... Her final words seem to be a gutsy challenge to SCOTUS itself: “Now it is the job of courts to ... step up, to ... safeguard academic freedom and freedom of speech as required by the Constitution ... .” /7-end
Senior Editor, Lawfare. Ex-Fortune staff. Published in ProPublica, NYT, New York, New Yorker, Yahoo Finance, Air Mail, etc. Practiced law a long time ago.
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... Her final words seem to be a gutsy challenge to SCOTUS itself: “Now it is the job of courts to ... step up, to ... safeguard academic freedom and freedom of speech as required by the Constitution ... .” /7-end
... “It’s unhelpful & unnecessary to criticize district judges ... when they are working to find the right answer in a rapidly evolving doctrinal landscape ... without much guidance or consensus” from SCOTUS.” ... /6
As for Justice Gorsuch’s recent APHA concurrence, lecturing district judges not to “defy” SCOTUS's cryptic emergency rulings, she pushes back. SCOTUS's rulings have not been “models of clarity” & the outcome in APHA was “inconsistent with the views of 8 justices” ... /5
... Still, she recognizes that “it may well be” SCOTUS won’t agree with her—though she needles SCOTUS for failing to explain how its recent stay rulings are consistent with earlier, fully argued, SCOTUS precedents. ... /4
... She tries to distinguish the recent SCOTUS emergency rulings (California & APHA), which sent all or portions of those cases to the Court of Federal Claims, by saying that, unlike those cases, she’s ruling on claims brought under the 1st Am and Title VI of the Civil Rights Act. ... /3
... Here she explains why the govt’s “combatting-antisemitism” claims are just a “smokescreen” for an “ideological assault” on universities. The funding cutoffs “likely will harm” Jews, and it’s unlikely “any Jew” would favor stopping research on Alzheimers, heart disease etc. /2
Judge Burroughs’ ruling for Harvard, vacating $2.2 B in grant terminations, is well-written & brave, but teeters on a knife’s edge, as she admits, in trying to distinguish the SCOTUS’s Dept of Education v Calif & NIH v APHA rulings ... 1/7 storage.courtlistener.com/recap/gov.us...
It's a preliminary injunction against the proclamation's enforcement in the ND Texas at this stage. Obviously, more litigation ahead.
Full ruling here. (USCA5 struck down, 2-1, Trump's Alien Enemies Act proclamation as unlawful: no "invasion" or "predatory incursion." Different majority found, 2-1, that, if it were lawful, 7 days notice would be sufficient.) storage.courtlistener.com/recap/gov.us...
In WMM, dissenting Judge Oldham (a Trump appointee) would have held that, despite what SCOTUS said in JGG, accused Tren de Aragua members aren't even entitled to hearings on whether they’re really TdA. Being Venezuelan is enough to remove them under Trump’s Alien Enemies Act proclamation.
#BREAKING: Fifth Circuit (Southwick & Ramirez, JJ.) holds that President Trump’s invocation of the Alien Enemies Act against Tren de Aragua is unlawful, and blocks AEA removals in the Northern District of Texas (over a lengthy dissent from Judge Oldham): www.ca5.uscourts.gov/opinions/pub...
#BREAKING: Judge Breyer has held that the Trump admin. *violated* the Posse Comitatus Act in its military deployments in and around Los Angeles, and has enjoined further use of those troops for law enforcement tasks. The order is stayed through 12 PDT on 9/12: georgetown.app.box.com/file/1973361...
... For full coverage of yesterday’s Labor Day Sunday emergency hearing, see colleague @annabower.bsky.social ’s live blog for @lawfaremedia.org here: www.lawfaremedia.org/article/emer...
Yesterday, after enjoining DOJ/DHS from removing dozens of unaccompanied Guatemalan minors, Judge Sooknanan ordered DOJ to file 4 status reports *later that same day*—with a 5th still due this morning—to prove it complied. (“Presumption of regularity” is gone for this DOJ.) ... 1/2
... .@aclu.org stresses that, whatever obstacles to a criminal contempt action might lie ahead, Judge Boasberg could also still choose remedies short of those, including referrals for bar and court “disciplinary proceedings.” DOJ response is due 9/8. 5/5-end
... “That is especially so where there is evidence not only that DOJ attys understood the order at the time but that a high-ranking DOJ official [i.e., then-ADAG Emil Bove] had also indicated in advance that DOJ might ignore a court order" [i.e. say ‘fuck you’ to courts]. ... 4/5
... @aclu.org says it wants to ensure parties can’t evade even answering questions about their possible defiance of court orders. Here, DOJ attys “chose to ignore the order & then retroactively manufacture ambiguity”—“remarkable step for any litigant, much less the DOJ" ... /3
... Recall that on 8/8 all 3 panelists had agreed that Boasberg’s order was not appealable, yet 2 Trump appointees, on different theories, voted to grant mandamus. @aclu.org says the outcome “would have dire consequences for the Judiciary’s ability to enforce its orders.” ... /2
On Thurs (while I was on vacation), @aclu.org sought full DC Circuit review of the splintered panel decision that would vacate Judge Boasberg’s order finding probable cause to believe DOJ attys committed criminal contempt in the JGG case. ... storage.courtlistener.com/recap/gov.us... 1/5
And find all of her and @rparloff.bsky.social's trial and hearing reporting at Lawfare's litigation coverage homepage: www.lawfaremedia.org/projects-ser...
This morning, Judge Jia Cobb held a hearing in Cook v. Trump, a lawsuit in which Federal Reserve Governor Lisa Cook is challenging President Donald Trump's attempt to fire her from the Board of Governors. @annabower.bsky.social covered the hearing as it happened. Read her report:
This is a key point. Last month DOJ called a DHS/ICE witness to provide hours of sworn testimony before Judge Xinis that—as top DOJ, DHS, and White House officials had to have known at the time—was palpably false.
ICYMI: Watch @benjaminwittes.lawfaremedia.org, James Pearce, @annabower.bsky.social, and @rparloff.bsky.social discuss the FBI’s search of John Bolton’s house, a ruling in the civil fraud case against President Trump, updates in Rep. LaMonica McIver’s case, and more. www.youtube.com/live/vR7SQ-t...
In 1 hour, @benjaminwittes.lawfaremedia.org, James Pearce, @annabower.bsky.social, @rparloff.bsky.social will discuss the FBI's search of John Bolton's house, a ruling that Alina Habba is serving as U.S. attorney unlawfully, Kilmar Abrego Garcia's return to Maryland, and more live. Don't miss it!
HAPPENING NOW: Benjamin Wittes is livestreaming from outside John Bolton's house, which seems to have some FBI action occurring. Link below to watch along.
Once in MD, ICE is not supposed to take Abrego into custody, according to an order issued 7/23 by Judge Xinis. The govt has not appealed that order, though it has 60 days to do so. 3/3
Abrego's attys also interpret this filing as non-opposition by the govt, rendering unnecessary a release hearing that Mag. Judge Holmes had tentatively set for 8/25 in case the govt had opposed Abrego's proposed conditions of release. ... 2/3
In a confusing filing last night, govt does NOT appear to oppose Abrego Garcia's motion to allow his release order to TAKE EFFECT TOMORROW (Friday). He will have 48 hours to travel to Maryland on his own (protected by his own security) to report to pretrial supervision there. ... 1/3
Unfortunately, as I think about it more, I wonder if the hurdle will be resources. It might be hard for the ACLU to justify spending time and money on appealing to the en banc court, when a criminal contempt order would only provide very indirect benefits to its clients.
In 1 hour, watch @benjaminwittes.lawfaremedia.org, @annabower.bsky.social, @rparloff.bsky.social , @sranderson.bsky.social, and @chrismirasola.bsky.social discuss today's hearing in D.C.'s suit challenging the Trump admin's take over of the police department, the hearing in Newsom v. Trump & more.
... I just can’t see either the en banc (full) DC Circuit or even SCOTUS upholding the anomalous result here, where Judge Katsas’s rejected reasoning (1-2) plus Rao’s rejected reasoning (1-2) were summed to vacate Boasberg’s order (2-1). 1/13-end storage.courtlistener.com/recap/gov.us...
... commingled criminal & civil contempt measures. But Judge Pillard parries that even if Rao were right, which she’s not, she should only have vacated the offending part of the choice (rescuing aliens), not the part about telling Boasberg who decided not to follow his orders. ... /12
... The other conservative vote to vacate Boasberg's order came from Judge Rao, who adopted an entirely different theory. She theorized that when Boasberg gave DOJ a choice—tell him who ordered defiance of his orders or take steps to rescue the aliens wrongfully sent to CECOT—he improperly ... /11
... Her dissent reminded me of watching a prizefight where a champion batters a challenger to a pulp, while the ref waits too long to call a TKO. (See, e.g., Muhammad Ali v Cleveland Williams.) Here, for instance, Pillard lists 4 implausible steps Katsas takes to conjure ambiguity... /10
... Most of Judge Pillard’s 50-page dissent (beginning at electronic page 61) is devoted to laying bare Katsas’ “ ‘spurious, post hoc rationalizations’ to manufacture ambiguity where there is none.” I recommend reading in full. ... /9 storage.courtlistener.com/recap/gov.us...
... Judge Nina Pillard, in dissent, shows in her own footnote that there was no ambiguity in the real world. She quotes Reuveni’s and Ensign’s contemporaneous emails. As noted, Katsas doesn’t deny this. He just says that the real world has “limited relevance” here. ... /8
... they only showed what DOJ attys really thought (their “subjective” understanding) rather than the theoretically conceivable confusion that Katsas thinks they could've experienced based on his implausible post-hoc readings of transcripts & a minute order (an “objective” reading). ... /7
... In the real world, there’s no question that DOJ attys present at the 3/15 hearing understood what Boasberg was saying. We know that because of the real-time emails former DOJ atty Erez Reuveni has since provided. Katsas said those had “limited relevance” because ... /6
... No DC Cir judge adopted these arguments. In voting to vacate, Judge Katsas found that Boasberg’s orders were *objectively* too ambiguous to form the basis of a criminal contempt action. “Objective” is the key word here. Here, it means “fictional.” I’ll explain. ... /5
... (1) oral orders don’t count; and (2) Boasberg had no power over defendants after the planes left US airspace. (See transcript excerpts below from 3/17 where DOJ atty Kambi—filling in for potential contempt target Drew Ensign—made these claims.) /4
If you remember, 2 days after DOJ ignored Boasberg’s oral order to not turn over Venezuelans—rounded up with no due process purportedly under the Alien Enemies Act—to a foreign sovereign, DOJ (apparently Bove, see below) asserted 2 bases for its conduct: ... /3
I say “outcome,” rather than ruling, because neither conservative judge who voted for this result won majority support for his/her reasoning. Neither endorsed the other’s theory—nor the tortured theories DOJ (likely Emil Bove) originally offered for not following Boasberg's orders. ... /2
Some late notes on the DC Cir panel’s 2-1 order Friday in JGG, which, for now, rescues Trump’s DOJ from criminal contempt proceedings. I’m optimistic the full appeals court will reverse & I doubt even SCOTUS will save Trump’s DOJ this time. ... 1/13 storage.courtlistener.com/recap/gov.us...
Ghislaine Maxwell, serving 20 yrs for sex trafficking minors, has been given permission to leave minimum security campus for work assignments, per @muellershewrote.com www.muellershewrote.com/p/exclusive-...
COMING UP: Judge Charles Breyer is set to preside over a bench trial in Newsom v. Trump The suit, brought by Governor Gavin Newsom, challenges Trump’s use of federal military forces to enforce immigration in California. I plan to live-post for @lawfaremedia.org. Follow along ⬇️🧵
NEW: “In the end, Abbott’s brief is not a serious legal document. It’s an entirely political one.“ Wherein I answer your burning questions about several niche areas of Texas state law—and tell you how I really feel about Greg Abbott’s no good, very bad brief. www.lawfaremedia.org/article/a-le...
It's sort of remarkable, given that it almost certainly means returning to ICE custody & risking ending up in South Sudan. But many of them had been in the process of seeking asylum from the Maduro regime at the time of their removal, so it also makes sense.
Last night, @aclu.org told Judge Boasberg that many class members in the JGG case—Venezeulans sent to CECOT under the Alien Enemies Act & now in Venezuela due to the prisoner swap—still want to return to the US & resume legal battles here. ... 1/2 storage.courtlistener.com/recap/gov.us...
ICYMI, last week @freedom.press filed a 23-page petition to disbar FCC chair Brendan Carr. It alleges furtherance of Trump's "scheme to launder illegal bribes" in the CBS/Skydance case plus "frivolous" probes into media outlets & entities beyond FCC's powers. media.freedom.press/media/docume...
Alas, no. Administrative stays are supposed to last no longer than necessary to read briefs & make a reasoned decision whether to grant a stay pending appeal. This admin. stay was entered on 4/18/25—110 days ago. It was 2-1. Rao & Katsas (Trump apptees) voted to stay; Pillard (Obama) dissented.
“Blind deference to the government?” Judge Faruqui wrote. “That is no longer a thing. Trust that has been earned over generations has been lost in weeks.” (From Alan Feuer in @nytimes.com ) www.nytimes.com/2025/08/04/u...
Just reading transcript of 7/24 hearing before Judge Boasberg in JGG—AEA case where govt sent Venezuelans to CECOT despite his orders. Even if DC Cir blocks criminal contempt proceedings, Boasberg says he’ll refer DOJ attys to bar authorities & court’s own disciplinary committee ... 1/2
This conversation is live now! Tune in here: youtube.com/live/vkiYdSv...
@benjaminwittes.lawfaremedia.org argues for the impeachment of Emil Bove over his alleged unethical actions in the Alien Enemies Act case in front of Judge Boasberg and in the corruption prosecution of NYC Mayor Eric Adams in The Situation. www.lawfaremedia.org/article/the-...
As to former DOJ atty Erez Reuveni’s whistleblower letter, Boasberg said: “I assure you that if and when the [DC Cir.’s] stay is finally lifted, this Court will follow up on these revelations ... .” 2/2-end
Just reading transcript of 7/24 hearing before Judge Boasberg in JGG—AEA case where govt sent Venezuelans to CECOT despite his orders. Even if DC Cir blocks criminal contempt proceedings, Boasberg says he’ll refer DOJ attys to bar authorities & court’s own disciplinary committee ... 1/2
In 1 hour, join @benjaminwittes.lawfaremedia.org, @sranderson.bsky.social, @rparloff.bsky.social, and James Pearce for a live discussion of the litigation surrounding the Trump administration, including the Ninth Circuit finding the birthright citizenship EO to be invalid and more.
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BREAKING: A new whistleblower, whose disclosures haven't been publicized, has evidence that Emil Bove wasn't truthful during his confirmation hearing. The whistleblower has tried to share info with Republican senators for weeks and they haven't responded. We urge senators to listen before voting.
By a 6-3 vote, SCOTUS lets Trump fire the Dem members of the Consumer Product Safety Commission, who are protected against removal by statute. Dissenting, Kagan says the majority is undertaking a “permanent transfer of authority” from Congress to the president. www.supremecourt.gov/opinions/24p...
Trump's suit against @wsj.com has been assigned to Darrin Phillip Gayles, an Obama appointee.
Attys for Abrego (Garcia) have asked Judge Crenshaw, if he issues an order releasing him from criminal custody, to stay it for 30 days to prevent DHS from immediately deporting him. This seems to give Judge Xinis in Maryland time to craft relief. storage.courtlistener.com/recap/gov.us...
... Legally, the key ruling is that the govt is *unlikely* to win on its jurisdictional claim that the case should’ve been brought in the Court of Federal Claims, which handles contract disputes with US. When this gets to SCOTUS, that will be the diciest issue. /5-end
On this record, the appeals court saw “no obvious error” in Young’s conclusion that NIH’s actions bore “all the hallmarks of arbitrary & capricious decision-making.” /4
DOGE’s template cancellation letter left blanks to be filled from a “reason-for-termination menu,” listing topics like “DEI,” “China,” “Transgender Issues,” “Climate Change.” Use of the menu was “mandatory.” ... /3
If you recall, Judge Young found that DOGE had “force-fed” the cancellations to NIH, drafting cancellation letters, which no NIH scientist reviewed & which the NIH director approved “within [2] minutes”. ... /2
On Friday, in a 34-page unanimous ruling, the 1st Circuit denied govt a stay of Judge Young’s July 2 order declaring NIH’s cancellation of 100s of research contracts as “breathtakingly arbitrary & capricious.” Some interesting things... storage.courtlistener.com/recap/gov.us... 1/5
*@aclu.org *
Doc available here: storage.courtlistener.com/recap/gov.us...
In light of govt's claims about its deal with Venezuela, @ACLU asks Judge Boasberg to order govt to state whether it will "bring members of the class [of Venezuelans sent to CECOT under Alien Enemies Act] back to the US" for the legal process they were previously denied.
In 1 hour, join @benjaminwittes.lawfaremedia.org, @annabower.bsky.social, @rparloff.bsky.social, and @nicholasbednar.bsky.social for this week's Trials of the Trump Administration. They'll discuss yesterday's hearing in Abrego Garcia's criminal case, and more.
The fate of the Venezuelans being deported from El Salvador after months of imprisonment is uncertain. Many were FLEEING Venezuela due to persecution or torture from the Maduro regime. Will the regime again throw them in jail, or will their new public profile protect them?
Quite interesting:
Here is the full letter Comey, the daughter of former FBI director James Comey, sent to colleagues: www.politico.com/news/2025/07...
This is the case brought by Pedro Vasquez Perdomo, LAWCN, @ufw.bsky.social @chirla-org.bsky.social @immdef.bsky.social et al. Judge Maame Frimpong issued the TROs last week.
In the L.A. case in which a judge issued 2 temp. restraining orders barring ICE from stopping aliens without reasonable suspicion & from detaining them without access to counsel, 9th Cir DENIES govt stays (for now) because it didn't first ask the district judge, per Rules. ... 1/2
NEW: Kilmar Abrego Garcia’s criminal trial is set to begin on January 27, 2026 — though the government has said that it might deport him prior to trial.
And thanks to @allrisenews.com and @annabower.bsky.social for their close and thoughtful coverage of the case.
These people are absolute fucking ghouls. I've known Maureen since my first day of law school. We were lucky to have her in government. One day she'll be the U.S. Attorney for SDNY. www.nytimes.com/2025/07/16/n...
And with that....we're done. Thanks to all who followed along! @lawfaremedia.org is a non-profit media organization. We're only able to publish live coverage like this thanks to the generous support of our donors. If you can, I hope you'll support and share! ⬇️ givebutter.com/journalism/a...
Crenshaw: The MS13 proof does not itself meet clear and convincing standard...then you've got motivation to flee from ICE. Expand on that. McGuire: "Strange" situation. He does have an ICE detainer. More likely than not, he'll be detained. But court has to suspend disbelief that that will occur...
Crenshaw: Obviously, the court is going to look at the issues...I'm having a hard time understanding your argument that there is by clear and convincing evidence no conditions that could control the danger posed by the defendant...that's a pretty high standard.
Looks like discovery in @citizensforethics.org's suit against DOGE may be further delayed. SCOTUS stayed discovery not just until remanded consideration by DC Circuit but also till "disposition of the pet for a writ of certiorari, if such writ is...sought." storage.courtlistener.com/recap/gov.us...
HAPPENING NOW: Hello from the federal courthouse in Nashville, Tennessee, where Judge Waverly Crenshaw is set to hold an evidentiary hearing to decide whether Kilmar Abrego Garcia should be released from criminal custody. I'm here for @lawfaremedia.org. Follow along ⬇️
This is pretty strange. Pam Bondi trumpeted this sensational allegation at her press conference unveiling the indictment on June 6. Agent has still never checked it with the lead cooperator, who was supposedly present.
This is in the Edicson Quintero-Chacon case out of the MDGa. He's Venezuelan, ~28, shipped to CECOT 3/15. Govt alleges he's TdA; he denies. No criminal convictions. /2-end
Just seeing that a US mag judge in GA ruled 7/2 that she *won't* follow (for now) Judge Boasberg's ruling that US has no constructive custody over those sent to CECOT. She granted discovery, but stayed order till appeal to USDJ. To be fully briefed 7/30. 1/2 storage.courtlistener.com/recap/gov.us...
Govt's redacted but intelligible response, below, was provided in JOP case in DMd (J. Gallagher) concerning "Cristian," a 20yo Venezuelan sent to CECOT 3/15/25 despite class action order not to remove till asylum claim completed. storage.courtlistener.com/recap/gov.us...
Govt responded to the UN working group report suggesting US has constructive custody of aliens removed to CECOT: 1. Report is “confusing & unclear” 2. To extent unidentified Salvadoran official contradicts US position, he's wrong 3. ES has provided minimal responses re “Cristian” 1/2
This was part of the basis for it, but was not public until now.
2 tracks: 1. If 3d country gives U.S. diplomatic assurances that alien won't be persecuted/tortured: alien is deported (no process). 2. All other cases: if alien, without prompting, claims fear of 3d country, an asylum officer interviews him. If asylum officer rejects claim, alien is deported.
Here's ICE's 7/9/25 "guidance" regarding removing aliens to 3d countries. (Abrego Garcia's atty made it public today in the DVD case.) 1/2 storage.courtlistener.com/recap/gov.us...
To help visualize how #SCOTUS is handling Trump emergency applications, here's my chart of the rulings to date. Some of the trends rather jump off of the page...
This has been the talk of the removal defense community for days. Long story short, what the Trump admin is alleging is that a 1996 law made every undocumented immigrant who crossed the border illegally “mandatory detention” and categorically ineligible for bond, no matter how long they lived here.
Check out the linked Lawfare piece by Mr Parloff. An excellent and detailed summary of the Garcia case to date. There's fascinating details in here re. the flimsy nature of the government's case that I had not even been aware of.
Thanks so much, Robin!
You made my day!
What an amazing and enlightening article. I'm picturing the"government" tied up in one huge pretzel of lies, unsubstantiated innuendo and based on cooperating criminal witnesses who have already been granted more freedom & leeway than Mr. Abrego.
@rparloff.bsky.social this is an excellent piece of writing. There are so many people, named and unnamed, and so many allegations buried in multilevel hearsay, and you organized them so well, I didn’t have to backtrack once to figure out who is alleging what. Really top level.
During the bail hearing before the magistrate judge, the government called one witness: Special Agent Joseph. For Lawfare, @rparloff.bsky.social detailed the evidence the government introduced via Joseph’s testimony: www.lawfaremedia.org/article/what...