservative legal movement writ large. And when you have a conservative majority on the Supreme Court, eventually you're going to get to this. What is

this case about? And am I wrong? I think that's generally right. And for those who are not as steeped in this as has been. The question in slaughter basically is whether the president can fire independent agency heads without cause. And independent agencies is a term that's often used to describe places like the Federal Trade Commission, which was an issue in this case, the FCC, Federal Communications Commission, National Labor Relations Board, places that traditionally have terms of office and protections against firing without cause. And so there is a unanimous decision in 1935 called Humphreys Executor, which held that the president cannot, in fact, fire such people without cause in agencies that have kind of quasi-legislative and quasi-judicial roles and that are not predominantly exercising executive power. It's kind of a rough paraphrase of what the court said in that case. And in 2020, the court ruled in a case called CELA Law that the structure of the Consumer Financial Protection Board was unconstitutional because it created a single member head insulated from presidential control. But multi-member structures such as the FTC lived on. But the writing was quite possibly on the wall by that point. And so as you say, Ben, this has been a kind of a longstanding goal and part of the unitary executive theory that is much beloved in conservative academia and jurisprudence these days.

So Rebecca Slaughter dates from Antonin Scalia's descent in Morrison in 87, I believe, right?

I think it was 87, yeah.

And Rebecca Slaughter, so the plaintiff here, was an FTC commissioner who Trump fired even though her term did not expire until 2028. And in September, the court granted a stay pending appeal of a district court order that had enjoined her firing. And they moved the case from the shadow docket to the regular docket and set a briefing argument, which is kind of an unusual move. And that stay was 6-3 and it was pretty clear at that point what the ultimate result would be these nine months later. It was a 6-3 decision with a majority opinion as in the Birthright Citizenship case. The majority here was written by the Chief Justice who basically began by knowing that the Constitution puts all executive power in one person. and contemplated, of course, that people would be helping out the president, but that to remain accountable to the president, he wrote, those officers must be removable by the president. He then kind of went through a broad sweep of American history, starting with what has been called the decision of 1789, in which the first Congress debated about removal powers in various statutes and concluded that the president should have the authority at will to remove his subordinates. And then he talks about the Myers case, which was 1926, which – in which Chief Justice Taft basically iterated or reiterated Thomas would say that – Roberts would say the basic principle that the president has the power to remove his principal officers below him, people who exercise authority on their own without any supervision. But then in 1935, in the telling of Roberts, the court kind of went a little bit astray by holding that the FTC's duties were an exception to this rule because they were, quote, neither political nor executive, but predominantly quasi-judicial and quasi-legislative. And, you know, Robert said, well, this isn't really true in the first instance about the FTC. And even so, it is really a deviation from the way our jurisprudence has been generally followed. And then he considers whether there's any reason, any stare decisis reason to adhere to Humphrey's executor, and he concludes that there was not. The relevant issues, he said, are the quality of the original decision, how consistent it is with other cases, its workability, and any reliance interests. He concluded that they all pointed in the same direction.

I would just say that that's clearly wrong on the part of slaughter and the reliance interest where it seems like she's got a pretty strong reliance interest on Humphreys' executor.

Well, yeah. Well, obviously the person whose ox is specifically gored by the overturning is always going to be able to say that and yet the court overturns cases.

I'm not saying he's wrong to overturn it. I'm just saying like the reliance interest issue is, I mean, if you go from can't be fired to can be fired and has been fired, your reliance interest has clearly been, I don't know, eviscerated or whatever.

Yeah. So, yeah. And so then in a bit of a coda, he talks about how the FTC has – does basically a lot of really substantive executive stuff like promulgating rules, investigating businesses. And then he gives kind of a caveat. He says, look, we're not deciding other stuff. We're not deciding the fate of non-Article III courts, which are courts created by Congress that typically have removal protections for the judges there. And we're – and yeah. What about civil service?

These are not principal officers, so they're not facially covered by this ruling. On the other hand, based on this ruling, what protection should Maureen Comey rely on against getting a single-page notice, you're terminated because Article 2? Yeah. So this gets to the dissent, Sotomayor's dissent, where she basically says, look, you're not resolving this. A lot of the things you say could be said about the civil service and also about inferior officers. Inferior officers are people who wield executive power even though they are in fact supervised by a principal officer who is accountable to the president. And there is a case in 1886 that said that Congress can protect inferior officers against at-will removal and by extension also civil service folks. but she says, look, Perkins and Humphreys' executor were the only two cases, the only two exceptions to the president's unrestricted removal power. And today you've gotten rid of one of them and who's to say that tomorrow you won't get rid of the other? And at oral argument, the solicitor general basically was asked that question and said, look, you don't have to reach it. That's not what this case is about. He didn't say, oh, no, no, don't worry. The civil service, of course, It's protected

Right, he practically said We're coming for that next But don't reach it now

I mean, he basically did say that Yeah And elsewhere in the dissent By Sotomayor She basically pointed out The inconsistency of the majority's opinion That by relying so much On the quote decision of 1789 And like if this – if, as Robert says, this was already resolved by the text and structure of the Constitution, then who cares what the first Congress did? Why was this issue debated so much in the first Congress as it was? It suggests to her that this was still a live issue. And then she kind of goes on through the – marching through the history and points out that – or rather suggests, and I don't know who's right, that this was not understood in the way that Roberts suggested over time.

It wasn't understood that way up through the Civil War when Andrew Johnson is impeached for violating the Tenure in Office Act, which involved removing a principal officer, right? I mean, this is a vision that has calcified over time, and I'm not even saying it's wrong, but it's not like it was clear in 1787.

Yes. Well, and I think that the Tenured Rovis Act is something that I think is discussed in Myers and then Roberts discusses it here and says, look, that this was not something that really survived or was enjoyed and that President Grant, who was obviously no fan of Andrew Johnson, did not like the act. I think they repealed it very quickly after the failed impeachment of Andrew Johnson. So that points in that direction for Roberts. But Sotomayor says, look, this has been the understanding since 1914 when the FTC was created. And no one has – and 20 years later, it was ruled – the structure was ruled constitutional unanimously by the Supreme Court. And since then, we've had a proliferation of these types of agencies. And it's been going – and so what you're doing is basically overturning a 110-year-old understanding of the Constitution. And obviously, that happens from time to time. But sort of me always like, let's be clear about what's happening. This is not a continuation of a longstanding view of the Constitution, but rather an overturning of something that has been the way all – overturning of a very settled understanding. And Roberts at one point says, look, if this – if the dissent had their way, like Congress could come for and commandeer the Environmental Protection Agency, the Department of Justice, and make these all – these multi-member things.

I mean, there's a very good structural argument for what Roberts is arguing. Just the idea that it is, you know, historically predetermined from the founding is something perilously close to trivial. I think the better argument for it is textual and structural.

All right. Sorry, one more thing. Sotomayor says in response to Robert, she says, look, come on. That's always been possible. That's been possible since Humphrey's executive year. And yet Congress hasn't done that. Like the fact that bad policy choices can be.

made as a consequence of a constitutional rule is not necessarily a reason to get rid of that rule, especially when it's been – that particular horrible has been possible for a century and nothing is – no one is taking advantage of it.

All right. Roberts carves out one big exception to this, which he does kind of in passing in the opinion, uh which is the fed um but he uh uh and he sort of says because the fed something like the first bank and second bank of the united states which kind of was different um doesn't really explain the logic of that at all um uh but it has big importance in a different case which is the case of the Fed governor, Dr. Cook. So tell us about that case.

Lisa Cook is one of seven members on the Board of Governors of the Federal Reserve. Trump purported to fire her back in August, ostensibly because she allegedly claimed two different properties as her primary residence on mortgage applications and primary residents usually secure lower mortgage rates.

There's not been a report by one Bill Pulte, who is now acting director of national intelligence. Is that correct? Yes. Just checking.

And there has not been a tremendous amount of factual development of the allegations. I think it's fair to say that most people think that they are nonsense in the sense that she did not deliberately try to mislead anyone in order to get a better mortgage rate. But that has not really been the focus of the litigation at this point. So the Federal Reserve Act is kind of similar to the FTC Act. It says each governor has a 14-year term, quote, unless sooner removed for cause by the president. And Trump claimed when he fired her that he was firing her for cause. So he was not relying on, unlike in slaughter, he was not relying on his constitutional, on his alleged constitutional power. Following the statute, the statute says you

You can only remove her for cause. I've got cause, which is that she's a mortgage fraud cheat. So says Bill Pulte. And so I'm totally complying with the statute, though presumably I have inherent constitutional authority to defy that statute as I do with the FTC.

Yes, although he did not, he did not make that argument.

but it's latent in the right he's not saying the same logic that applies to the fdc doesn't apply to the fed he's just saying i don't need it because i've got cause here

correct but he didn't but there is no in the alternative argument in in the brief correct

because he knows that roberts is not principled enough to uh honor that right and that roberts would say, wait a minute, I don't mean you can do that with the Fed.

I think that's right. I think there were some hints in prior cases that Roberts would come out.

That could affect people's 401ks, whereas the FTC is just a little regulatory agency.

So Cook sued, and she said basically that, look, this was not for cause. His alleged cause is not cause. and it was protectual also, and that she was entitled under the statute and the due process clause, she was entitled to notice an opportunity to be heard before getting fired, which she did not receive. The government basically argued the opposite of those things. She won in the district court, and she won in the Court of Appeals. And then in the Supreme Court, she lost five to four. Again, Robert's writing the opinion. He was joined by the three liberals. And whereas in the birthright citizenship, sorry, he joined by the three liberals plus Kavanaugh, Barrett, who was with him in the Birthright Citizenship case, was descended here. There are disputes over the argument of – over what cause means. Cook says, look, this happened before I was – this alleged misdeed occurred before I was in office. It can't be relevant and the government basically says cause is really any type of malfeasance that is different from a policy dispute. And the majority, Roberts, comes up with something that's in between, which isn't very clear. It says the cause has to imply an unfitness for the job, and he doesn't really specify what that means because he says, look, we only decided now. We can cite it on narrow grounds because he did not give her the procedural protections that she was entitled to by statute. And he kind of reads – it's a little bit weird. He kind of reads for cause to mean that – to build in with it a requirement for notice and opportunity, which is not something the lower courts had concluded. I think that – Or that the statute says. Correct. Well, he's implying it. He's saying that it's implied in the statute based upon how earlier statutes were construed. And the district court had said that the due process clause guarantees her notice and opportunity to be heard. And he says, look, you don't need a whole big thing. You can do it on papers. You can do it in writing, but you basically do need something. And then – so that kind of decides – is enough to decide the case.

But then he goes beyond that and he says a couple of things. One, he responds to Justice Thomas's dissent. Justice Thomas says, look, this whole thing is silly because even if the government doesn't win on the statute, they should be able to win on the Constitution because this is just like slaughter and the Fed works for the president and the president should be able to remove anyone. And so then Roberts basically goes out of his way, even though no one briefed it. He goes out of his way to say that this is, in fact, constitutional because the Fed is different. And he talks about the first bank of the United States, the second bank of the United States, its regulatory powers. There's a big dispute with Thomas in the dissent about the scope of those powers and how different the Fed is. I do not have any expertise in this realm.

I just want to say, count me with Clarence Thomas on this. The idea that you can, that Congress can set up a bank that operates on behalf of the United States, that has regulatory power, and that this has less executive authority than the freaking FTC is absurd.

Well, he's not saying that they have less executive authority. He's just saying that they're different. They're different and they've been treated differently since the first and second bank of the United States.

But the relevant test is, are they exercising the executive power within the meaning of Article two? And there's just no doubt. There's no like, I mean, look, I'm with Roberts because Clarence Thomas, you know, if you take this stuff too seriously, you go to crazy places very, very quickly. But empirically, Thomas is right here.

I agree that he's right as a matter of logic. I just want to say that it's not specifically a question of what the test is. I mean, Robert does not concede – Robert does not apply the same test in Cook as in Slaughter. And he's very open about it. He's saying this is different. That's the point.

He's not applying the same test.

Yes, but he's very open about that. And Thomas is like, well, this doesn't make any sense. And I do think Thomas has the better of that argument, which in some sense kind of undermines the whole slaughter decision. And another very interesting thing. So again, so Roberts is going out of his way to decide a constitutional issue, which is, I think, similar to what Kavanaugh accused Roberts of doing in the birthright citizenship case. And somewhat interestingly here, Kavanaugh agrees with Roberts doing that. And Kavanaugh – And he's mighty quiet about it, isn't he?

Well, no, no. He has – he writes – he concurs saying, look, this is – we need – this is the right thing to do. I'm writing separately to confirm this is the right thing to do. It's because there's too much. The Fed is just too – Robert says this and then Kavanaugh has a current – Because it matters just that much what my 401k pay looks like. The Fed is just so important. And Roberts says – and Roberts addresses the argument that they should have just left it for another day. But Roberts says, we see no reason to leave the public in limbo or to sow doubt as the status of one of our nations and the world's most important financial institutions. And so then there's another thing that both Roberts and Kavanaugh do is they say, look, this is going to be decided on the facts. The record is very sparse, but we are going to get the facts and decide it, which I think is very interesting because it resolves another issue that they did not have to resolve, which is basically what is the scope of judicial review? I mean, is it just this notice and opportunity to be heard just mean that she needs a chance to make her case and the president has unreviewable authority to do whatever he wants? And Roberts very emphatically answers that. Well, then no, we're going to look at the fact of this case. So I think he's kind of telegraphing to everyone that at the end of the day, Trump is not going to be allowed to fire Lisa Cook unless he finds something on her that he has yet to find.

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Kate Klonick, let's talk about Chautry, which is a case that kind of defies ideological characterization. What is it about? And what did the court do?

yeah just really quickly on the cook thing i want to say like i think that i watched a kind of compelling visual that the new york times put together that was like in their new short reel type of like medium that they do where they had literally printed out all of the decisions i don't know if you guys saw this but they printed out all the decisions but it's important they like placed them in piles of whether they were a win for the government or they were a win for um for the for the petitioner i mean sometimes the petitioners the government but you know what i And so like essentially like they're kind of like they're kind of going back and forth. And there were 63 percent in which the government won on these huge cases. And one of the cases they did not win was on Chattery. And one of the other cases they did not win on was Cook. But I just want to say before I get into chat tree for a second, that I do think that there is like a part of like, they like the Supreme Court saved Trump from himself on this. Like, I actually think maybe Cook is an effing win for like, for, for Trump, because that kept everyone's 401ks in good shape, as Ben kind of points out. And so like maybe the midterms will be OK because like the Supreme Court has taken will take the heat for what like Trump cannot do, which is like back down from doing the absolutely irrational thing of firing like one of the members of the Board of Governors for the Federal Reserve. And so, like, yes, in name, it was a loss for Trump. But I actually think this was like a win for the party, so to speak, for like for the GOP. And I think that that's like I think that that's actually kind of that is me with my super crit hat on kind of critical legal studies hat on. But I just I think that that's kind of an important part here. Anyways, that kind of brings us into Chattery, which is like we're going hearkening back to a layer of like Fourth Amendment doctrine that, you know, was famously championed by Scalia. and kind of adheres to a level of kind of government control that, you know, I don't know, that we see in other areas of the law or in any of the cases that we've talked about today, save for Cook, maybe, maybe. But if you haven't followed it, because there have been so many blockbuster cases, and so you'd be forgiven for not following Chattree. Um, it was like in 2019, an armed robber kind of hit a credit union in Virginia and there was all this surveillance footage and one of it showed him kind of approaching from a nearby church. And so like, he looked like he was on a cell phone as he was approaching. And so that police had absolutely zero suspects. So they went to Google with a geofence.

warrant, which is a warrant to basically hand over data on every cell phone that has been within a certain range, like a physical range of the credit union or the place that like was of interest at the time of the robbery. And the warrant works in kind of three steps. First, Google kind of turns over anonymized location pings for everyone. Then the police narrow that and ask for like a wider time window of users. And then they kind of like narrow it down to a final handful. And then Google hands over essentially the names and phone numbers of those people. And at the end of kind of this process, the person who kind of popped up, one of the three people, was a fellow named Akhelo Chhatri, whose phone showed him entering the zone of inquiry around the, sorry, apologies um around uh the uh credit union at the right time around the 10 minutes before the robbery so like really kind of you know kind of damning and he was indicted um and he moved to suppress the location evidence and um the district court held that the warrant plainly violated the fourth amendment um and but let the evidence and in any way as we go through it um uh under the good faith exception fourth panel affirms that on different grounds saying there was no search that this doesn't count as a search um because chadri had no reasonable expectations of privacy in that data and this is what's known as like the the third party doctrine which is essentially the idea that you give over if you if you kind of are giving over your like any of your information to a third party in this case google um and like your cell phone service you are surrendering all interest and privacy to it so like therefore you have any now obviously like we all rely on this tech every single freaking day of our lives we are constantly tracked by our phones if this was to not count as a search essentially this would like this has been this is this piece and we'll get to this when I kind of give a little bit of analysis after I get done with this kind of telling of the tale um this is kind of like third-party doctrine has been like pretty hard to defend on a practicum level for a very long time, um, because it would basically mean that we're all screwed, uh, for like, for what the government can find on us without a warrant or with a warrant even. And so like, there's kind of, there's like, you know, it doesn't make a lot of sense at a practical level. Um, if essentially you're going to say that like, it's, it's the essential, like the inside, the envelope, um, you hand it over to the post office. And as if you said like, okay, well you handed it to the post office. So it's no longer a private communication type of thing where like you picked up a telephone and so it's no longer private communication because you spoke to the telephone company and you relied on this this isn't parse and it's not in keeping with our normative ideas of privacy um which is hard for the court to square that is like

really likes the idea of like bright clear lines um but they've kind of constructed bright clear lines slowly and i would say that one spoiler alert that chatri finally gets rid of kind of what is going in like one small area which is cell phone location searches um kind of closes the door on the third party doctrine finally and this was kind of a question that was coming out of carpenter which was the last big fourth like one of the last big fourth amendment cases that kind of went forward which is a similar case which is based on cell phone location records which was that basically they had the like the police in that case have kind of like searched asked for the records of everyone who had pinged a cell phone location tower in in a in an area to find the exact location of where someone is and to locate a target. This is kind of this was seen as kind of like, OK, are they going to finally kill the third party doctrine with this? And so Kagan wrote the majority opinion. The court held six or three. Yes, this is going to be a Fourth Amendment search. And then just like off the bat, if you know it's a Fourth Amendment search, then you just really have strong protections for individuals who are going to be using these services, as we all do, and what the police can ask for and how a judge is a warrant or the validity of a warrant request. And so people retain kind of a reasonable expectation of privacy in their location history. So that's great news. I'm happy to be like the one optimist coming on to this podcast today um and so like um that you know um even for and like one of the things the court is always so narrow like we we know that but like the court is so narrow and so confined in their fourth amendment rulings it's always like well all we know is that you can't do this for 24 hours or all we know is that you can't do this for such and such hours or you can't do this within this broad sweep of like locations you can't do it for a two mile radius but maybe you could do it for a hundred meter radius, like whatever the hell. So anyways, the long and the short of it is that essentially the, um, the, uh,

This was an extension of Carpenter. We did a great podcast on this, if you want to listen to it, that we will hopefully link to in the show notes. But basically now, geofence warrants require a warrant grounded in real Fourth Amendment search analysis. And how particular, how narrow, how justified that warrant is going to have to be-

All of that is left for another day.

Is left for another day. It is specifically on remand, back down because it's a fact-finding question. And I am sorry for going on so long because we have Molly Roberts. Hello, Molly Roberts.

We're not going to get to Molly Roberts just because we have two important Roger Parloff questions first. Oh, yeah. Molly Roberts is going to get to stand out in the extreme heat and.

Sorry, Molly. Well, I found a shady spot. I'm fine. I'm fine.

While Roger Parloff addresses two questions, the first of which is for those who are triumphing today on behalf of the Fourth Amendment at its, you know, that it in fact prevents geofence warrants without a warrant, geofencing without appropriate particularity. Talk to us about the January 6th investigation and geofence warrants.

Well, geofence warrants were absolutely essential to the January 6th investigation. I think that the assumption was that the Fourth Amendment applied because it was challenged once, at least, by David Rhine. and that Judge Rudolf Contreras upheld it. At that point, Shatry was pretty much the sole precedent and it was only at the district court level allowing it. But I'll tell you what they did, and it sounded reasonable to me and it sounded reasonable to Contreras. um uh and so january 6th january 13th one week after uh they go to a magistrate the government goes to a magistrate and they propose a and get approved a three-step process and um so step one is you're asking google and google has the best low uh location history information because it's not just cell towers it's multiple especially if you have an android and you have multiple apps on it uh uh you there's also uh bluetooth beacons and there's wi-fi networks and you put all that together and you can really map pretty well where you are um there's an error radius that's why google maps works so well by the way yeah and gps information gps i mean some of the people had life 360 going while they were at the 360 anyway so uh they they asked for google to give them three do three searches one was to list every uh uh device uh by an anonymized information, uh, initially not account name, uh, that went within the contours of the Capitol building. Um, and then two control groups, the same thing, but that was between 2 PM and 630 on January 6th. You know, it was, they broke into the building 213. Um, the, uh, uh, and then two control groups, the same thing, but between noon and 1215 that same day and between nine and 915 that same day to get people that were authorized to be in the building, law enforcement, congressional staff, and so on. And so step two, you would compare the two and then make some other calculations. Step three, you come back to the magistrate, say, these are the ones that we want

to have a list of the actual account names. So the results were on the initial primary list, 5,723 devices inside the Capitol, 159 on the control list. So you subtract those. But then because of this error radius, they said only give us the results on people who at some point were the entire error radius was within the contours of the Capitol. And by the way, being just outside the Capitol would still be a misdemeanor. It's a restricted zone. But anyway, that was what they did. There were 1,498 people that satisfied that.

And how many people were charged in connection with January 6th?

Ultimately, 1,583.

So it corresponds really closely to the group of people who were ultimately charged and convicted in connection with January 6th.

It does. And in fact, it got harder and harder. there were people still being charged at the time that Trump took.

Right. I don't need, we don't need the exact numbers, but the point is about 1500 people are nailed in this geofence warrant and about 1500 people are charged. And by the way, they're mostly the same people.

Yeah. And I mean, and there were some very serious charges for people that were outside the people in the lower west uh tunnel and so on but anyway um and and nobody was charged solely on the base of this what you did was you got back this information and then you asked for the license plates of those you got a photo you compared the photo to the surveillance footage or you you asked you got their facebook accounts you looked at social media and you went with that and then you

talk to witnesses. And, Roger, can I ask a cheeky question? Yeah. Do we have confidence that the solicitor general brought to the court's attention the importance of the geofence warrant in the January 6th case before it ruled in these cases? Oh, that's an interesting question. I didn't read the briefs in the Shatri case. Let me point out to everybody that there's limited basis for confidence that the court was briefed on the full extent of the importance of this too. In major, major national security cases, and I may have something to say about that in law fair over the coming weeks all right roger we've got to go on to really important subjects like golf um but um before we do eugene carroll gets five million bucks what's going on well we we hope

she'll get it um she certainly her lawyers get five million bucks well we show we hope somebody gets it. Uh, it still hasn't changed hands yet. So, um, but, uh, on June 29th, cert was denied, uh, in the Carroll two case, which is the one that went to trial first, that's sex abuse and defamation after defamation after Trump was out of office. Um, and, uh, that was the, uh, The main issues were like evidentiary matters that are usually – that were arguably harmless error in any event and they were the type of thing that's usually – the district judge has enormous discretion, very unusual. And the court rescheduled, meaning after it was fully briefed and distributed, it was rescheduled 15 times before they finally denied cert. So somebody seems interested in – and by the way, this is an important one because the second case where she got $83.3 million for defamation, that was sort of based – a lot of the facts were determined in this case based on – I don't know if it was collateral estoppel or raised judicata, but one of those estoppel doctrines. And so if this had been overturned, the other one would have to go out. But the other interesting – oh, and so Roberta Kaplan, her lawyer, called Trump's lawyer and said, so will you release the $5.5 million that's already in cash in the court's register? You had to post bond. And he said, well, not yet. We're considering moving to reconsider cert denial, which I didn't know was a thing. But so she has asked Judge Kaplan to move very quickly and to get an expedited schedule to.

let him litigate, you know, before ordering release. And he's agreed to that expedited

schedule. All right. So attentive listeners and viewers will remember that this is the tip of a much larger iceberg because there's the $5.5 million is in E. Jean Carroll 2, which is really E. Jean Carroll 1. And in E. Jean Carroll 1, which is really E. Jean Carroll 2, there is something like $90 million. And so, you know, in the two case, which is really the one case, which is the tip of the iceberg, which is $5 million, what is the status of the other case, which accounts for

the, you know, 90 plus percent of the money. Well, it's a curious situation. On April 29th, the rehearing and bank was denied by Second Circuit. That gives them till about, I think, July 28th to file a petition. But on June 2nd of this month, Trump's lawyers wrote the court and they said, don't decide the petition in Carol 2 until you get our petition in Carol 1 and we'll get it in within the month. And they haven't. And so on the last, well, almost the last day of the term, June 29th was when they denied cert in Carol 2. And so what's going on there? I have to think it relates to Trump's speculation, but Trump's lawyers. The John Sowers firm had been handling this at the Second Circuit. It's called the James Otis firm, but there is no James Otis in the firm. But Sower, of course, is Solicitor General. Another guy on the thing, Michael Talent, has gone to that office. Will Scharf is in the White House. Justin Smith just became an eighth circuit judge. So I don't know how much of that office remains. And word had been that Sullivan and Cromwell was going to take this, which would have been highly controversial for I said.

So we don't even know if there is a law firm that represents Donald Trump in Carol 1, which is really Carol 2, which is worth $90 million as opposed to the $5 million.

We don't know whose name will be on the brief, on the petition when it's finally – I should say Solomon and Cromwell has rebuffed all of my inquiries, emails, and calls. So I don't know what's happening there.

All right. We are going to – we will keep that mystery for next week. um and um uh we are going to turn now to the subject that um lawfare live is known for which is of course our golf coverage um i have searched high and low for the masters theme music i have found it um molly roberts you just emerged from uh today's golf course hearing which uh was before the ever feisty judge anna reyes it went on longer than i expected it to um uh which is why we've spent so much time talking about other matters uh tell us about first of all why are we covering golf here on Lawfare Live? And secondly, what happened in Judge Reyes's court today?

And I'm sorry, can I just make a semi-correction? I don't want to leave the impression if I did. My impression right now is that Sullivan and Carmo is not representing him. That's my impression

at the moment. Yeah, you made that very clear. Okay, I'm sorry, Molly. I, I'm, I'm, uh, but we're on to golf now, Roger, the, the important stuff.

No, no, no. I, there were so many digressions in this hearing that had nothing to do with golf. This one felt much more relevant than talking about Mrs. Pac-Man or the Red Sox or, well, the Maginot line one was sort of relevant, but anyway, it went on for three hours. I think partly because we went sort of far afield from the subject of golf. Judge Reyes also made very clear that she has no interest in golf so that may have been part of why but all right why are we talking about golf so so we're talking about golf because as part of his many attempts to sort of remake DC in his image, President Trump has decided that he wants to remake the East Potomac Golf Course, which is a golf course on Haynes Point. It's a public municipal golf course. And he wants to change it into a championship style golf course that would presumably be a lot more expensive. It would get rid of the original Walter Travis design and replace it with the Tom Fazio design. That doesn't mean anything to probably most people here, but essentially the idea is it would be a fancy golf course, kind of in the style of the golf courses Trump has on his properties, and it would be presumably a lot more expensive. As part of this project, when the East Wing was demolished, President Trump, or the department of the interior the national park service started dumping debris from the east wing demolition on to east potomac golf course and there were a lot of questions initially and there still sort of are about whether there were contaminants in the soil and whether those contaminants are harmful to human health it actually turns out and i will maybe get into this a little more or maybe i'll leave it here that the fears that there was asbestos seem to have been unfounded, at least from the soil that was tested. There is arsenic, but it seems like the results suggest that the levels of arsenic don't exceed the baseline so much that they'd be dangerous to human health or to the ecology, which again, this is some of what the hearing focused on. So the lawsuit is by a preservation league and by some public access golfers. And the hearing kind of focused on two things. One, and this is what Judge Reyes described as the big problem for the government lawyer. The government lawyer was saying, you can't review this because it isn't final agency action yet recently over this past weekend i think it was president trump toured this golf course with the secretary of the interior with tom fazio the guy he has claimed is going to renovate it and said oh we looked at the lap i wish i could read it but when i do the camera goes away on my phone but you know we looked at dilapidated east potomac

golf course and we determined you know whereupon it was determined that we're going to build a big, beautiful new golf course. And we will do this by September 1st. So Judge Reyes was sort of pressing the government lawyer on, well, you're telling me this isn't final agency action, but

can you tell me that- It's not final agency action, but it's final presidential action.

Yeah. And then what is NPS and what is Interior doing? I mean, he basically said from the president's mouth to our ears, and now NPS is planning to do this. He said they're only planning to and they have to do all these statutorily required review processes, which is why it isn't final agency action. But she said, OK, you know, it turns out that courts don't really look at this in a super formalistic way anymore. They look at it more in a we know it when we see it kind of way. And one prong of that is, is there any chance it's not going to happen? And she said to the government lawyer, can you tell me here and are you fine with newspapers reporting that the secretary of interior could call up the president and say, hey, we decided not to do that after all. And the government lawyer, of course, was not comfortable saying that because it is happening. But she also said that there was a big problem for the plaintiffs, which she said was the merits, really. They're seeking. So this hearing was about the motion to dismiss the complaint by the government and then also about a motion for a preliminary injunction by the plaintiff. And she said, as far as the preliminary injunction goes, it's not clear to her what they even want her to do. So they say they're going to do all these statutorily required processes. What is she supposed to enjoin them from? She's not going to tell them, no, you can't go through the statutorily required processes. They said, well, we want you to tell them to take away the dirt that's there. And she said, the evidence isn't there that the dirt is harmful. It has to be something harmful at this stage. I don't want to issue, you know, I'm a pure pragmatist. And And because I'm a peer pragmatist, I recognize that this is final agency action because that's the facts on the ground. But also, I don't want to issue an injunction unless I really have to, to stop the bad thing from happening. And I don't see that the dirt is necessarily harmful. You claim you're going to give me expert witnesses. I was so excited for your expert documents. And then you didn't give me any. And you keep saying they're coming. And then she made a Waiting for Godot reference. And he didn't get it. And then that led to discovering-

That was a Waiting for Godot reference?

Yeah, she said, are we going to call it the Godot report? And then this guy just like 100% did not get it. And he was just kind of.

but the government's lawyer whom she really seems to like got it and then she asked him if he was an english major and then he said he was an archaeology major and then we had to talk about monticello and like doing archaeology on the slave quarters and then she was trying to look up a book that she really likes on archaeology i mean no wonder it was a three-hour long hearing um but it's the weave yes it was a little bit of the weave she so yes so she said the godot report and he didn't get it there was also again this is not super it's totally irrelevant but he also is extremely southern the lawyer for the plaintiffs and he kept calling her ma'am and then he apologized and she said i'm fine if you call me ma'am where'd you hear that you didn't hear it from me and he said no ma'am by accident and you know everybody found that extremely amusing uh but anyway he ultimately came back and said well first of all we want you to remove the dirt but second of all we want you to stop them from doing anything else that is a retrievable we want you to enjoin them from you know doing any like groundbreaking action and she said i'm not going to issue a preliminary injunction but i do want you guys to come to another agreement there was already sort of an agreement that the government isn't going to do anything that is a retrievable but there aren't going to be bulldozers that come in in the night and knock down all the cherry trees and i want you guys to come to that in two weeks and present that to me because she says her worry essentially is that it's another east wing situation that you know by the time that she decides that there's something to but by the time the plaintiff can go and actually ask her for relief the thing has already occurred and that's what she wants to prevent right so that's just you know the injunction question she said spoiler alert i'm probably not going to grant your motion to dismiss to the government. But that leaves aside the complaint itself, the full discussion of the merits, which will have to do with whether they have violated and partly whether they've already violated even before going through these processes, whether they've already violated the processes because they trigger earlier. And then also whether they can change the golf course at all, which is a National Park Service Organic Act question. And the anti-golf course people are going to say, well, you need to preserve and protect the parks. And the government is going to say, well, this is that. It's just a different golf course that you guys don't like. So that's basically what's happening. And I guess, yeah, we're not getting the PI, but. All right. No PI,

but we'll have a kind of coerced agreement that will operate as a PI. Is that fair?

That is very fair. Yes.

All right. Speaking of coercion, Roger, we have a reflecting pool vandalism update involving the Olympics. Speaking of things I did not expect ever to cover on Lawfare, what do we know about the latest in charging people for vandalizing the reflecting pool after they've been in the Olympics in whitewater canoeing?

Yeah. David Carter Hearn has now been indicted in Superior Court, D.C. Superior Court. Janine Pirro just gave a press conference at 2.30. Um, under DC code, uh, 22 hyphen 303, uh, um, it's, uh, destroying, basically destroying property worth more than a thousand dollars. Um, I don't know, it's, that's an interesting thing why she would bring it in superior court rather than federal. It is U.S. government property. It's the same – the maximum penalty for that crime is 10 years if you – and it becomes a felony if the property you damaged is worth 1,000 or more. Um, she said at the, uh, at the, uh, press conference, defendant ripped a piece of recently installed sealant on the bottom of the reflecting pool. Uh, she said it was two square feet. She said he used both hands, bare hands, uh, violently. He ripped it. Uh, there are, uh, witnesses who are National Park Services employees. somebody asked was it already ripped or damaged and she declined to say it said she said doesn't matter I think that proving more than a thousand dollars damage by touching something that's already already broken and ripping I'm not going to do that.

trying to rip off a souvenir. I don't think that's going to make it. But there's a statement from his lawyers, Norm Eisen from Democracy Defenders and Mary Dorman from Washington Litigation Group. They say, quote, David Hearn is innocent. These charges are outrageous and should be alarming to every American. This indictment reflects the administration's effort to shift blame for their own failures. On the eve of our nation's Independence Day, Americans should be deeply concerned by the misuse of government power against an ordinary citizen based on a concocted narrative. The justice system exists to determine facts, not to provide political cover.

All right, folks, it is time for this week's Grand Conspiracy Update. Molly Roberts, John Brennan, has sued the Trump administration to get them to preserve documents related to their investigation of him. Grand conspirator trying to cover his tracks. What's going on here?

Precisely the opposite, right? We want the documents preserved here. We want the government not to be able to cover their tracks, I believe, is what is going on. So yeah, John Brennan filed this lawsuit trying to ensure that the government complies with the Presidential Records Act and other document preservation statutes when it comes to their investigations of him. So there are two investigations, right? One is this false statements to Congress that originated from the Jim Jordan criminal referral. And one is the grand conspiracy investigation, which so far we know he's the only, or as we know so far, he's the only name target of, and that, you know, originated from the criminal referrals from Tulsi Gabbard and John Ratcliffe. So the idea is that he may eventually want to file a selective representative prosecution if he is indicted. Selective representative prosecution motion. That makes a lot of sense, given what we know. And if you go through his complaint, excitingly, it cites lawfare articles multiple times, one of which is a piece that Anna Bauer and I wrote about Joe DiGenova, who's down in South Florida helping out with this investigation and who has made a lot of statements about how guilty John Brennan is. And Todd Blanch, the acting attorney general and nominee for attorney general, also has gone on Sean Hannity and talked about the grand conspiracy investigation and said that John Brennan was part of it. So he has all these worries about how this is going to lead to a selective or vindictive prosecution, and he wants to make sure that there's documentation of that. And he says that there's particular reason to worry about that because, well, first of all, this administration has a history of selective or vindictive prosecutions, and second of all, this administration doesn't seem that interested in preserving documents. He says it's also partly just the reality of ephemeral messaging, new technologies, but also he points to he points to lindsey halligan's signal messages with bannon bauer he points to the jeff goldberg signal kerfuffle the atlantic and the strikes on the houthis in yemen so and he points to an olc opinion about the presidential records act not being so important anymore basically so that's what the motion is and the relief that he's seeking he's doing this in dc which again makes sense because that's where they're doing the false statements investigation and despite them trying to be in South Florida for the Grand Conspiracy investigation, it's where most of the conduct occurred, he's filed this motion seeking them to be forced to comply with these records acts. So it's sort of a preemptive thing. And, you know, it could have to do with the selective prosecution motion. It could also have to do with any attempts he might make or anyone else in this investigation might make to quash grand jury subpoenas, which makes sense

too, and he cites in this complaint. It's just smart defense lawyering. Anytime you can get ahead of it and get into court in a more favorable venue to discredit a prosecution before it happens, it's a good idea. I mean, nothing but good is going to accrue to John Brennan for doing this and by the way it's also righteous yeah i have nothing more to say we have six more minutes and six items on our agenda

Uh, Roger, my, uh, uh, uh, the judge on the DC bench who perhaps I most admire judge Randy Moss has granted an injunction to protesters, allowing them to display 86, 47 flags and Trump rape little little girl's signs. Tell me, does this apply to projections? Because that's what I want to know.

I believe it does, in fact. So, Anna Bauer, a few weeks back, described the TRO that Randy Judge Moss gave handed out this is now a permanent injunction summary judgment but it's basically the same issues I think maybe last time it was just the flag the 8647 that's really the most important part for our purposes because that's you begin to extrapolate and say look if this is protected. How are you going to prove a criminal case against James Comey? And that aspect of it, it was all about context, of course, all of these things are. But he said, just as an objective matter, no reasonable person could have taken this as a true threat. Now, in this case, There were other signs about urging impeachment, so it was sort of clear what the definition of 86-47 was. But, you know, he goes through Merriam-Webster and how the dominant meaning is our various things like –

Diner talk.

well we're we're out of uh we're out of ketchup we're out of ketchup or let's get rid of this uh customer in the who's being obstruct obstreperous in a bar all right we're gonna 86 this subject

because we got to move on um and we got to move on to the reporter's privilege uh where katherine heritage, uh, of CBS, uh, has to pay $800 a day for not giving up her source. What's going on with

that, uh, Roger? Yeah, this relates to something that happened when she was with Fox. I don't think she's with CBS anymore. Um, but anyway, um, yeah, she, uh, uh, she did a story about, uh, uh, Yan Peng Chen, um, uh, who was, uh, uh, a, um, she, uh, a naturalized Chinese citizen who had um uh started a non-profit university that was used mainly by military personnel and uh she went she was the subject of an fbi investigation and a search i think and um uh and she was eventually they decided not to bring charges and shortly thereafter uh apparently she she did a series and she had some stuff, photographs and other information that are apparently from the investigation that had been leaked to her. So Chen sued DOD and FBI under the Privacy Act. Judge Carl Nichols ruled against her. She was subpoenaed for information. Who was your source? She refused. Judge Carl Nichols said the reporter's privilege has been overcome here. D.C. Circuit affirmed. Katzis writes the opinion, but also Michelle Childs, who's a Democratic appointee, and Harry Edwards, who's a Carter appointee. re-hearing and bank denied, then moves to the Supreme Court, represented at the Supreme Court

by Paul Clement. But this is basically an intraconservative fight. Yeah. Catherine Bridge, conservative, leaning MAGA conspiracy theorist reporter rebuffed by serial conservative judges and despite being represented by conservative lawyer, superstar Paul Clement.

Yeah. And so Chief Justice granted an administrative stay, I think, two days ago, but that was just lifted today.

So that's all right. So eight hundred dollars a day. That's starting to tick. Meanwhile, Molly Roberts, Judge Paul Friedman, who I ran into at a restaurant recently, has blocked a rule in the latest battle between the press and the Pentagon. What's going on there at the Department of War?

Yes, I will try to be lightning fast about the Department of Defense, which I believe is what he is continuing to refer to it as. So I good for him. So this is round three of an ongoing fight about the Pentagon's press policy and challenge that The New York Times brought. Effectively, The New York Times had already won a preliminary injunction on this policy that required the special press passes. And then they won a motion to enforce because the government did a revised policy that didn't really comply with the order, or at least Judge Friedman certainly didn't think it did. Part of that revised policy included this escort policy, but the escort policy wasn't technically part of the, well, it wasn't part of the initial policy, so it wasn't technically part of the challenge. so it had gone up to the dc circuit kind of came back he had to look again at the escort policy and what has happened now is that he has granted a preliminary injunction also on the escort policy which said you can't go into the pentagon without an escort except for like one very particular area and yeah he said that for the same reasons that the press credentials policy was con was unconstitutional. This is unconstitutional to First Amendment discrimination. It's viewpoint retaliation. The viewpoint here is wanting to be able to report in a critical fashion. And that doesn't mean critical, like I don't like you administration. That means criticals and I'm going to ask questions. I'm not just going to be spoon fed whatever the administration has to say

to me. All right. Meanwhile, Judge Emmett Sullivan has blocked the U.S. Postal Service efforts to comply with the president's executive order on elections. This goes to another area other than the Grant's conspiracy, cue Grant conspiracy theme that I'm not going to play again, of Molly Roberts's obsessive attention. Molly, what is going on here with the U.S. Postal Service

and Judge Sullivan? Yeah, so this one's a little complicated. This one actually is sort of a different way to challenge this executive order, which is already being challenged, the order itself, in multiple courts, in which we've recently had rulings on from Judge Indira Talwani in Massachusetts. That was the most recent one, blocked the order, and Judge Carl Nichols that said this isn't right yet, and that's, of course, here in D.C. Now, this ruling from Judge Sullivan here, is having to do with his case previously that the NAACP had filed against the Postal Service that led to a settlement. And the settlement essentially said, you have to make sure that the election mail gets delivered to everyone in a timely manner. So they're challenging the Postal Service's implementation of Trump's executive order on mail-in voting and saying that the way they're implementing it, by which states have to submit a list of people who they want to get absentee ballots, and then they also have to comply with kind of a stringent set of technical specifications, and that the post-service will only transmit ballots to people who appear on a list and have the ballots conforming to the technical specifications. The NAACP said, actually, this doesn't comply with, this is in violation of our settlement agreement, and Judge Sullivan and found that that's true. So, you know, it seems like this sort of narrow, weird, technical, runaround way to challenge the order, but actually Judge Talwani's ruling only applied to the 23 states in D.C. that had sued to enjoin the order, and this one applies nationwide. So for now, there's an injunction against Postal Service implementing this order anywhere.

Interesting. All right. Finally, last but not least, Eric, a district judge in Massachusetts has imposed limits on public service jobs for student loan forgiveness purpose or what qualifies as them. What the heck is this doing on our list? uh so yes the the this is judge june in district court in

Massachusetts, a Biden appointee. And this could be seen as an example of the administration trying to kind of crack down on liberals and people they don't like by trying to narrow the definition of public service in the term public service job, which is something that if you take after graduating from school, you can get some of your student loans forgiven. And pursuant to following an executive order, basically spoon feeding it to the Department of Education, the Department of Education promulgated a rule defining public service to exclude organizations that engage activities that have a substantial illegal purpose. And they define that as including aiding or abetting violations of federal immigration laws, supporting terrorism, engaging in chemical and surgical castration or mutilation of children in violation of

federal or state law. I didn't know many public service organizations did that.

Well, I suppose one could be working in a hospital, for example, that may – I need to look at the definition. That may engage in castration? Well, invite –

I mean, I'm in hospitals. Pardon me. Like I'm unaware of hospitals that are like willy-nilly castrating people.

What they're talking about is, what they're trying to get at is surgery on trans children.

I understand. I am the father of a trans person. I am unaware of hospitals engaging. I mean, gender reassignment surgery is one thing. I'm just puzzled by the imprecision of the medical language there. Let's just put it that way.

Yes. Castration or mutilation, it says. They do not use the term mutilization, which is the president's preferred term. Trafficking of children to another state for purposes of emancipation from their lawful parents in violation of the law or engaging in a pattern of violating state laws. And so the court strikes this down on three grounds. First, it says there's really no role for regulations here because Congress made quite clear what it wanted to cover. Congress defined public service jobs with kind of a range of organizations, military service, public safety, law enforcement, public health, et cetera, et cetera. And so the judge said, look, you can't just go into that. They've defined a public service job with tons of examples. You can't go into that and then define public service as part of that. There's no room for regulation. also found that it was arbitrary and capricious because there's no evidence of a problem that needed a regulation to fix it. There were very few employers. Apparently, the rule, the administrative records show that the Department of Education believed there were fewer than 10

employers affected annually by the rule. Right, because so few employers engage in castration.

um sorry no no and then and then finally the judge said that this was invalid under the first amendment because the way this is drafted just kind of clearly is drafted to target the administration's enemies and it does so in a way that is is viewpoint discriminatory discriminatory obviously you can't uh you can't violate the law but the the very the broadness of the language like the aiding and abetting language, leads to just very vague regulation that will inevitably be used to chill protected speech. Folks, we're going to leave it there.

Thanks to not one, not two, not three, but four Lawfare senior editors, Molly Roberts, Roger Parloff, Eric Columbus, and Kate Klonick for joining us today. This podcast is part of Lawfare's live stream series, Lawfare Live, the trials and the tribulations of the Trump administration. You can subscribe to Lawfare's YouTube channel to receive an alert.

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Transcription by CastingWords