Lawfare Daily: The Trials of the Trump Administration, September 25

The Lawfare Podcast

The episode covers a wide array of legal developments involving the Trump administration's policies and subsequent judicial interventions. K

Key takeaways

• Judge Kelly issued a TRO against the Trump administration's attempt to revoke hard passes for CNN, MSNBC, and Politico based on due process violations.
• The D.C. Circuit rejected Anthropic's challenge to DoD restrictions on Claude, focusing on statutory definitions of 'manipulation' versus 'subversion'.
• The Supreme Court granted a stay allowing DHS to use the SAVE database for voter verification, though bulk searches are temporarily restricted by election-period rules.
• Former FBI officials are seeking to clarify Judge Cannon's injunction to allow testimony regarding the Special Counsel's report in a 'grand conspiracy' investigation.
• The DOJ is intervening in an EU case against Elon Musk and X regarding the Digital Services Act fine, arguing against piercing the corporate veil.

Main topics

• Trump administration media bans
• Anthropic and AI supply chain risk
• DHS SAVE database and voter rolls

Notable quotes

The theory was Fifth Amendment due process.

Conclusion

The episode provides a deep dive into how various judicial bodies are

Transcript preview

Speaker 2 (0:00) U.S. voters abroad, have you got your ballot yet? All states are now sending ballots to overseas voters. So if you want to vote this year, you should request your ballot right away. Go to votefromabroad.org and click request my ballot. Ask to receive it by email. Questions? Ask our support team directly. Don't miss this chance to shape the future. Don't delay. Votefromabroad.org. Speaker 3 (0:31) It's Lawfare Live, the trials of the Trump administration. I'm Eric Columbus, Lawfare senior editor, pinch-hitting for Il Capo di Tutti Capi Ben Wittes. It is 4 p.m. Eastern on July, on, sorry, on September 25th, and summer goes by so fast. And I am here with my fellow senior editors, Anna Bauer, Roger Parloff, and Molly Roberts. So one brief announcement before we begin, please make sure to tune in to Lawfare's YouTube channel at some point next week, starting Tuesday morning, to watch the second installment of Lawfare's Deportation, Inc., The Rise of the Immigration Enforcement Economy series, produced with SITU. We have a typically fun-filled, action-packed show for you today. And we are going to start off with some of the top news of the past week. And the top of the top is the Trump administration's ban on CNN, MSNOW, and Politico, which was recently... Speaker 3 (1:51) quashed by Judge Kelly in D.C. via a temporary restraining order. Why don't we start with Roger, who will bring us up to date on that. Speaker 4 (2:02) Yeah. So this all, as you probably know, this started at 3.04 p.m. on Friday with a tweet from Trump, President Trump, who said he would ban CNN, MSNOW, and Politico. He would pull their hard passes, which is the main pass that gets you onto the White House grounds. for White House correspondence. There's over 1,000 of them. CNN had 40. MSNOW had about 22, I think, and Politico had 16. There was no notice, no opportunity to contest, and the explanation was basically just that you are fake news. variations of that theme, fake news being his general term for critical news. Speaker 4 (3:12) The next morning it took effect. Reporters were turned away. They filed on Monday. They filed suit. The theory was Fifth Amendment due process. They hadn't been provided any notice or opportunity to object or defend themselves. And then two First Amendment claims, viewpoint discrimination and retaliation for First Amendment protected activity. All of those seemed like pretty slam dunks based on prior. Speaker 4 (4:01) case law. And that the theory was that most of the White House forums certainly are what's called a non-public forum. And that's, I mean, the White House itself is obviously not a public forum in the sense that anyone can go there and say, I have a First Amendment right to get in. But once the White House chooses to invite people in and provide press facilities, particularly places like the Brady Briefing Room, that at that point you cannot exclude bona fide correspondence arbitrarily and certainly not based on a viewpoint. Speaker 4 (4:55) on the basis of viewpoint discrimination. And that's sort of been. clear law in the D.C. Circuit since 1977, a case involving Robert Sherrill, who was a White House correspondent for The Nation. And in any case, the day before the TRO was to be heard, the government responded. And the response tried to sort of retroactively shift the focus. The response focused on, it claimed that Speaker 4 (5:48) These three organizations had violated standards of professionalism and decorum, particularly by allegedly publishing sensitive and classified information, raising national security concerns. This was the first any of these theories had been mentioned. Trump had mentioned none of them on Friday or Saturday or Sunday or Monday. Speaker 4 (6:15) And then at that time, they sent each of the, the government sent each of the news organizations a letter. And it's an odd letter. It has no letterhead. It's signed only by White House press office, not by a person. And they list for each maybe three or four articles that allegedly offended this vague standard. Speaker 4 (6:44) And they're sort of cagey about whether they're saying what's wrong with it. Is it false? Is it classified information? Is it sensitive? Exactly what's wrong with them? Speaker 4 (7:04) They also gave the organizations for a first time, they said, you have until Friday to respond to this as if the pulling of the hard passes had not been final. And so it was sort of a post-deprivation stab at due process. Judge Kelly rejected all of these arguments. Speaker 4 (7:34) on the 24th. I think that's yesterday. And he took the easiest path, which was due process, violation of due process. He also noted that Speaker 4 (7:53) And he relied on that Sherrill case going back to 77 and also a case in 2020 involving Brian Karam, who had a dispute, had words with Sebastian Gorka in the Rose Garden and a few weeks later was suspended for 30 days. There was another case where the D.C. Circuit ordered his. that he had been violated due process. Speaker 4 (8:26) I should also say one last thing. Another striking thing about the government's papers is that they understood that Judge Kelly was bound by these D.C. Circuit precedents, both in the Sherrill case and the Brian Karam case. But they said they thought they were both ought to be overruled. So it sounds like they seek, are going to eventually seek, may seek, an end bank review or a Supreme Court review to try to overturn 49 years of law, at least in this district. Speaker 4 (9:12) And they also relied quite a bit on the AP case, which is another you may remember when this term, the AP was excluded from, not from, they didn't have their White House hard pass pulled, but from smaller locations in the White House, the Oval Office, the Air Force One. certain White House pool. They were pulled from certain White House pools. And I think I'll let Eric talk about that or maybe some of my colleagues. I will say that that case is still being litigated. And the ruling that they were relying on, which was a two to one split decision, was in a stay, a stay order, and it's unpublished and has no bind, it's not binding precedent. But anyway, all of these are very live issues that are likely to continue going up. And then, so I think I should give other people a chance to. Yeah. Speaker 3 (10:31) So I, I actually in a, in a. Prior life, I worked on the AP case. I was at the Knight First Amendment Institute, and we did an amicus brief in support of the Associated Press. And the Associated Press was, Trump was mad at them for, it's amazing the stupid times we live in. He was mad at them for refusing to. refer to the Gulf of America. They decided to keep calling it the Gulf of Mexico. And so he kicked them out of the pool that has access to the Oval Office. And the district court, Judge McFadden, who, like Judge Kelly, was a Trump appointee, said this was impermissible viewpoint discrimination. The D.C. Circuit 2-1 stayed that injunction. basically on the theory that these are, the Oval Office is a kind of capacity-controlled space and the president retains much more discretion about who to invite into his office, basically, than to a place like, say, the White House grounds general or the briefing room where there is much less of a limit on space. And you can have... much more generally applicable terms for that. So if someone can satisfy, then they get admission regardless of their viewpoint. Speaker 3 (12:08) One thing that I found interesting about Judge Kelly's opinion is that he did not mention the First Amendment at all, not even the phrase First Amendment. And so it really was limited, and the relief he granted was really limited to the restoration of the hard pass. So what happened last night at one point apparently was that MSN, MSNOW, and I think also CNN were denied admission to some... ceremony at the White House with Premier Xi of China. And they had applied for credentials for that. And apparently Stephen Chung denied it to them. He's the White House communications director. That technically is not a violation of Judge Kelly's order because Judge Kelly's order applied only to the hard pass issue of access to the White House grounds. I assume they might amend their complaint to raise this as well. And I think you'll see the First Amendment issues, if they do that, the First Amendment issues may come kind of roaring back in the briefing and hearing on the preliminary injunction for a preliminary injunction. But at this point, it was just a temporary restraining order. Speaker 4 (13:21) Molly, Anna, do you guys have any thoughts on this you want to add? Speaker 5 (13:26) Yeah, sure. I mean, I think kind of two things. One, it definitely provoked a lot of conversation about wherefore national security deference. And, you know, it was interesting that the judge here basically said, well, I can't credit that. But a lot of the reason that he said it or, you know, reason that he cited was certainly President Trump wasn't talking about national security before this, which. you know, suggests that when the connection is as thin on the facts as it is here, I mean, it doesn't suggest anything. It's one judge. But, you know, at least some judges are willing not to lend credence to that. But. I'm curious and I'm curious what others think about, you know, let's say that President Trump had said national security from the get-go. Let's say that they had done a better job when explaining the problems with the articles than, you know, using one that, and this is kind of a notable fact that I think stuck out to all of us, but citing one about the Iran war where a senior administration official was... quoted and saying that that's an issue because it's sensitive national security information. And then it turns out that it was J.D. Vance who did a background call with reporters, right? So I think it's interesting to see, okay, yeah, so it falls short when you do this. And then there's, of course, the question of if you push the limits on invoking national security like this, do you... lose credibility? Does that erode the presumption of regularity around national security justifications in other cases? So I'm kind of interested in that. And then, yeah, again, I'm interested in if you do a little better of a job at it, I'm kind of curious, curious whether this judge or another judge would be more inclined to take it seriously. And then, yeah, I mean, I think the other thing worth noting, and it may have... genuinely just been miscommunications was there was kind of a flap yesterday morning where it looked like the administration wasn't complying with the order, which had been issued overnight around midnight because the reporter showed up at the White House and they were denied their passes, the hard passes. And then the plaintiffs said, we want an emergency hearing. They're not complying. And Judge Kelly ordered the. government to respond by 1230. And they responded and they essentially said, no, we said they should be restored. And it was just working its way through the system. And again, that could very well just have been miscommunication, but there was sort of a moment there where people were worried about flat out non-compliance and, you know, at least speculating after that. Well, you know, maybe they always intended to comply eventually, but maybe the delay was a little bit of, you know, thumbing their nose, but there's no, no evidence for the fact that it was. So, yeah. Speaker 3 (16:17) Okay. Speaker 3 (16:20) Next on our list of breaking news, the D.C. Circuit today in a two-to-one decision rejected a challenge by Anthropic to Department of Defense's exclusion of Clawed from its supply chain. Roger, do you want to lead off on that one? Speaker 4 (16:44) Sure. Yeah, this was... Speaker 4 (16:49) It was a two-to-one split panel. The majority was Naomi Rao and Greg Katzis, both Trump appointees. And the dissenter was Karen LeCraft Henderson, who is also normally very conservative. She's a George H.W. Bush appointee to the— Appellate Court, and I think Reagan appointed her to the district court originally. And it involves, you know, there are these two statutes that relate to supply chain risk, this concept for, it's really aimed at foreign adversaries. Speaker 4 (17:41) bad actors, either state actors or otherwise. And one was enacted in 2011 and one was enacted in 2018. The first one was the one that was challenged in California and where Anthropic won a few weeks ago. before the district judge. This one, which applies, that one applies only to DOD. This one was enacted later to protect infrastructure and power grids from malicious actors. Speaker 4 (18:33) That might not be under DOD. It's broader than the other agencies, but it includes DOD too. And this one, you channel your, if you seek judicial review, you have to go initially to the D.C. Circuit Court of Appeals, which is obviously unusual, but that's why it's here. So the questions seemed, you know. at least superficially, almost identical. And you had a much more conservative panel here than the more liberal judge in California. That wasn't obviously the basis of the stated basis of the difference. As it worked out, it's mainly a... a difference of, there are small differences in the definition of supply chain risk. Speaker 4 (19:39) In the case in California, the definition is the risk that an adversary may sabotage, maliciously introduce unwanted function, and otherwise subvert the design, integrity, manufacturing, production, distribution, installation, blah, blah, blah, of a covered system. The definition... Speaker 4 (20:08) in the statute before the DC Circuit is the risk that any person, not an adversary, but any person may sabotage, maliciously introduce an unwanted function, extract data, and otherwise manipulate the design, not subvert, but manipulate. Now, to many people, Those are both describing some very malicious and sinister conduct, which was not present with Anthropic, which was just a sort of an anodyne contract dispute. But, and that indeed is how Henderson interpreted it. But the majority said that the word adversary was critical. And similarly, that the word subvert was significant. So they found that the absence of the word adversary in this statute, the absence of the word subvert, that all that was needed here was manipulation. Speaker 4 (21:30) It didn't require a malicious purpose. So and they wrote that they said that they were not in conflict with the district court in California. We have no quarrel with the northern district's conclusion that the use of the critical noun, quote, adversary, combined with the sinister strings, sabotage, maliciously introduce and otherwise subvert. indicate that bad motive is required to support a designation under that earlier statute. Judge Henderson said... Speaker 4 (22:09) She did what's sort of, she said, according to today's decision, this is in her dissent, the contract will have a choice, agree to the secretary's demands or risk being designated a national security threat. She also did, she quoted the Senate report on what the legislative history was. And of course, that's a... you know, a no-no to textualists. You're not supposed to do that. But it too, she said, the history supports anthropics reading and it refutes the view that manipulation of a covered article encompasses anything like the conduct that under today's holding gives rise to a supply chain risk. Dash, that is. A contractor's honest and upfront enforcement of restrictions on a covered article's use disfavored by the government. Molly, you read it too. Did you have a... Speaker 5 (23:18) No, I think it's a good rundown. I was more persuaded by Judge Henderson's grammatical analysis of the statute where she gave an example of if you had a rule at a library that said do not shout loudly, talk on the phone, play music, or otherwise disturb others, quiet music through headphones is probably okay. So the idea is that words from part of it are reaching other parts of it and that maliciously did reach these other parts. Yeah, I found that more persuasive. And I definitely thought that it was interesting that the D.C. Circuit took care to say that this isn't in conflict with the ruling from California, even though, you know, again, I think that it's more persuasively read that it is. But that also makes it, I think, a little less clear what we should expect to happen going forward. And Anthropic has said that it's looking at all its legal options and it's possible that they'll try to get cert, but there's not, according to the D.C. Circuit, a circuit split. They could also petition for a rehearing on Bonk. So, yeah, I'm curious to see what will happen. I think, you know, it