Lawfare Daily: The Trials of the Trump Administration, September 4

The Lawfare Podcast

The Lawfare Podcast discusses key legal developments involving the Trump administration, focusing on Judge Boasberg's denial of a motion to

Key takeaways

• Judge Boasberg denied the State Department's motion to dismiss Lawfare's lawsuit under the Case Zablocki Act of 1972, affirming public access rights to international agreements.
• The court recognized informational injury as sufficient standing for journalists seeking transparency on foreign policy documents.

Main topics

• Lawfare Institute v. U.S. Department of State
• Transparency of international agreements under the Case Zablocki Act

Notable quotes

"It is, you know, it's almost like it's not the most important thing that happened this week, but it is the most important thing to me."

Conclusion

While Lawfare achieved a significant procedural victory in its lawsuit against the State

Transcript preview

Speaker 2 (0:00) It Speaker 3 (0:23) is Friday, September 4th, 2026. It is four o'clock p.m. in Washington, D.C. And I got to tell you, folks, we have won. Lawfare has survived a motion to dismiss in Judge Boasberg's court. And the press is ignoring it. It is, you know, it's almost like it's not the most important thing that happened this week, but it is the most important thing to me. And so we are leading the show with it. Eric Columbus, why don't you describe for the audience our spectacular victory that is just taking the legal system by storm? Speaker 1 (1:14) Sure. So, Speaker 1 (1:19) This is a lawsuit that we, meaning the Lawfare Institute, meaning our lawyers, meaning before I got here. Oh, actually, no, I think probably not before I got here. I think it was this Civil Action No. 26-798 suggesting it was filed in 2026. A lawsuit against the Department of State. involving something known as the Case Zablocki Act of 1972, which I'm sure every listener has committed to memory. That act requires the State Department to make public, generally speaking, international agreements that the United States enters into. And there are some exceptions for classified documents, things involving the military and the like. Speaker 1 (2:08) Otherwise, these are required to be made public within 120 days of going into force. Now, this does not provide a statutory cause of action, but the Administrative Procedure Act basically does, in general, allow... plaintiffs to go into court and sue where there is a final agency action that is not – that an agency is obligated to do something but it doesn't do it. And this was also being used in litigation by journalist Katie Fong to obtain certain Jeffrey Epstein files. Now, the – Speaker 1 (2:57) State Department has, we alleged, our complaint has not made public the vast majority of international documents that it was supposed to make public during this second Trump administration. And the State Department moved to dismiss our lawsuit, challenging us both on standing and on the presence of any official agency action. They're not... Did they call us Speaker 3 (3:27) an old lady walking Speaker 1 (3:30) her dog? They did not. Well, we did not have an aesthetic injury in this case because there's really nothing aesthetic to appreciate about international agreements. We had an informational injury basically alleging that we – The statute is supposed to provide us with certain – provide the public with certain information and that we are not just any person who is deprived of that information, but that we are journalists who report on, among other things, international affairs and that it's extremely important for us to have this information. We were not – the State Department said that we had not sufficiently alleged standing and – It's not entirely – their arguments are kind of hard to follow. And the district court rejected them. The State Department also said, well, we haven't proven that there is final agency action in this case because who knows? Maybe we're going to eventually put these things up and these documents up. And the court said, well, basically, no, you have – made quite clear over the past year and a half that these documents have not gone up. Now, we also asked for some type of injunctive relief to require the State Department to put documents up on an ongoing basis in compliance with the statute. And the judge... Speaker 1 (5:09) granted the State Department's motion to dismiss that part of our complaint, holding that we... We never cared about that part anyway. We had not established that there was... We had not made sufficiently concrete an allegation that the State Department had a policy or a commitment to not doing this going forwards beyond the fact that they just had not done so so far. Speaker 1 (5:41) So, Speaker 3 (5:42) important question. We have now survived the motion to dismiss. Speaker 3 (5:49) What happens now? Are they going to appeal this all the way to the Supreme Court so that we'll have like Lawfare v. Is it Lawfare v. Rubio or Speaker 1 (5:59) Lawfare v. Department of State? Well, they're both defendants, but the caption in Judge Boasberg's opinion is the Lawfare Institute versus the United States Department of State at all. Well, I Speaker 3 (6:15) think we should all call it Lawfare v. Rubio. But anyway, do we assume that they are going to appeal it or will they now, seeing the writing on the wall, reading Judge Boasberg's, Chief Judge Boasberg's, very learned opinion that they can't possibly poke a hole in, are they going to comply and release the materials? What happens now? Speaker 1 (6:45) Well, I think we would need to establish which specific documents we believe they are withholding, things that are... that were within the scope of the case of Blocky Act and that have not been put up within 120 days of entering into force. So I think we would need to establish that and then, I assume, move ourselves for injunctive relief at this point, because this is just an emotion to dismiss and then force them to do something. I don't think that at this point. the State Department would appeal. It's not entirely clear to me that they could appeal at this point, given that they have not been commanded to do anything. And this order does not resolve the litigation. Speaker 3 (7:36) All right. Well, I will just say it's a great day for the Lawfare Institute. Our victory is not total yet, but on we march. And, you know, it's not always that we get to feature ourselves at the beginning of Lawfare Live, the trials and tribulations of the Trump administration. But folks, That is what you are watching. And I am here with not one embarrassed senior editor of Lawfare, but four embarrassed senior editors of Lawfare, Molly Roberts, Roger Parloff, Anna Bauer, and Eric Columbus, whom you've already heard from. We got a lot of stuff to get through today. Molly. We've had actions on the elections executive order. Have the litigants had a victory as resounding in that case as we have seen in ours? Speaker 4 (8:41) If you're not quite as resounding. So we talked about this on a separate Lawfare Live earlier this week. And over the past few weeks, we've been talking about the developments, which are coming fast and furious because after the Supreme Court stayed in injunction, another injunction got in place pretty quickly. Well, another injunction was already in place. Then a new TRO was put in place in Massachusetts. So I guess what's most important to talk about. now is what happened yesterday, which was a hearing in the federal district court in Massachusetts before Judge Indira, I've been pronouncing it wrong, not Indira, it's Indira, I learned in the courtroom, Talwani. And that was about whether she should issue a preliminary injunction, a new preliminary injunction now that the USPS final rule is out. So that's what the hearing was about, but it was a little odd because she already had this temporary restraining order in place. And the first thing that the Justice Department lawyer said was, if you don't rule today from the bench, we are going to right away appeal the TRO that we've already appealed to the First Circuit to the Supreme Court. And this is odd because TROs aren't generally appealable, but she indeed did not rule from the bench. She said right at the outset she wasn't going to. And they did indeed appeal that to the Supreme Court. So we're in, and I'll talk about the hearing and what happened in it in a bit, but as far as where we are, we're in a sort of weird posture where the replies to this appeal to the Supreme Court of the TRO, Justice Jackson, who's in charge of the First Circuit, has said are due on Tuesday, but Judge Helwani said she was going to try to move really quickly on this preliminary injunction. If she does that, the TRO is gone. It gets dissolved. And then we start over with this injunction, which presumably the Justice Department will then appeal that to the First Circuit or directly to the Supreme Court. So kind of odd that there's the need to appeal the TRO in the meantime, but I would. I mean, and so I suppose the matter is before the Supreme Court, but I'm not sure that that's exactly the right way to look at it. I think the more immediate place to look is at Judge Helwani to see what she does, whether she issues a PI, which judging by the hearing, she probably will. And then I would expect that to move up through the courts. So that's what's happened. And yeah, then I could talk about the hearing a bit if you like. Speaker 3 (11:14) By all means. All Speaker 4 (11:16) right. Sounds good. So I think that the most interesting part of the hearing was the way in which it revealed how unprepared the federal government is to launch this postal service portal to which states are supposed to submit their lists, despite the fact that they're alleging irreparable harm from having a temporary restraining order. in place or that they would have irreparable harm from having an injunction in place preventing them from launching the portal. And that came up in a number of contexts throughout the hearing. We talked in the last Lawfare Live about how we also have a whistleblower complaint that suggests that the development of the portal has been haphazard and sloppy. And so the discussion of the portal and the hearing focused both on, well, Is it going to cause disenfranchisement because it doesn't even seem to be ready? She didn't address the whistleblower complaint because it's not officially in the record. And she kind of mentioned being in a political time. But she did discuss the idea that whole batches will be rejected and sent back to the states and that could cause disenfranchisement. But she has a lot of declarations from the plaintiffs here. It's a combined, it was a hearing of combined, it was a combined hearing of two cases. One involves voting rights groups, and one involves 23 states and the District of Columbia. So she has a lot of declarations from them explaining why, in fact, every state, they believe that this could cause disenfranchisement, regardless of whether states say that they're able to comply. And that was part of the back and forth, too. There was a lawyer there for the 12 intervening states, and they kept saying, we can comply. So she has lots of declarations from... people saying this is going to cause a lot of trouble. And she made a point of saying, I have very little from the Postal Service. I have very little from the states who think that they will be able to comply. And that's one of the reasons I'm quite concerned about disenfranchisement. So that was kind of one of the focuses and sort of what we learned about what to expect will actually happen based on the record. And then another focus was, is this portal even ready? And she repeatedly pressed the government lawyer. the Justice Department lawyer, on whether the portal was ready. And he repeatedly said he wasn't able to make specific representations. Ultimately, she pushed him to file something by 3 p.m. that day, pushed the Justice Department to. And they got a declaration from someone in the Postal Service saying it will be ready, quote unquote, sometime next week, which I doubt was terribly reassuring to her. It was rather vague. When are the Speaker 3 (13:58) first... mail-in votes being sent out for the election? Speaker 4 (14:02) I think that there has, I believe that this week, states are beginning to transmit their ballots. I thought North Speaker 3 (14:08) Carolina was today. Yeah, North Carolina, Speaker 4 (14:10) exactly. It's, yeah, North Carolina, I think, I think it was, may even have been yesterday or may have been today. It was this week. And so, I mean, you know, this is the other thing that I guess I should mention that's kind of like galling about the government's position in this case is that, you know, the reason the Supreme Court said it wasn't right was There wasn't a final rule yet. And that's what the government had been saying. It's too early. It's too early. And now the government is saying, well, you can't do anything to us now because it's too late. The elections are here. And if you tell us we can't do this now, we don't have enough time to protect the integrity of the elections. But, you know, of course, the flip side of that for the states is we have no idea what's going on. We don't know whether we have to comply. We may end up trying to comply with this unlawful order, which, you know. Again, it causes chaos if you have to completely redesign how your ballots are formatted, regardless of whether USPS is ultimately enabled to reject ballots. It could cause harm just the fact that the process has been thrown into disarray and people who think that they're, you know, who are ready to get their ballots sent out can't do it yet because there's a delay. So, you know, I think that kind of the bottom line is regardless of what happens, I'm sure this is done. some degree of damage already. Speaker 4 (15:28) I guess the big takeaway on the portal is that it didn't really seem ready. Another takeaway for me, or what I found interesting, was the intervening states, their lawyer said, no matter what you do here, well, he said, we think that there isn't standing for the plaintiffs, the organizational plaintiffs. And so there's no recourse really for the people who are in states whose states aren't suing. And no matter what you do, either because you find they don't have standing or because you just use your discretion, Judge Talwani, we want you only to apply this to states that, so if you issue an injunction that says that USPS can't do any of this, we want you only to do it in states that have shown, that have proven, we want the burden of proof to be on them that there's going to be disenfranchisement. And otherwise, we want to be able to comply. And she said, why do you want to be, why is that so important? Why do you have to be able to comply? And you're allowed to make compliant ballots if you want. So what do you mean? You want it to be allowed that USPS can reject those ballots? And he said, yes, that's exactly what we want, because otherwise cities and counties within Texas might send in ballots that are noncompliant. And that would be bad and that would hurt election integrity. And she had framed it as, so you want your voters to be disenfranchised? You want there to be less of a right to vote in your state? And he effectively said, well, we don't believe there's a risk of disenfranchisement. So no, but we do want USPS to be in charge. So she kind of altered her question. And she said, OK, why would you want election integrity, which is what you're saying you'd like in your state, to be decided by the Postal Service? Which I'm not sure there's a great answer to, right? It doesn't seem in accord with federalist principles. Certainly, if they want to stop cities and counties from submitting law ballots, they could do that with state law. So that's what stuck out to me. There was, of course, a lot on the merits, which was interesting and had to do with whether there was. statutory authorization for this and then sort of a constitutional layer on top of that statutory question that spoke to what does authorization have to look like and is the major questions doctrine implicated? And Judge Tawane seemed to think that it was. There was a lot of back and forth of, is this major, is this minor? And there was one point at which one of the, I believe it was the lawyer for the intervening states was saying, this is... We like the major questions. We states like the major questions doctrine, but we don't think this is major. We think it's minor. And that's because in the Supreme Court's major questions doctrine cases, there have been economic programs, hundreds of millions of dollars involved. And she said that she's not a business court. Sometimes the people in front of me are people. This isn't just a question of dollars. It's a question of voting. And if she finds that major disenfranchisement is likely, does she need dollars to... deem it a major question, which I think her answer to her own question was probably no. So yeah. Speaker 3 (18:34) And so what are we waiting for now from what courts? Yeah. Speaker 4 (18:38) So we're waiting for her. I mean, I don't want to assume a PI from her. We're waiting on her decision whether or not to issue a preliminary injunction. That's one thing we're waiting for. And then we're waiting for the Supreme Court's decision of, first of all, whether even to hear the appeal, to entertain the appeal. of the temporary restraining order, but, you know, possibly whether to stay the temporary restraining order that the. Speaker 4 (19:03) administration has requested. But if the preliminary injunction comes in from her, the temporary restraining order will be dissolved and it won't matter that that went up to the Supreme Court. We'd expect an appeal of the preliminary injunction. And again, Tuesday is when the replies are due for that. And she said she was going to move quickly. I was sort of surprised that she didn't get anything out today, but I suppose it's not 5 p.m. yet. Speaker 3 (19:31) Yeah, it will come down while we are recording to be maximally inconvenient. Yes, it will come Speaker 4 (19:37) down when I've already hopped off the call. Exactly. Speaker 3 (19:40) All right. All Speaker 4 (19:42) of Speaker 3 (19:42) which brings us to the subject of the ballroom litigation. And it's been a big week for the ballroom. Speaker 3 (19:58) Molly, bring us up to speed. Speaker 4 (20:01) Oh my gosh. Okay. So we discussed this on the other Lawfare Live too, so I don't want to be too repetitive. And also I should promote the piece that I have on this, on the question of aesthetic standing, all caps, exclamation point, or aesthetic with AE or aesthetic with E. I preempt you on that one. That's another major debate, at least in the past Speaker 3 (20:25) four. Speaker 4 (20:25) A major Speaker 3 (20:25) question. Speaker 4 (20:26) It's definitely, absolutely, absolutely a major question. Not hundreds of millions of dollars involved, but one or two letters involved, depending on how you look at it. So, okay. So I think the upshot here is that the ballroom is getting built and the Supreme Court has said the ballroom can get built. That's not, of course, technically exactly what has happened, but that is the practical result. What the Supreme Court has done is stayed the injunction against the above ground construction of the ballroom. But I think that... There's more that has to happen legally, but it's effectively going to be the end of the matter. The Supreme Court did this 5-4, and Chief Justice Roberts wrote with the Democratic appointed justices in the dissent. And it did it primarily on the basis of standing, although it also addressed irreparable harm. So standing was sort of the merits prong of the