Lawfare Daily: The Trials of the Trump Administration, September 11

The Lawfare Podcast

In this episode of Lawfare Live, Benjamin Wittes and senior editors discuss a range of legal developments under the Trump administration, including the first-ever case in the Alien Terrorist Removal

Key takeaways

• The Alien Terrorist Removal Court, established in 1996 but inactive for decades, has now completed its first case, raising concerns about due process despite the defendant's concession.
• Joe DeGeneva resigned from the 'Grand Conspiracy' prosecution after failing to secure any indictments, citing ethical issues with pursuing cases without sufficient evidence.

Main topics

• Alien Terrorist Removal Court (ATRC) first case
• Joe DeGeneva's resignation from 'Grand Conspiracy' prosecution

Notable quotes

The government's main allegation was okay she's going to flee to Afghanistan and now uh It's ended up that the judge has ordered her to be deported back there anyway.

Conclusion

This episode underscores growing concerns about executive overreach, secrecy in national security proceedings, and

Transcript preview

Speaker 6 (0:00) Hi, friends and fellow students. Americans living abroad can legally vote in the U.S. election. Register or get tailored support at VoteFromAbroad.org. Look, state deadlines are super close, so don't waste another second. Go to VoteFromAbroad.org now and click Request My Ballot and ask to receive it by email. All you got to do is fill it out and send it back in. Don't miss this chance to shape the future. Don't delay. VoteFromAbroad.org. Speaker 2 (0:34) It is Friday, the 11th day of September, 2026. It's 4 o'clock p.m. in Washington, D.C. You are watching Lawfare Live. The trials and the tribulations of the Trump administration. I am Benjamin Wittes, editor-in-chief of Lawfare, and I'm here with four Lawfare senior editors, Roger Parloff, Molly Roberts, Anna Bauer, and Eric Columbus, and one Lawfare Associate Editor. named Peter Beck. We're going to start with Peter Beck because the Alien Terrorist Removal Court has finished its first case, and Peter Beck is all over the Alien Terrorist Removal Court. You can't file a piece of paper in the ATRC, as it is called, without Peter Beck grabbing it. and reporting on it, you know, it's a new court. It's only 30 years old, but it's now finished its first case. So at this rate, you know. you know, it'll have 10 cases in its first 30 years. So 300 years. Peter, what is the resolution of this? Is it going to turn into like a reality show live from the ATRC? What's going on? Speaker 7 (2:06) Hello, hello. Well, I was really hoping that it would. And so what happened today was The ATRC has had its first case, like Ben said, for the first time in 30 years. And for listeners who aren't aware, the ATRC was created in 1996 as basically this secret court where the government could present classified evidence. And it functions a little bit like an immigration court, but the crucial differences are that it's presided over by a federal judge instead of an immigration judge. And the government can present classified evidence for national security purposes to remove suspected non-citizens who have kind of terrorist affiliations or ties. So it was created in 1996. And then for about 30 years, the Justice Department, for a number of bunch of reasons, just never really brought a case until about two months ago. It just so happened that... After 30 years of being asleep, the Justice Department kind of remembered that the court existed and it filed its very first case, which I got really excited about because I really love wonky courts. And we learned a few weeks after that in a public hearing that the case had to do with a woman whose son and son-in-law, one of whom has already pled guilty and the other whom her son-in-law. is accused of participating in an ISIS-inspired Election Day plot. It was to allegedly commit a mass shooting on Election Day 2024. And the Justice Department said at the time that this woman, as kind of the matriarch of the family, had conspired with her son and son-in-law to... Speaker 7 (4:03) kind of help this plot happen in November 2024. So that happened about two months ago, and then things went really quiet for a month. And then we found out today that the woman agreed with the government that the allegations that she was both a non-citizen and then that she supported ISIS, she conceded both of those points and basically agreed. for the government to allow her to be deported back to Afghanistan. Now, two things are a little bit remarkable. A month ago when the case first started, her attorneys, who both are members of the Federal Defender's Office out of D.C., they both made a huge point of saying, you know, the ATRC, the government, has all of this power to keep everything classified and confidential. Speaker 7 (4:58) Super unconstitutional for those reasons. And we're going to basically make a huge show of this whole thing, challenging everything that they possibly could. So I was excited because I thought that it was going to be a little bit more of a legal fight. What happened in the time since is, as I said, she agreed to go back to Afghanistan. One of the central. um allegations in the theory that the government was making that she supported isis was this kind of alleged plot that as her son and son-in-law were carrying out this mass attack in november 2024 that she had planned to relocate with the rest of her family to afghanistan and so it's it's come to the be this interesting turn of events where the government's main allegation was okay she's going to flee to afghanistan and now uh It's ended up that the judge has ordered her to be deported back there anyway. Speaker 2 (5:55) So it sounds like to the extent that the ATRC has due process problems, this case may not be a particular example of them. Do you find that there's any reason for concern that some great injustice was done to this woman? Speaker 2 (6:20) I'm slightly concerned because Speaker 7 (6:22) the more that I read about it and talk to people who are involved, she did not sound like the great mastermind of an ISIS-inspired plot that the government has made her out to be a little bit. Speaker 2 (6:36) Well, that's not really the standard of whether you get to stay in the United States, right? That's true. Speaker 7 (6:42) That's true. But with that said, I think that because this case was successful, Speaker 7 (6:48) The Justice Department is likely to bring it again in another kind of gray area example. And I'm sure that we'll finally get that kind of broader constitutional fight later down the road. Speaker 2 (7:01) Yeah. So when do we know when she was deported? Speaker 7 (7:07) So I believe August 20th or maybe several days after that was when the removal order came down. And then the government actually didn't fly her out of the U.S. like it does on some immigration and some immigration cases. It sounds like they just said, OK, we don't have any diplomatic relations with Afghanistan. And so we're going to leave it up to you to find your way back there. Speaker 2 (7:34) How do you do that if you're in detention? I mean, it's not like you can just kind of buy a ticket, right? Speaker 7 (7:41) I'm not sure. They may have just dropped her off at the airport and said, or maybe even bought her the ticket and said, we'll see you Speaker 6 (7:49) in Speaker 7 (7:50) the next life. But she's no longer in the United States. Speaker 2 (7:54) Interesting. All right. Well. Peter, we will see you in 30 years at the time of the next ATRC case. And thank you for your diligent coverage of the court. You are now one of the very few people who's covered the 100 % of a court's litigation output over time. That is a record that will never be beaten, and it will probably very seldom be tied. So savor it. And, you know, as the court mounts cases over the decades, make sure you keep on it so that you can always say, I've covered, you know, I've been to 100 % of the ATRC's hearing. Once it gets to be like five or six, you're going to be the only one who's going to be able to say that. Speaker 7 (8:55) I'll be there in 2056 when we get round two. Speaker 2 (8:58) Yeah, I mean, there aren't going to be a lot of people who live long enough to be at the third or fourth. So just, you know, keep on it. All right. This brings us to item number two. Speaker 2 (9:24) Yes, it is time to talk about the grand conspiracy, which keeps grand conspiracizing while we are all sleeping. Molly, Anna, I don't know which of you to go to on this, but Joe DeGeneva, who was once a serious person, became... took over responsibility for this very important grand conspiracy case, along with his wife, Victoria Tunsing, who also used to be a serious person. Speaker 2 (10:11) And DeGeneva has now resigned because he's discovered that there is a lack of evidence underlying a case that he, as I recall, announced publicly could be indicted in a matter of days or weeks and that, you know, they should, the defendants should all be in jail already. So walk us through what happened. Molly, why don't you get us started? Speaker 3 (10:39) Yeah, sure. So I think that you said the headline, and we only know a little bit more than that, but Joe DeGeneva has resigned from prosecuting the grand conspiracy case. And he had indeed said when he got down there a few months ago that he could bring indictments within a month. Now he's leaving, having brought a grand total of zero indictments. And Speaker 2 (11:05) how many months? Has he been in office? I Speaker 3 (11:08) think it was about five months. Does that sound right, Anna? I think it was five months. You're muted. Speaker 4 (11:15) It was April, I think, he was appointed, right? Or maybe a little bit before that. Yeah, Speaker 3 (11:21) so Speaker 4 (11:21) four or five months. Yeah, Speaker 3 (11:22) that sounds Speaker 4 (11:22) like right. Speaker 3 (11:23) Yeah, yeah. So a while, certainly more than a month. There's no doubt about that. Speaker 3 (11:30) He did say to the New York Post yesterday that essentially when you don't have evidence and you are trying to bring indictments, you have an ethical problem. And so this was quite striking from someone who was brought on to this case. It seemed, well, because of two things. One, his promise to bring these indictments within a month. And two, his years and years and years of saying on. Fox News, other conservative media, that basically he believed the grand conspiracy was real. And as you said, Ben, that these people should indeed be in jail. He has walked back what he said a little bit since then. He has said that there is evidence to back up. all the legal theories that they have, but that it just requires time and that they were proceeding smartly and would have continued to proceed smartly. And the reporting suggests that there were clashes with Maine Justice about him having maybe created unrealistic expectations and then about him having been perhaps slower than Maine Justice wanted and getting stuck down rabbit holes. Anna, anything to add? Speaker 4 (12:45) Yeah. So, I mean, the latest that we've got is Ryan Riley at NBC News had a conversation with Joe DeGeneva today. And I can't stress enough. The one thing that Molly and I know about Joe DeGeneva is that he just wants to talk and talk and talk. He can't help himself. So I think eventually the story is going to come out, or at least his own version of it will come out. And what he told Ryan this morning is... Speaker 4 (13:23) the days leading up to my resignation are shrouded in the secrecy of administrative behavior and they will remain so. But then he went on to say, I want to underscore- But not so Speaker 2 (13:36) shrouded that I'm not going to talk about them. Right, Speaker 4 (13:39) Anna's prediction is that they will not remain so to the extent that they're even still shrouded. And also, I didn't even add that he started this by saying, As a courtesy to the department, and let me say, as a courtesy to the department, I am not going to discuss that. And then he goes on to say it's shrouded in the secrecy of administrative behavior. But then he goes on to discuss it. And he says, I want to underscore that we were following the principles of federal prosecution all along the way. And we did that. We were moving smartly. And I underscore, we were moving smartly. And then things, you know, got where they got. And he said, the people in the U.S. Attorney's Office in Florida who are running this case have done a phenomenal job under the worst of circumstances. I have no doubt that I was going to be able to take every one of these cases across the finish line because we had put them in perfect posture to proceed. And then he went on to say something. Gosh, where was it? He went on to say a bunch of stuff. He said he loves Kash Patel, that the FBI was really great, and he only wishes that everyone involved had been as good as the FBI, Speaker 3 (14:52) which is interesting. It sounds like there was indeed a clash at Maine Justice. He talks also about lanes having gotten crossed. Everybody was in their lane, and then the lanes got crossed. And there'd been reporting prior to this about the fact that Maine Justice had sent down some prosecutors from D.C. to help him. And that he had maybe sidelined those prosecutors. I think that might have been the thing that he said would be shrouded in secrecy when he was asked about it. Speaker 4 (15:18) Right. And he, at one point, I thought, I can't find the quote at the moment, but I thought he's mentioned something to the effect of having a lack of resources. Yes, he did. And that was interesting to me and stood out to me because I was reading Alan Foyer's piece in the New York Times. And Alan quoted, or not quoted, but... attributed information to a Justice Department official in which that Justice Department official said something to the effect of, you know, there was no, we gave, we gave DeGeneva all the resources that we could even send people down from Maine Justice or from D.C. to help him out. You know, there was no denial of giving him access to resources. So it, It's both sides of this from the senior administration officials and then the DeGeneva team seem to have a difference of opinion or perspective on kind of what exactly went down here. And I think we'll get more information in the coming days and weeks. Speaker 2 (16:31) Okay, so I want to focus on... what I think the real problem is with the Graham conspiracy case, because I think you could throw a lot of resources at this case and you could not cross lanes and you could, you know, the FBI could behave well and main justice could behave well and you could have a first rate team on the ground and you would still have this basic problem that the entire thing is bullshit. And. And so I just want to remind people that the theory of the grand conspiracy is that there's an agreement across time to prevent people from voting for Donald Trump by lying about all kinds of things like making up Russia collusion and, you know, causing his. Speaker 2 (17:36) making up crimes that he committed involving classified information and raiding his, and then, you know, impeaching him for Ukraine stuff. And that somehow all of these people who may not have known each other existed at various times, all entered into an agreement to deprive Donald Trump of his rights and deprive voters of the ability to vote for him. And the problem with this, as Molly once wrote, is, you know, this basic idea of linear time and also that it's not true. And I don't think that you can correct that problem with resources or with, I mean, the problem is the whole thing is completely delusional. And so I guess the question that I want to ask is, is. The resignation of Joe DeGeneva really just to kind of put his head between his, you know, tail between his legs and kind of admit that actually I was kind of bullshitting the whole time. And now that I'm responsible for things, you know, I don't know evidence of any of this because it isn't true. And so you kind of make up. procedural and bureaucratic nonsense to explain it. But the real explanation is that like, okay, this works as a Fox News set of talking points, but even at a level like that you can make up about Jim Comey and seashells or Letitia James and mortgage fraud. You can't write this down on a piece of paper because it actually makes no freaking sense. Speaker 3 (19:29) Yeah, yes. I mean, I think it was very unclear where the crime was in any of it the whole time. I mean, apart from the John Brennan false statements part of it, there was no crime. There was just the conspiracy against rights, which doesn't work if you're not able to create, as you said, the viable case. that there was an agreement across time between all these people over the course of 10 years, many of whom didn't know each other, a lot of whom didn't know each other, and the facts just aren't going to be there for that. And, you know, they said when Anna was reading from that Ryan Reilly piece, she quoted DeGeneva saying all these cases, which confirms, I think, a report. that the Guerin conspiracy had been broken up into a series of smaller conspiracies. And I think part of why they did that is because you can't establish an agreement, but I'm not even sure you can establish the smaller agreements. And especially if the idea is that there has to have been some deprivation of rights, I don't really understand what in each of those. smaller conspiracies, what rights the president is supposed to have been deprived of in a way that you'd be able to secure an indictment. And by the way, once you break it up into smaller ones, you have even less of a claim to a jurisdictional hook in Eileen Cannon's district or, you know, a grand jury in Florida at all. You end up with a D.C. grand jury and then good luck getting your indictment. I don't think it means that Joe DiGenova is going to be responsible now and stop bullshitting. I think maybe he'll go back to bullshitting on Fox News. Speaker 2 (21:03) But I do think that. And it'll have the added layer of, you know, if I'd been there, we would have done blank. Right. And all would have been and we would have gotten gotten this done. Well, but that's exactly Speaker 4 (21:18) what he was saying right before he was appointed to do this. He was saying, oh, if Pam Bondi just would have appointed me when she was supposed to appoint me, we would have had indictments two months ago. And then he gets into his position and. Five months later, he resigns because there's nothing, there's no there there. Speaker 3 (21:36) Yeah. And I mean, I think that is what happened, right? That there is no there there, but I just don't