Should the FBI be allowed to access Americans’ private communications – including emails, texts, and phone calls – without a judicial warrant? As Congress faces an April 30th deadline to decide the future of a major national security surveillance tool, the debate over Section 702 of the Foreign Intelligence Surveillance Act (FISA) is at a critical crossroads.

In this detailed discussion, Ryan Goodman sits down with Andrew Weissmann, former FBI General Counsel and DOJ veteran, to unpack the complex “three-prong fork in the road” facing lawmakers: reauthorize the tool as is, reform it with new warrant requirements, or let it sunset entirely.

About our guest: Andrew Weissmann is Professor of Practice and Distinguished Senior Fellow at the Reiss Center on Law and Security and at the Center on the Administration of Criminal Law at NYU School of Law. He served as a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office (2017-19) and as Chief of the Fraud Section in the Department of Justice (2015-2019). He is a member of Just Security’s editorial board.

Transcript:
Ryan Goodman: Should the FBI be allowed to access the content of Americans’ communications–emails, texts and phone calls–without obtaining a judicial warrant? That’s a key question that’s facing Congress right now, with a looming deadline of April 30th to make a decision. And what the decision is all about is a major surveillance authority: the ability of the U.S. intelligence community to spy on foreigners abroad who pose a significant national security threat to the United States.

But it also creates a database of communications in which, currently, the FBI’s able to dip in and search for Americans’ emails, texts and phone calls, without a judicial warrant. And that’s what Congress is facing, this kind of a question as to whether or not to reauthorize this spying tool, and if so, whether or not to place constraints on the FBI to go to court and get a warrant if it wants to access Americans communications.

I had a wide ranging conversation with Andrew Weissman, who served in many capacities in the Department of Justice, including the FBI’s general counsel.

As we record this, conversation Congress faces a trilemma, or a three pronged fork in the road. And the fork in the road, the way I describe it is, one: Congress has the choice of reauthorizing a major national security surveillance authority, as it has always existed or has existed over the last years. Clean reauthorization. But if it does so, then it means that the FBI continues to have access to the database that’s created, which contains the content of Americans’ communications, emails, texts, phone calls. So that’s route one. Just clean reauthorization. Route two is to reauthorize the surveillance authority, but impose a new set of conditions, such as, require the FBI to go get a warrant from a federal judge in order to access Americans’ communications. And then the third is do nothing. And if Congress does not act, then the existing authority sunsets and goes away. And that existing authority is, section 702 of the Foreign Intelligence Surveillance Act (FISA). And that’s what we’re going to be discussing. And Andrew Weissmann and I are going to discuss this in different ways. But I think just to start to level-set, Andrew, do you want to kind of lay out for people what exactly section 702 is when I say a major national security surveillance tool?

Andrew Weissmann: Sure. So the government has a lot of ways that it gathers information in criminal cases and in national security matters. So people who are listening to this may be familiar with subpoenas and search warrants. Those are traditional criminal tools. And there are various prerequisites that the government has to meet. And generally the view is the more intrusive a tool, the more factual predication, the more facts you need to do that.

And as you said, Ryan, another issue is sort of the more intrusive generally, the more that a court needs to be involved. So for instance, for a subpoena, that is a fairly low-showing that the government has to have and they don’t need to usually go to court to get approval. But to get a search warrant, like if they wanted to search your house, that’s a standard thing where you’d have to go get a warrant from a judge and you’d have to meet a standard called probable cause.

Now there’s something else, which is, people who are listening to this may have heard of the term a “wiretap,” or a “bug,” or an “electronic interception.” And that’s, like, if somebody wants to tap your phone, and there are a lot of requirements. You need a warrant, you have to have probable cause, and you have to make lots and lots of showings, to get that interception. And it’s only up for a certain period of time. And then it goes down automatically unless you can make new showings to a court, because it’s considered so intrusive to be able to get that kind of information. These days, a similar thing happens when you want to get emails, because the courts have realized that emails can be very similar to listening in on a conversation or oral conversation. And so that’s sort of on the traditional criminal side.

On the national security side, there are electronic interceptions that are very similar to what happens on the criminal side. You have to go to court and it’s under something called FISA, which is a national security tool where it allows you for foreign intelligence purposes–think, spies, and trying to catch spies, or think about terrorist groups and trying to prevent terrorist attacks and track them down–so that you can get an electronic interception under FISA.

And then there’s the thing that we’re here talking about, which is a separate codification, statutory authority that Congress has created, and something called section 702. It’s called section 702 because that’s the section number, so it’s not terribly creative. And section 702 is a little complicated. So, bear with me.

Section 702 allows the United States to get certain types of information, without getting an individualized judicial warrant. So under section 702, the government is getting gobs of information, lots of public information about the volume of information. It in many ways dwarfs all the other things I just talked about–and certainly, sort of traditional FISA warrants, individual warrants. And so the government is allowed to get this tons and tons of information about foreign intelligence. But here’s, like, the critical thing. The targeting of who’s actually being intercepted, who you’re trying to target in that has to be a person who is a non-U.S. person. So for this discussion, just think of it like a non-citizen. It’s actually– that’s not quite a citizen, a U.S. person. It’s not quite the same thing. But, somebody who is a foreigner.

But even more than that, it has to be a foreigner who is geographically overseas, so that you can use 702 to get information, that is foreign intelligence information from a foreigner who is overseas, geographically. And the reason for that, the reason that there’s that special category, is because the Supreme Court of the United States has said that the constitutional prohibitions of the Fourth Amendment, which governs search and seizure here in the United States, does not apply to foreigners geographically overseas.

I’m giving sort of big, broad brush statements of the law. And so if you’re targeting getting that kind of information that the statute is saying you can do that, but, the court has to see that that’s what your program is. That’s what you’re trying to do. And they authorize that program of, you know, the government wants to intercept X for the next year. But, we’re going to be targeting these foreigners overseas. And the court says, “yes, you can do that.” And then it has to get reauthorized, every year. And obviously the time period can change, and the court has some oversight, but there is no individualized warrant. Why? Because the Supreme Court has said, if you’re targeting people who are foreigners overseas, the Fourth Amendment restriction that protects everyone in this country, citizens, non-citizens, everyone in this country, just pointedly everyone in this country. So to the extent that you’re hearing, people say, “oh, non-citizens are not protected.” If they’re in this country, that’s not where the law is now. Everybody in this country is protected by the Fourth Amendment. And so, there you would have all these heightened restrictions and you need warrants and you need all these other things that I’ve talked about.

But 702 allows this huge–it’s not quite an exception, but it’s this huge area where the government does not have to have that sort of factual predication. Can I just put it in big, bold terms here? It means that the government doesn’t have to say that they have some real reason to be going after person A versus person B, because there’s no factual predication that is required, so long as the targeting is of somebody who is not a U.S. person and they are overseas.

Ryan Goodman: Right. And, related to foreign intelligence information.

Andrew Weissmann: Of course, it has to be. The whole idea of why it’s a national security tool is whether it’s traditional FISA, meaning the warrant based things that happen in the United States or whether it’s happening overseas. It has to be foreign intelligence.

Ryan Goodman: And so the right, so the big, huge question that Congress is facing is, through the collection of this vast database, Americans’ communications are, incidentally, picked up as well. And you can just imagine all the ways in which that happens. Maybe it’s the foreign nationals’ communications that are targeted, but they’re speaking to people in the United States or maybe people in the United States, you even have emails to one another, and then those end up getting into other email communications with the foreign national where they’re forwarded, etc. So down below in the Foreign nationals emails, lo and behold, there’s communications just between two Americans not even having a foreign national, on either side of that communication.

Andrew Weissmann: Or just think about an email chain where you could have like ten friends, but if one of them is, you know, a foreigner overseas and it’s foreign intelligence, like, and nine of the people are, are in America, or they’re U.S persons. It only takes one as that person is being targeted and all that other stuff can get scooped up, and this is where it’s really important for people to understand the volume. We’re talking about tens and tens of millions of communications, huge scooping up–like, hoovering and vacuuming up–of massive amounts, foreign intelligence data targeting this group that’s not protected by the Fourth Amendment. So a vast array.

And the way I like to think about it is that the fit is just not the same as what we’re sort of traditionally used to. And this is what I mean by that: It’s always the case–let’s say we’re just taking a domestic, search warrant–it’s always the case that if I get a job, I get a warrant here for your home, I may find and have to look through lots of information that is about people who are not being targeted. Like, I might have information there. Your family, there’s always going to be excess, right? Because you’re looking through to get the stuff that you’re allowed to look for. If you’re looking to look for A, B and C, then there’s lots and lots of stuff you’ll look through.

But the fit is, sort of like, if you look at a home or you look at an email account for a certain period of time, you know, from X date to Y date, there’ll be stuff that’s surplusage, you know, excess, and that’s what’s called “incidental,” “incidental collection.” And there’s kind of no way under our current law to avoid that, It happens all the time.

But one of the things that happens with these vast amounts of electronic data, both here domestically, but certainly when we’re talking about this overseas, is that ratio changes dramatically. And you can have just an enormous amount of surplusage so that it starts looking like the tail is wagging the dog.

And you have an enormous amount that’s gathered, but what’s actually sort of the, the foreign intelligence information about somebody who is a non-U.S. person overseas can be a very, very small fraction of that. And under 702 the government has collected all of that. Whereas, if someone was doing a traditional search of your home, Ryan, the government goes in, they do the search. They right then and there, do the triage of what they’re allowed to look for and take versus what they have to leave there. And yes, there might be a little bit of slippage. Let’s say, you know, I’m authorized to take this notebook and it has some stuff about you, but has some stuff about other people. There’ll be a little bit of–the fit isn’t perfect, but it’s not at all like, you know, there’s one email that’s useful, but I get to take the whole account. So the fit becomes quite problematic. And why is that an issue in what we’re talking about? Think about what I said about what 702 has allowed for with respect to foreigners overseas.

Everyone else has Fourth Amendment rights. And so, to the extent that the government has collected this huge amount, you’re now going to have this issue of, is it just incidental collection that you have all these people where this information was taken, and if they had been the ones who had been targeted, the Fourth Amendment would have had to have been complied with?

Because the Fourth Amendment applies to anyone in the United States and any U.S. person anywhere in the world. And so, that is a problem that Congress is dealing with in terms of: how do you deal with the government trying to now go into the 702 data and not look just for the foreign, overseas actor, but now going in and looking for the American, who’s in England or the American who is in New York or Washington, D.C., or Arkansas?

Because there’s going to be this huge array of information which if the government had been targeting that initially, if that was the target, they would have had to get it into an individualized warrant and make a probable cause showing.

Ryan Goodman: So, one of the big questions is, and I’ll kind of tee this up for you, why isn’t the FBI, let’s say, is the agency, which is usually the one that’s most concerned in these conversations. Why is it that when the FBI goes into that 702 vast database and what’s called the “back door,” to the back door, they say, “okay, well, we’ve collected all of these email communications, etc. and now we’re going to go for looking at this very particular American who is in London, or as you say, in New York or DC, looking for communications.”

Andrew Weissmann: – or Arkansas.

Ryan Goodman: Yeah. Or Arkansas, or anywhere. Looking for their communications that might be in that database. And the technical term or the term that’s used is querying the database. Now, others would say it’s searching the database. That’s what they’re doing. So why isn’t that on its own terms, when the FBI decides to go in and search the database, a Fourth Amendment event? Why is that not a Fourth Amendment search–that the FBI should therefore have to, comply with the requirements of the Fourth Amendment, which is either that there’s a reasonable expectation of privacy on the part of those Americans, so that the only way in which the federal government should, generally speaking, as you say, access Americans content of their communications is if the government has either at a minimum, has probable cause and in all likelihood needs to get a warrant from a judge to do that?

Why isn’t that, in fact, the way in which we should properly look at the constitutional question that Congress can now back up with codifying that? So actually, putting in place the requirement to get a warrant?

Andrew Weissmann: So that is one complicated, and compound question. So there is a constitutional issue there. And there’s a statutory issue, meaning there is: what would the Constitution require? And what is it appeared to require now, what are the challenges to what’s currently happening that is constitutional in either its constitutional vulnerability? Because the law is very unsettled here, and there’s a lot of risk with respect to where the Supreme Court may land in terms of the constitutional question.

Very separate from that is the policy question which Congress can deal with, which is, they can always have a higher floor, they can make higher requirements, and that’s the whole issue when they’re deciding right now, as we’re doing this, whether to reauthorize section 702. And as you said, a straight reauthorization of the exact same terms, whether they just let it die, or whether, they change, sort of, the requirements that need to be shown. They can sort of deal with that, regardless of the constitutional question, they can deal with, sort of, should they have a higher floor?

Obviously they may decide, based on the constitutional risks, that there’s certain things they want to do because they want to make sure that they’re anticipating what could happen. So as opposed to passing a statute that would be struck down in some way as unconstitutional, they can try and anticipate that and protect Americans, and non-Americans, rights in passing a new statute.

So, there’s sort of those two pieces. Tell me which one you want me to sort of discuss first, whether it should be the constitutional or the statutory, because they’re sort of very separate issues. But it’s a little complicated.

Ryan Goodman: Yeah. So let’s just first, work through the constitutional question, since you’ve already discussed why the Fourth Amendment doesn’t apply to the front-end of section 702 targeting foreign nationals abroad, discussing foreign intelligence information. What’s your view of whether or not the Fourth Amendment actually does regulate the search or the querying of the database by the FBI?

Okay.

Andrew Weissmann: So this is one where we do have, we do know what the position is, various government actors, because Section 702 has come up before for reauthorization. And I should say, by the way, I’m a big fan of 702 in the sense that it is–I could go on and on–but there are independent, public reports about how vital 702 is to our national security. So, people should know. I come at it–I come at this discussion with a strong, strong, I won’t say bias, I’d say based on my experience and interest in having the program continue in a usable form, because I think it’s critical to our national security. And I don’t say that about every tool. And we could discuss that.

This is one where–and I think I’m backed up by, for instance, the Privacy and Civil Liberties Oversight Board, an independent group that has done reports on Section 702 and its utility. It is an area where it can be difficult to talk about it, because not every use is made public, obviously. And so, there have been efforts to make certain things public that show just how important it is.

But I wanted to make that as a, as a sort of, it’s important for people to know, sort of, how I come at this. I’m not somebody who comes at this with a view that it’s a tool that we should do everything we can to make it harder to use because it’s really not necessary. And it just leads to spying on Americans. And it’s abused. And so, given the abuse and given the lack of utility, it should be, you know, we should try and kill it off. That is not where I’m coming at this from.

So the constitutional issue, the traditional view, and the way in which 702 has been defended is that the government complied with the Fourth Amendment when it was targeting non-U.S. persons overseas. And so it legitimately has this information in its holdings, under the Fourth Amendment. And so once it has it, it can do whatever it wants with it, and what it does in a so-called “backend,” meaning after that initial seizure of the information is not a new Fourth Amendment event. It can do whatever it wants with the information.

And, to be fair, the law developed in this area in a very, very different area where they were thinking about the search of a home of, you know, right, to use that example of your home, Ryan Goodman. And so the idea is, once the triage has been done, you get to take it to your house. I mean, so you get to take this up from your house that is relevant back to your office. And then that search has been done, even though it is a continued seizure. The court sort of says and has said, “we just look at that one moment in time.” And so the backend is sort of less important to the court in analyzing from the expectation of the Fourth Amendment.

That’s sort of the old law, and it is one that the government relies on to say, “hey, what are you talking about? Backend use? There’s no such thing as a restriction on backend use. So if we want to go into the soup, the 702 soup, we can. Yes, we got it for the purposes of looking at non-U.S person overseas, but now we can look at whatever we want. And we can use it for whatever purpose.”

That’s the traditional answer to why there’s no constitutional issue. The problem with that is myriad. One: with the advent of electronic data and the fact that you don’t just do a search of your home, Ryan, and right then and there, do the triage. Instead, you’re allowed to just take your home and all of its contents, and I’m speaking metaphorically, and you’re allowed to take your home and bring it back to your FBI office. And then, as needed, you just go in and look for what you want to look for. And just to be clear, with electronic data, it’s not just your home. It’s like your entire city. I mean, the volume is enormous.

So, the old law doesn’t really fit that issue anymore because you’re taking so much. So there’s a seizure of the vast, vast amounts that are happening. Not just for the little time of that one search. You’re seizing the whole thing, taking it back to your office, and then periodically searching through stuff. So the law in various ways and various courts, but not yet in the Supreme Court, has been looking at restrictions on so-called backend.

I hate the term back end because it’s not a backend. When you take your home to the FBI and it’s there for, you know, perpetuity essentially, that is continued seizure, it’s not a backend seizure. It’s not a front-end seizure, it’s a continuing seizure until they get rid of it or return it.

And it’s also a continued search. So, just in terms of the plain language of the Fourth Amendment, I think that you see a lot of pressure that the courts are under, and there’s various district court and court of appeals decisions, dealing with restrictions going–even after that initial taking, and even an initial search.

And the second is, and you know, this because, I teach criminal procedure at NYU, which is the idea that even under the old law, once you have something in your possession, you can do anything you want with it, is not the law. I mean, I just, this is one where it drives me crazy and I say, I, I teach the same thing to my students day in and day out.

Let me give you an example: let’s go back to your home search where the FBI is allowed to look for items A, B, and C. And they take a whole bunch of stuff and they take it back to their office. And let’s assume one of the things is your laptop, and they were allowed to seize it, but pursuant to a search warrant, but they can look for A, B, and C. So the way searches are done with electronic data is it’s very rare that someone’s going to look through page by page for A, B and C. They can, they can do that. But more often they’re going to be saying, they’re going to put in the word A, and look for those items that show up on your computer and do the same thing for B and the same thing for C. But you know what a violation of that court order is that allowed them to search for A, B and C? Looking for D or E or F.

So you can’t just go in. It’s in your possession. You cannot look for anything other than what you were authorized to look for, even though it’s in your possession. So the idea that just because you have it, means that there are no limitations, is not the law. One of the things, and this is speculation on my part that I am very concerned about, is when DOGE came in and was trying to sort of have–we want to have sort of federated searches and we want all of government databases to be able to be searched, so that it’s like I’m going to look for, for A, B and C or D or V or F–Well, not all information can be searched for, for anything. So, a court, when they give you a search warrant says you can look for only certain items. It can be broad, but there will be limits on what you can search for.

So, even leaving my speculation apart about something I’m concerned about, it’s like, that’s sort of a good refutation of the idea that the Fourth Amendment simply does not apply to–and it’s only sort of a policy call as to–what happens to this vast database that you have. And so this, to me, is an area where, as I said, we don’t have a Supreme Court decision on it, but it’s fraught, fraught with issues.

I should point at the Supreme Court, I know lots of people think they’ll never be ruling, sort of on a privacy basis here, but there’s three very, very important Supreme Court decisions that are: it’s the Jones case, the Carpenter case and the Riley case where the court has very much restricted what the government can do in the face of electronic data. And this problem of data being able to be ingested automatically by the government, and there, sort of, use of that.

So this is one where it, you know, this is what I teach my students, which is like, we don’t know where the Court’s going to go on this, but it is we are very much in a state of transition because of the world we live in, which is this world of big data.

Ryan Goodman: And I guess one question that that raises, especially wearing the cap, you know, that you would wear in the past of a FBI general counsel: how do you think about that, litigation risk in the following sense? Because the courts might very well go in the direction of seeing it the way that you just described it, that this is actually a Fourth Amendment event, and it needs to be regulated by the Fourth Amendment.

If the government is collecting information on people without getting a warrant, and then the government later in time wants to use that information in a national security criminal prosecution, a criminal case, is the government running a litigation risk that would be reduced by statutorily, let’s say, imposing a warrant requirement? Are they at least getting a warrant and they can maybe avoid, that kind of, concern that the courts say you illegally obtained the material because you violated the Fourth Amendment in obtaining this American’s communications from this database without ever going to a court to get it. Is that a proper way of thinking about that concern?

Andrew Weissmann: It is a proper way to think about it. It is a complicated issue. I’ve had that exact issue of cases coming down. I was in the FBI general counsel when the Jones decision came down about GPS tracking. And you do think about not just the case and what it means in terms of what you have to do for that case. But you think about: where is the court going?

Now there are lots of issues and lots of defenses. And but I can tell you, when you have an area that is, where it starts looking like it, it is gray now or it may very well be a problem going forward, the sort of traditional advice that you give is, can you get a warrant? And if you can, get it. Why? Because your job is to help agents protect their investigation. That is, I’m talking now, as like when I was an assistant United States Attorney or when I worked at the FBI.

And so you want to make sure that you’re complying with the law now, and what the law may be in the future. And you want to then make sure that, let’s say you’ve got an incredibly important investigation, think of some crime that you think is horrific, whether it’s child predators or organized crime, murders, whatever it is, and there’s an incredibly important investigation. You do not want to have evidence suppressed. You do not want to jeopardize that case. So you’re thinking about what is the best way to sort of have a belt and suspenders approach, if you can do it?

And so the trick is, if you, you know, and the problem is when the agents say, like, we just don’t have probable cause, so what do you think we should do? And then you try and work through that. But if you can get a warrant, there’s just so many benefits that come from that, that it’s like it’s not that hard to do the paperwork. And if you have it, if you have the probable cause, then the court will sanction what you’re allowed to do. And it’s so good for litigation going forward.

I’ve been a defense lawyer. This, you know, there’s nothing worse in some ways if you’re trying to, in good faith, challenge the government’s actions when the government’s gotten a warrant. That’s the gold standard under the Fourth Amendment. That’s what, at most, the Fourth Amendment requires is that you have gotten a judicially approved warrant based on probable cause. If you’ve taken that step, then you’ve it’s sort of like you’ve done the right thing and you’ve done the right thing.

Ryan Goodman: And I just want to pick up on something you said there about, just, you know, doing the paperwork, to go get that warrant. One of the concerns raised by some, national security folks who’ve worked in the government and the like is, “well, if the Congress imposes a warrant that’s going to hamper U.S. national security investigations,” counterintelligence investigations and the like.

And the argument is, look, sometimes time is of the essence. It’s very early in the stages of trying to figure out some national security threat. They’re not interested at that moment about criminal prosecution. They just want to figure out what’s going on and then prevent some kind of national security calamity. And for them to, in that moment, have to go get a warrant from the court is imposing a high cost–is the argument.

I’m just laying out the argument as it goes. I’m not articulating my own view on that. But, the proposed legislation, I should say, just to make clear by, for example, Senator Mike Lee and, Senator Wyden does allow–it does have an emergency exemption–it also says, well, if you’re in an emergency, you could go ahead and query the database for the Americans communications and then very shortly thereafter, go get the court approval.

Andrew Weissmann: By the way, just to be clear, that is something that happens domestically also, you know. Domestically, the Fourth Amendment requires certain paperwork; it requires all sorts of things. But there are, with FISA there can be emergency exceptions. But as you said, it requires, you know, the Attorney General’s approval.

The Attorney General has to have, like, signed off on it. And then within very short order, you need to go to court and make sure it is blessed. And, that the court agrees that there is probable cause and that the court agrees there was an emergency. So this is not an emergency exception that somehow swallows the rule. It’s extremely rare.

I’m trying to think, when I was the FBI general counsel, I can only think of one instance where that came up, and I can’t even remember if we ended up having to do it or whether we thought we could get caught, because in this day and age, courts are around. I mean, this is not the olden days where it’s like it’s happening on a weekend. And, how are we going to get to, you know, a certain judge’s courthouse and who’s going to be on duty, and that could take forever to drive there, and we have to type up the paperwork. I literally mean type up the paperwork with the typewriter.

Now you can do things electronically. You can have telephone conferences or Zooms like this one. And so you can do things so much quicker. And that’s something that the Supreme Court has recognized that technology can be used to protect peoples’ privacy because it’s so much easier when you say you should get a warrant. The Supreme Court and I think it [was] Chief Justice Roberts, in a decision, had said, you know, when you can reasonably get a warrant, get one in a particular situation.

Ryan Goodman: And can you talk a little bit more about other tools that are available to prosecutors and national security investigators?

Andrew Weissmann: Should we just go back to– I’m not sure we finished the topic of the paperwork and the issue of, you know, people who say, you know, does it pose a real problem if you had a warrant requirement?

Ryan Goodman: Yeah, no, that’s actually exactly where I was still at. Because I want you to talk about your own experiences, FBI general counsel prosecuting major national security cases, investigating them. What are other analogs to what we’re talking about in terms of a new warrant for FISA section 702 that already exist in the law, that are already tools that we can draw lessons from, in terms of having to go to court and get approval for that, kind of, investigative tool that can, acquire individuals information like this.

Andrew Weissmann: Well, okay, I, I think I want to step back to give some credence to the concern, like to make sure people understand why it’s not a fanciful concern and what the response is.

National security threats are plentiful. And there’s so many things that, the FBI, when it’s functioning well–again, I don’t have any experience at the FBI since, you know, for, for a very, very long time. I left in 2013. But there are just many, many threat streams and there’s a lot for the FBI to cover and other parts of the intelligence community to make sure that we are safe.

And so tools, there are tools that are very useful, not just to prove a crime and to make a case, but there are tools that are very useful to help do that triage. And as you’re seeing hundreds and thousands of potential problems, trying to get a handle on, I mean, everything has to be checked. But to get your sense of what are the most problematic and what could be the most problematic for this country, I am sympathetic to the concern about what tools can be out there to help from the beginning, at the beginning lede, all the way to the end. And so that’s where I think that concern comes from. And when people say that, I always assume good faith, even though, yeah, there are bad actors. And then we’ll talk about sort of, you know, how 702 can be abused. I’m just for the moment, assuming a good faith actor, is going to be thinking about how the tool can be used to help do that triage, because then there is information in this database that can help, decide is there somebody there? Is there some connection or not?

And one of the things, that because we’re not talking about just taking 702 and getting rid of it, at least I’m not, because I don’t think that’s the right solution, the issue of, let’s just take one example. You know, you have a huge pool of 702 data. You obviously can look at it for the foreigner overseas, but now you want to look at it for someone in the United States, or for a United States person anywhere in the world. One option is that you can first question the database as to whether that even exists. That is, you don’t look at the content, you don’t look at, like, what did Ryan Goodman say to Andrew Weissman? You just want to know, did Ryan Goodman even have an email with Andrew Weissman so that you don’t waste your time with, like, getting a warrant and doing all this stuff, and it turns out I didn’t even talk to him.

So if you can do the initial query–which just tells you, does it even exist there? And to me that helps the FBI because it’s like, okay, well, don’t do any more work because there isn’t anything there. And it and it says if, you know, if you’re going to do the work, it’s because, in fact, you know, there is some conversation. And so now you want the content.

And so that helps us already do some triage. So, you know, if you have a foreigner overseas and let’s say that there really is some national security issue that the person is part of some terrorist cell and you’re concerned about something imminent, again, this is going to be a fraction. But, you know, this is what you worry about if you are in the national security world, about, you know, you want to be what’s called “left of boom”, meaning you want to be preventing any terrorist attack before it happens. You want to be “left of the boom.” And, it will be easier to say, “Okay, did this person speak to anyone in the United States during X time period?” And then within that segment, if let’s say you, you come up with three communications, but you don’t know the content yet, then you could go to the court and get a warrant.

Now there’s an emergency exception. So if there was something where you really, really thought a bomb was going to go off and or something really horrible was happening, you can deal with it. But to me, the issue, then is just, do you have the resources like, you know, it’s more a resource issue than anything. Like do you have the agents to do it? Do you have the lawyers to do it? Do you have the judges to do it?

And that’s where, one of the proposals that I think is very rational and reasonable and manageable is that it is not always the case that every time the government goes to court to get a tool, to be able to use a tool, that they have to get a full blown search warrant based on probable cause. There are certain types of subpoenas, where the government has to show some factual predication, but not probable cause. They have to show sort of a reasonable basis to believe this is relevant to an investigation. Another showing is even lower than that. They have to just show that something is relevant to an investigation but there’s less factual predication.

But in either of those, including the sort of higher one, where you have to give this some facts to support why this is relevant, those are very short applications. They’re not, you know, 10, 20, 30, 40, 50 pages. They can be five pages. Where the court is–you have to see that it’s a real investigation, that there’s a real concern, and that this, what you’re asking for, relates to what that real investigation is.

What does that do? One: it stops the person who might be doing this for an abusive reason. And by the way, I think this would be fair to have, and I’m not telling you about this in terms of, like, Republican and Democrat. I have the same concern about government action, regardless of party, you can have abuse. The abuse is not limited to a particular political party. And you can also just have bad judgment. You can have the executive being overzealous. And for good reasons, like they’re trying to stop crime, but they can be sort of–-they’re not thinking about this in the most impartial way, or their theory of why this is relevant, or why these facts support it. And ones where you want a judge to have to have some oversight to say “this is not appropriate.” And that seems much, much more doable. If you have that, you know, a lower threshold than probable cause, and it is, it is much faster.

Ryan Goodman: Right. And one of those provisions is, 2703(d), of the U.S code. And in the Mueller investigation, the final report lists using it hundreds of times over the short period of the Mueller investigation, just as an example, I think.

Andrew Weissmann: Right, so, we were up for, our investigation was about 20 months. I think the period where we were sort of active was, you know, obviously was shorter than that because in the last couple of months we’re just writing a report. So it’s roughly about 18 months. And, publicly disclosed in our report is the number of search warrants, the number of 2703(d) orders, which are these orders for electronic communications.

It’s the one which requires a sort of an additional factual predication, not the lowest one. And the number there was 230 during that approximately 18 month period. And just remember, we had one judge, that was the chief judge who is remarkable, by the way. Chief judge Beryl Howell, then Chief Judge Beryl Howell. But that’s just one judge who is handling that. And just remember, she was sitting as a normal Article III judge. She also oversaw the entire Mueller investigation in terms of the grand jury work. So she was publicly reported, oversaw over 500 full blown search warrants. So meaning it’s not like, oh, we had a full time judge just doing the 2703(d) orders.

This was in addition to all of her regular work. This I mean, this was a part of her regular work. But it suggests that there is capacity there. And obviously Congress, if they thought this is really important and they didn’t think that the FISA court had enough staff for this, that that’s within their control to add to that and the Chief Justice, you know, can make sure that the court is adequately staffed.

Ryan Goodman: So let’s end by discussing the issue that you flagged earlier, which is compliance.

And, there has been some writing around this big question that’s going on right now in the country as to whether or not Congress should just do clean reauthorization and pose a warrant, etc. There’s some writing in defense of a clean authorization by commentators who do not believe that the right policy response is a warrant of any sort. And their argument, I think, oftentimes rests on the prior track record, in which, let’s just stipulate. Which is a big “if,” what I’m about to stipulate. But if we stipulate that they are correct in the sense of most recent reporting by the Department of Justice’s Inspector General in the staff report by the Privacy, Civil Liberties and Oversight Board (PCLOB) would suggest that there is actually compliance right now with the statute in terms of when the FBI goes into the database, the FBI is abiding by statutory and internal regulatory requirements that they access that information only when they believe that they have a reasonable likelihood that it will return, foreign intelligence information on the searches that they’re conducting, of Americans communications.

What I always wonder about when I’m reading those pieces is just how much they’re resting on the past track record. And we’re not dealing just with the past track record, we have to think about concerns about how this tool could be abused.

And so can you talk about what you think on that question? And in the sense of given what we described as the tool, what’s at stake here? What are the concerns of abuse?And abuse could be intentional. The word abuse in some ways suggests that as a connotation. Or, it could also just be, we could talk about it as noncompliance. So it’s not necessarily intentional. Yeah. Mistakes are made.

There’s been–here’s an agent who decided to query the database, but they actually didn’t even think about what is there. Or do they have a basis for thinking that they would return foreign intelligence information by looking for these Americans’ communications?

Andrew Weissmann: So let me, so one, I’m not going to fight your hypothetical. I am going to take as a given the, the conclusion or the I’m going to take here the, the hypothetical conclusion that things have gotten better. But I just need to add a footnote that I have a lot of questions about that. And I would need to know a lot more before I actually accepted that. I just think we have such a huge track record of abuse and lack of transparency about what’s going on. So I have lots and lots of questions about that data. Obviously, also, assuming something has gotten better now, itself tells you very little about what when it might happen in the future, particularly, under this administration, but also under other administrations.

There’s a reason that, as Chief Justice Roberts says, “just trust us” when the government says, “oh, don’t worry, you don’t have to do that, just trust us. We’re going to do the right thing.” He has said repeatedly at oral argument, that’s not the way it works. And you have judicial oversight for that reason. And the Fourth Amendment requires, getting a court approval in a whole variety of contexts, per this Supreme Court and many, many other, Supreme Courts, precisely say that you have a determination prior to the violation, not in other words, you don’t have a violation and then they go, okay, now let’s figure out what the remedy is. That’s the whole point of having a court approve something in advance. The Supreme Court has made it absolutely clear–I completely agree with them–that the point of the Fourth Amendment is to prevent the violation. It’s not to redress the violation after the fact.

I think that one of the things we haven’t talked about, which really goes to abuse and is, I think, a huge concern under any administration, I really want to stress this, it’s not contingent on my reaction to my lack of respect for the way in which I see law enforcement happening now, it really grows out of just my decades of experience as a criminal prosecutor and some experience in the intelligence community.

It’s something that the statute on its face says it’s prohibiting but would be very difficult to monitor. And that is something called reverse targeting. Or sort of pretextual targeting. So remember, when we started out, I said, so, if they want to use 702 and the person is overseas and they’re not a U.S. person, that’s allowed. But let’s assume that they really want to know about you, Ryan. And you’re a U.S. person and you’re not overseas. You’re here. Well, if they wanted to focus on you again, assuming foreign intelligence, if they wanted to focus on you, and that was the target, they need to get a warrant. They need to go to court. They need probable cause. There’s all these belts and suspenders that are required by the Fourth Amendment. And it’s not just paperwork. I mean, they have to show factually to a court why it is appropriate to do this. But if they say, “well, who do we think Ryan Goodman has talked to? Well, you know what? I think he had a friend overseas in England. Let’s do this in a sort of good faith way. Let’s assume that there’s a, we can show some national security interest in that person, frankly, because they’re talking to Ryan Goodman, who we do have reason to be concerned about. So let’s try and say we’re going to do 702, we don’t need court authorization for 702. We don’t have to show the factual predicate to a court. So we’re going to target Ryan Goodman’s friend overseas. And that is a true target. We have, like, a good faith belief. In other words, we have some minor threshold, but it’s not having to go to court. But we also have an interest in someone in America.” That’s a valid use, they could say, of 702. So we’re now targeting two people. And even though it may be tail and dog, which is that, you know, they wouldn’t the standard is not would they have gone after the foreigner but for knowing Ryan Goodman? The standard that the government can have is, you know, there’s a legitimate–we have determined that we have a legitimate basis and we do not have to have that reviewed by anybody outside of the executive branch.

And in fact, it may be true that it but it could, but it just meets that very, very low standard. But the actual purpose, like the whole “but for” reason is they really want information about you. And to me, there is no valid basis for that. Now, if I was sitting in my, if I was like, now wave a magic wand and I am the general counsel of the FBI, I’d be like, we’re not doing that and there is no harm to us. There’s no legitimate harm to us. I mean, you know, it’s like that’s like the argument is like saying, well, isn’t there harm by requiring a search warrant in the United States of people who are here? Yeah, that interferes with law enforcement. When Chief Justice Roberts said that to get cell site data in a criminal investigation, you need a warrant. Well, that hurts law enforcement in the sense that it’s better for them. It’s better to not have to get a warrant. In other words, that’s the price of privacy and securing all of our privacy. And now, granted, I’m not saying this is easy. It’s not. This is not one where it’s like black and white, in my view.

But I think that the–especially when the, one of the proposed remedies is that the standard for the government to go into the soup, that sort of 702 soup is a standard that the FBI uses now internally. But when all the all this the statute would be doing is saying, okay, well, you’re saying you’re doing this internally. So now you shouldn’t have a problem just doing it externally. Like what’s your–if you’re so confident that you’re applying this standard internally correctly, fine. We’ll have a judge review it. And you know what? Let’s assume you have a 2% error rate. Well that’s, given the volume, we want to make sure that that’s not happening, whether it’s intentional or whether it’s just a difference in judgment. We want a court to oversee it. And that, to me, is, it’s something I actually in a, in a different life had actually proposed in that, in that sort of iteration of 215 and it was done for a while. I just don’t see that as a problematic issue, especially when the standard is when it’s been used.

I should point out that the Supreme Court has made that sort of move in terms of analyzing something. So, as you know, Ryan, we were recently teaching Miranda and the court’s decision about needing to read people who are in custody, their rights under Miranda. And that was a huge decision by this Supreme Court at the time. It still is. And one of the things that the Court did in that case is they said when law enforcement was saying, “don’t do it, it will hurt us” is, the justices said. But the FBI is doing that now anyway. So how can you say it’s going to, like. the sky is going to fall when the preeminent law enforcement agency in the country is doing it?

And obviously doesn’t think that it’s going to hurt them so much that they don’t want to do it. They think it’s something they can live with and is appropriate. So, I do think that that way of thinking is a useful one for people in Congress thinking about these policy decisions.

Ryan Goodman: Great. So thanks. Thanks for the conversation. And, just drawing from all your vast experience in these matters, it’s really helpful to clarify these issues.

Andrew Weissmann: Thank you, Ryan.

You can watch the 60 Minutes segment here.

You can also watch a YouTube Short featuring a portion of Ryan’s interview here.

Just Security’s research was also featured in a bonus 60 Minutes Overtime segment, where Ryan highlighted the Litigation Tracker. The Tracker catalogs over 480 cases filed against the Trump administration’s executive actions since January 2025, allowing legal practitioners, journalists, and the general public to monitor developing judicial trends in real time. Its advanced filters and daily case updates help shine a light on patterns of government behavior and a deeper understanding of how courts are responding to assertions of executive power.

Thanks to this data-driven work, both the Litigation Tracker and “Presumption of Regularity” project are informing academic discourse and public debate about executive accountability, with their impact recognized on 60 Minutes and elsewhere.

What is the Presumption of Regularity Project?

“The ‘Presumption of Regularity’ in Trump Administration Litigation,” published on Just Security, is a groundbreaking study examining federal lawsuits against the Trump administration. The work by Goodman, Watt, Balliette, Lin, Pusic and Venook tracks instances when courts explicitly raise concerns over three forms of government conduct:

1. Courts’ concerns over noncompliance with judicial orders (20 cases)

2. Courts’ distrust of government information and representations (over 40 cases)

3. Courts’ findings of “arbitrary and capricious” administrative action (58 cases)

Traditionally, the “presumption of regularity” means courts defer to executive branch officials and assume they act properly and in good faith—unless there’s clear evidence to the contrary. As documented by the authors, recent conduct by the Justice Department has led judges to reconsider this legal doctrine. The result is a significant erosion of trust in the Justice Department and the administration more broadly.

Just Security Out Loud brings the latest in national security law and policy from our pages to your podcast feed. We invite you to explore some of our recent influential articles in audio format below and to follow Just Security Out Loud on your podcast platform of choice. And of course, keep coming back to Just Security for the latest analysis and informational resources on the issues that matter most.

What to Make of Russia-Ukraine Diplomacy

Ambassador Daniel Fried analyzes high-stakes talks led by the United States aimed at reaching an agreement that could end the Russia-Ukraine War and re-shape global security for the next era. What would security guarantees for Ukraine need to look like in practice to be meaningful and how does Russia see its role? What would be just, and what might be possible, on the vexxing question of territory?

Listen to “Trump, Zelenskyy, European Leaders in White House Meeting: Progress Toward a Deal?” by Ambassador Daniel Fried

Deploying the National Guard in Washington, D.C.

Professor Mark Nevitt, a former military lawyer and a member of the Just Security editorial board, discusses the legal authorities for the President to use the DC National Guard, to bring in Guard forces from other cooperating states, and where the legal lines might be drawn.

Listen to “Trump, the National Guard, and the District of Columbia: What You Need to Know” by Mark Nevitt

Donell Harvin, former Chief of Homeland Security and Intelligence for the District of Columbia, discusses empirical research on social services that reduce crime and homelessness, interactions between federal forces and community policing, and more.

Listen to “How to Truly Keep Washington, DC Safe: President Trump’s militarized approach undercuts what’s been working” by Donell Harvin:

Daily News Roundup

Stay informed with our weekday audio summary of the biggest domestic and global developments in national security, foreign policy, and the rule of law. Early Edition is curated by the Just Security editorial team and delivered each morning on audio–perfect for your commute.

Listen to the Early Edition August 21, 2025.

Just Security Out Loud makes it easier than ever to keep up with the most pressing issues. Subscribe and catch up on the latest episodes wherever you get your podcasts (Spotify, Apple Podcasts).

First, please follow along with our new continuously updated Anti‑Corruption Tracker. This is a live interactive database that catalogs how U.S. oversight systems are being dismantled—from watchdog firings to FOIA rollbacks to weakened enforcement mechanisms.

Follow the erosion, action by action:

Second, we are launching a new series, When Guardrails Erode, where we bring together expert analysis to trace this erosion, assess the risks for democratic governance, and outline pathways to rebuild or reinvent these safeguards.

In that series, forthcoming pieces will explore international accountability measures, FOIA, the role of inspectors general, what states can do to protect against weakened federal anti-corruption measures, and more. Stay tuned for more, including tomorrow’s “Hard to Kill: The Transnational Survival of the Foreign Corrupt Practices Act,” by Bruce Swartz, Sonia Mittal, Inbar Pe’er, and Brady Worthington.

Both resources will be updated regularly. While this is not intended as an exhaustive list of everything that could fall under the category of guardrails erosion, if you believe we have missed a key development, please let us know at LTE@justsecurity.org. We welcome additions and corrections.

If you appreciate this work, please share with others.

We’re excited to spotlight three articles published on Just Security this week. These pieces tackle pressing legal and policy developments on national and international stages. We hope you find them insightful and valuable. 

1. “What Just Happened: The Tariff Litigation Advances”

Kathleen Claussen examines the latest developments in ongoing litigation over the Trump administration’s tariffs. “Litigation may distract more than it changes the course of the president’s trade policy,” she warns.  Claussen lays out “four topline points of relevance,” and suggests how Congress could step-in by “crafting trade-related legislation that directs the executive to act consistently with the bi-partisan support for carefully tailored, consistent, and reliable trade policy.”

Her article is also a great way to catch up to speed on the litigation and which case to watch most closely.

2. “What are ‘Wartime Authorities’? An Expert Q&A” 

Tess Bridgeman, Rebecca Ingber, and Scott Roehm answer the most important questions regarding the Trump administration’s attempted use of wartime and terrorism-related powers for domestic immigration and law enforcement purposes. The authors underscore the need to scrutinize when and how wartime powers are applied, and to maintain a clear distinction between war and peace.
Their analysis includes a handy guide with charts and more. 

3. “How the Proposed State Department Reorganization Guts U.S. Human Rights Diplomacy”

Scott Busby and Charles Blaha discuss how Secretary Marco Rubio’s plan would shrink the Bureau of Democracy, Human Rights, and Labor (DRL), eliminating most of its offices and staff and shifting its work to regional bureaus and embassies. This move, they argue, could undermine bipartisan priorities, risk sidelining expertise, and threaten support for core freedoms worldwide. The proposal also risks unintended consequences for embassies and regional bureaus, they write.

These pieces are part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions. 

For a digest of each article published this week, see here. For daily content from Just Security delivered straight to your inbox subscribe to Today on Just Security. (It’s free, and we don’t do anything with your email address except send you the content you signed up for.) Today on Just Security now includes updates of daily developments from our litigation tracker that monitors cases challenging the Trump administration’s executive actions.

As always, thank you for reading and engaging with Just Security. We’re grateful for your continued support and thoughtful feedback, which help us foster informed debate and pragmatic solutions for some of the most consequential issues of our time. 

Best, 

Tess Bridgeman & Ryan Goodman, Editors-in-Chief 

Thank you for your early support of our Substack! We truly appreciate your engagement as we explore new ways to connect with you.

We wanted to let you know we will be shifting how we use Substack going forward. Here, we’ll focus on highlighting our latest publications, keeping you regularly updated in a more streamlined way via Notes, rather than newsletters. Our Substack may also be used to spotlight unique resources and important developments at Just Security.

Going forward, our redesigned website will be the primary destination for all resources, multimedia content, and in-depth, expert analysis.

Early Edition, our daily, curated guide to major news and developments, can still be sent straight to your inbox, and is now available with audio on our site, whether you visit from your phone or computer.

Ryan Goodman’s newsletter, “In the Know,” will now come directly from his personal Substack account, @RyanGoodmanLaw. Make sure you’re subscribed to continue to receive updates and analysis on legal challenges to the Trump administration’s actions. Sign up for our “Today on Just Security” weekday newsletter to stay up to date on the big picture, including case statistics, daily updates to the tracker, and deeper dive articles.

We’re confident this approach will make it easier for you to explore and engage with all of our content.

Thank you for being a valued member of the Just Security community.

Warmly,

The Just Security Team

I just published a new piece on my Substack that I wanted to personally share with the Just Security community. It draws a direct line between two immigration cases—Kilmar Abrego Garcia and Daniel Lozano-Camargo—each exposing further concerns about the administration’s removal of people to El Salvador and ongoing litigation to obtain their release.

The analysis also highlights a broader trend: judges from different parts of the ideological spectrum pushing back against the administration’s use of the Alien Enemies Act. The post includes a detailed comparison table, links to court documents, and notable excerpts from recent decisions that speak volumes.

You can read the full piece here:

In The Know with Ryan Goodman

Another ‘Abrego Garcia’ and Growing Trump Losses in Alien Enemies Act Cases

Hi everyone…

Read more

a year ago · Ryan Goodman

If you find the Litigation Tracker helpful, I think you’ll find this analysis especially important. I’ll be producing these kinds of short newsletters via my Substack, so I hope you’ll consider subscribing there as well. My deeper analyses of these and a whole range of other issues will, of course, remain at the Just Security website itself.

Thanks for reading,

–Ryan

P.S. Feel free to share this with others who are tracking these issues or may want to stay ‘In the Know.’

Share

In The Know with Ryan Goodman

Founding co-editor-in-chief of Just Security. Law Professor at New York University. He served as Special Counsel to General Counsel of Department of Defense (2015-16). Yale PhD, Yale JD, Univ. of Texas BA.

This video can also be found on my new YouTube channel. Please feel free to subscribe and comment there as well.

–Ryan

P.S. This newsletter is moving!

To keep receiving updates, commentary, and in-depth legal analysis, you’ll need to subscribe to my personal Substack.

Just enter your email below to stay in the loop—that will soon be the place new editions of this newsletter are published.

Ryan Goodman

Founding co-editor-in-chief of Just Security. Law Professor at New York University. He served as Special Counsel to General Counsel of Department of Defense (2015-16). Yale PhD, Yale JD, Univ. of Texas BA.

Thank you for reading—and for being part of this community.

Share

TRANSCRIPT

Hi everyone,

Welcome back to In The Know—or welcome for the first time. My goal is to keep you informed on pressing issues of the day and to stay critically engaged with them. It’s about fostering analysis and starting meaningful conversations.

Today’s topic coincides with World Press Freedom Day, which was this past Saturday. There’s been a remarkable convergence of events: the Trump administration is engaging in a massive dismantling of global media organizations, and there’s been complete silence from the Secretary of State—Marco Rubio—on this important day. At the same time, a major court opinion came out supporting the Trump administration’s actions.

Let me start with a quote. As you read it, try to guess who said it:

“As we commemorate World Press Freedom Day, it is important we take a moment to recognize the courage and sacrifices of journalists around the globe. At a time when freedom of the press remains under attack worldwide, it’s important to advance the basic liberties that are critical for healthy democracies.”

That quote is from Marco Rubio—but not this year. It’s from when he was a senator. This year, on World Press Freedom Day, he was silent. So was the Secretary of State, which breaks precedent. Secretary Blinken made statements during the Biden administration, and even Secretary Pompeo did so during Trump’s first term. Those statements are important because they send a message to U.S. embassies worldwide, who then reinforce them. Notably, strong statements have often been issued concerning Russia. But not this year. Rubio remained silent.

The Trump administration is enacting sweeping changes—some possibly legal, some clearly not—including dismantling global media organizations that had enjoyed strong bipartisan support: Voice of America, Radio Free Europe, Radio Free Asia, and Middle East Broadcasting Networks. These outlets were designed and funded by Congress to deliver independent news to countries lacking press freedoms. After 9/11, the bipartisan 9/11 Commission recommended the creation of a network specifically for the Arab world, which led to the Middle East Broadcasting Networks. Their work includes counteracting extremist messaging from groups like ISIS.

Radio Free Asia, created in the 1990s with bipartisan support, serves countries such as China, Myanmar, and North Korea. It has successfully reported on the Uyghur genocide and the Chinese government’s cover-up of the COVID-19 outbreak. It has also been crucial in covering the crisis in Myanmar.

But the Trump administration began dismantling these outlets—slashing staff and suspending grants. As a result, the organizations sued and won temporary restraining orders and preliminary injunctions in district court. The administration appealed to the D.C. Circuit, which initially issued an administrative stay—temporarily halting the district court’s orders while the court considered next steps.

Interestingly, that Thursday order preserved one piece of the injunction: reinstatement of Voice of America staff. Carrie Lake, Trump’s appointee overseeing these agencies, even sent out a letter welcoming the staff back. But just two days later, on World Press Freedom Day, the D.C. Circuit reversed course in a 2–1 decision—effectively erasing the district court’s orders. The majority consisted of two Trump appointees, Judges Katzas and Rao, with Judge Pillard dissenting.

Judge Pillard’s dissent is powerful. The legal fight involves the Impoundment Control Act, which holds that the President cannot simply refuse to spend money appropriated by Congress. That would be equivalent to a line-item veto, which the Constitution does not permit. Congress created and funded these media organizations for a reason, and the Executive Branch must implement that intent.

The court also weighed whether halting the injunctions would cause irreparable harm. The majority argued that the administration would face harm due to foreign affairs powers, but that’s an oversimplification. They also cited the allocation of $15 million—arguing the funds might not be recoverable—which is minuscule in the federal budget.

Meanwhile, the harm to the media outlets is enormous. The court acknowledged the “possible collapse” of MBN and RFA but dismissed the risk by saying remedies might exist later, such as trying to recover withheld grant funds. But that’s not practical. These organizations could collapse before any remedy is possible.

Judge Pillard emphasized the need to preserve the status quo during litigation. She wrote:

“Voice of America, Radio Free Asia, and Middle East Broadcasting Networks face severe and irreparable harm absent injunctive relief. Voice of America has gone dark for the first time since 1942. Radio Free Asia and MBN face imminent collapse if they do not receive the funding Congress directed to each of them by name.”

That’s a stark warning.

There’s also a peculiarity: while the court removed the requirement to reinstate Voice of America staff, it left in place the mandate that Voice of America fulfill its statutory duty to be a “consistently reliable and authoritative source of news.” But how can that happen if staff aren’t reinstated? It’s unclear.

The broader theme here is twofold. First, these organizations were created to counter propaganda—from Nazi Germany to ISIS. Their collapse has global implications. Second, the legal system doesn’t always reflect the full harm. Courts focus on whether staff have standing to sue, rather than recognizing the broader collapse of Congress’s global press freedom efforts.

In the end, the D.C. Circuit didn’t rule that the Trump administration was right on the merits—it just claimed the district court lacked jurisdiction. The case may still be decided elsewhere. It’s hard to predict how it will end. But this entire episode highlights a deliberate policy choice to undermine global press freedoms. And Marco Rubio’s silence only underscores the stakes.

Here’s a roundup of the most recent developments in litigation concerning the Trump administration’s executive actions.

Judges’ orders:

1. On Thursday: In an Alien Enemies Act case, J.A.V. v. Trump, Judge Fernando Rodriguez, a Trump appointee in the Southern District of Texas, issued a permanent injunction. As a final order on the merits, that decision now tees up the Fifth Circuit. Judge Rodriguez wrote:

“The historical record renders clear that the President’s invocation of the AEA [Alien Enemies Act] through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.”

[Caveat: As I noted on Bluesky, I also see a problem in how Judge Rodriguez analyzed the “political question doctrine” – providing a roadmap for a White House acting in bad faith to overcome court review in writing up future AEA proclamations.]

2. On Thursday: In a case involving the dismantling of the Institute of Museum and Library Services, American Library Association v. Sonderling, Judge Richard Leon, a George W. Bush appointee, issued a temporary restraining order.

3. On Thursday night, in cases involving the administration’s defunding and dismantling global media organizations that provide news coverage to countries with limited press freedoms, the DC Circuit imposed an administrative stay which allows the government to continue to withhold funds from Radio Free Europe/Radio Liberty, Radio Free Asia and Middle East Broadcasting Networks until the court rules on the emergency appeal. At the same time, the DC Circuit ordered the administration to reinstate journalists at Voice of America and resume that media outlet’s news programming.

The DC Circuit notes: “The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motions for stay pending appeal and should not be construed in any way as a ruling on the merits of those motions.”

4. On Wednesday, in Mahdawi v. Trump, one of the flagship cases involving detention and deportation of students who engaged in Gaza war protests, the district court ordered Mohsen Mahdawi released and he walked out of the courthouse. I expect that news item is widely known to readers. What’s not as widely known is the following passage in Judge Geoffrey Crawfor’s opinion, which appears written for a broad American audience and is well worth our attention:

5. On Wednesday, in the Abrego Garcia case, Judge Paula Xinis rejected the administration’s motion to further delay answering questions about the removal of Mr. Abrego Garcia and what steps the administration has taken to secure his release from El Salvador. The government’s response to all discovery requests is due Monday, May 5 and depositions of four officials must be completed by Friday, May 9.

In a following newsletter, I’ll identify the key questions for which I’m especially interested in seeing the government’s response.

New lawsuit:

On Thursday, a new lawsuit was filed against DOGE alleging the organization is unlawfully trying to dismantle the National Endowment for Humanities. The case is American Council of Learned Societies v. McDonald.

Major appeals:

Late Thursday: In a major case involving protections for hundreds of thousands of Venezuelan immigrants who have been permitted to stay in the United States without the threat of deportation under a program known as the Temporary Protected Status (TPS), the Trump administration appealed to the U.S. Supreme Court to allow the government to revoke those protections. The case is National TPS Alliance et al. v. Noem.

Background:

The district court decision
The Ninth Circuit decision denying the Government’s appeal

New video:

Folks might want to check out a looooong conversation I had with Tom Joscelyn over on my new YouTube channel. (I promise to keep future conversations shorter!) Below is a sample in which Tom and I discuss one of the most important analyses to date on Trump administration executive orders: Harold Hongju Koh and colleagues’ article, No, the President Cannot Issue Bills of Attainder. That short essay is also a great read for those wanting a rich insight into American history. You can also listen to an audio of Harold’s essay thanks to Just Security’s new website redesign.

A cool technical update:

As you may have gleaned from the above, one can now directly link to any case in the Just Security Litigation Tracker. Here’s the trick:

Use this URL (and insert the digits of the case number at the end (such as 00951 for Abrego Garcia) :

https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/?js_filter=[CASENUMBER]

Example: https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/?js_filter=00951

Thanks again for joining the conversation. If you appreciate this work, please subscribe to the YouTube channel, forward this newsletter to others who might find it useful, and feel free to send along any questions, comments or other feedback.

Stay in the know,
Ryan

Share

TRANSCRIPT FOR ABOVE VIDEO

Ryan Goodman:

You and I both share an affection or a deep appreciation for one of the pieces that Jesse Critty published on the executive orders by Harold, Cohen, and Company. And Harold’s argument is one in which I think it alerts people both to the American history and then it alerts people to the constitutional issues that are being litigated.

The title of the piece—I was just bringing it up—is No, the President Cannot Issue Bills of Attainder. The “bills of attainder” idea is that we look back into U.S. history and the founding. A deep concern was not just Congress passing bills of attainder, as we all kind of learn in civics school and high school and the rest, but the president—that the president would have the power to target particular individuals, find them guilty, and then penalize them, including through depriving them of a livelihood, trying to destroy their ability to have a living and have clients and things like that.

And to me, that’s their argument. They say this is one of the frontal arguments against what we’re seeing—witnessing—coming out of the White House with these executive orders. And to me, it really speaks to the moment in a sense of understanding the kind of power that’s being accumulated in the White House that I assume most Americans, if you think about it, would not want that kind of authority ever granted to a single person—to go after their political enemies or personal enemies or people that they’re disgruntled with.

Which, in fact, you can just look at the very face of some of these executive orders, and they say exactly what the reason is. It’s like coming from Donald Trump’s personal diary as to particular individuals that he thinks—he ordered me in some of them.

Tom Jocelyn:

He actually says me!

Ryan Goodman:

Okay, I missed that. That’s great.

Tom Jocelyn:

Yeah, yeah.

On a personal note, I have started a YouTube channel where I hope readers will subscribe and join the conversation there as well.

I. Litigation snapshot:

Tuesday marks the first 100 days of the Trump administration. The charts below show a snapshot of where litigation against the administration’s executive action stands.

At the 100 days mark, in cases where courts have issued a ruling, plaintiffs have succeeded over 71% of the time in blocking the government’s actions. Examples include getting the courts to issue a temporary restraining order, a preliminary injunction or a permanent one. These cases are represented by the slices of the pie with shades of RED.

At the 100 Days mark, news outlets may report widely variating totals of how many cases have been filed since January 20th. We are careful not to overcount. Here are three notes we have recently added to the Litigation Tracker:

Note-1: We treat as one case all the lawsuits involving the removal of F-1 foreign student visa registration. According to Politico, there were “more than 100 lawsuits and 50 restraining orders from dozens of federal judges,” before the government reversed its decision and restored the F-1 registrations on or about Apr. 25, 2025.

Note-2: We do not track cases in which the Trump administration is the plaintiff/files a civil lawsuit. Other organizations include those cases in their litigation trackers.

Note-3: We do not count appeals as separate cases. The appeal of a district court decision to the Court of Appeals and/or Supreme Court is part of the same case.

II. My key takeaway for today:

On Monday, we saw an extraordinary pushback by the DC Circuit against the administration’s plan to purge the Consumer Financial Protection Bureau’s (CFPB) workforce with a 90% reduction in staff. The outcome also involves a near miss for the Trump administration on contempt of court. Indeed, one might argue that the DC Circuit also saved the administration from that fate, or at least gave the White House another opportunity to avoid it.

Here’s the tiktok:

The case involves the potential dismantling of the CFPB: National Treasury Employees Union v. Russell Vought.

March 28: District Court Judge Amy Berman Jackson issued a preliminary injunction preventing the dismantling of the CFPB. One notable item is Provision 3 of that court order, which was written fairly broadly:

“Defendants shall not terminate any CFPB employee, except for cause related to the individual employee’s performance or conduct; and defendants shall not issue any notice of reduction-in-force to any CFPB employee.”

April 11: The DC Circuit upheld the preliminary injunction in significant part but also narrowed it in part. In narrowing Provision 3 in particular, the DC Circuit stated:

“Provision three (3) is stayed insofar as it prohibits defendants from terminating or issuing a notice of reduction in force to employees whom defendants have determined, after a particularized assessment, to be unnecessary to the performance of defendants’ statutory duties.” (emphasis added)

April 17-18: Plaintiffs submitted a motion to Judge Berman Jackson alleging that the administration was imposing a 90% reduction in CFPB staff and was thus in violation of both the district court and DC Circuit orders - since that en masse termination was neither a “particularized assessment” nor would it leave the CFPB able to perform its statutory duties. Judge Berman Jackson appeared to agree. She blocked the mass reduction in force (RIF) and scheduled hearings for today and tomorrow, April 29-30th. Those hearings were anticipated to be a showdown. In the meantime, the Trump administration appealed Judge Berman Jackson’s block on the 90% RIF.

On Monday, April 28: The same DC Circuit panel – this time in a 2-1 decision with Judge Gregory Kastas, a Trump appointee, joining the majority – rejected the Trump administration’s appeal. Remarkably, the majority took the unusual step sua sponte (“on its own accord”) to reinstate Provision 3 in full. The DC Circuit appeared to think, along the same lines as the district court, that the administration’s attempted 90% RIF was in violation of the courts’ orders. Those orders sought to essentially freeze matters in place while the litigation on whether the administration can legally dismantle the CFPB proceeds.

How does this get the administration off the hook from what might have ended up in contempt proceedings? So long as the administration complies with the new panel decision — and there’s no indication (yet) that it isn’t – the chances of gamesmanship or purposeful end-runs disappear. And now, with the backing of the DC Circuit’s expansive order on Provision 3, clearly prohibiting the administration’s attempted 90% RIF, Judge Berman Jackson called off the hearings that were set for today and tomorrow that might have ended in contempt proceedings.

III. Keep your eye on the ball:

We’re still playing a waiting game for two major Supreme Court decisions:

1. W.M.M. v. Trump - in which the Court temporarily froze the administration’s attempt to deport individuals from the Northern District of Texas under the purported authority of the Alien Enemies Act.

2. The twin NLRB cases - in which the Court may decide the scope of presidential power to remove the top officials from independent administrative bodies without congressional approval, a decision with significant implications for the independence of the Federal Reserve Board.

Stay tuned for “The Supreme Court’s Next 100 Days,” a great piece by Steve Vladeck at the Just Security site on Wednesday.

IV. From the mailbox:

I’ll be answering readers’ questions. Send me any questions on your mind about the ongoing litigation.

A reader asks: “Can we get the people already disappeared to El Salvador back? They had no due process so the whole thing is illegal. I want to know how the US can be forced to get them back.”

The Supreme Court has approved courts’ ordering the administration to facilitate the release of individuals detained in El Salvador (even though the Justice Department has since misquoted and mischaracterized that holding in the Abrego Garcia case). This past week a second district court judge, Judge Stephanie Gallagher, a Trump appointee, ordered the administration to facilitate the release of a 20-year old man who had been sent to El Salvador’s CECOT prison in violation of a court-administered settlement agreement.

One of the most important cases to watch now is the ACLU and Democracy Forward’s habeas petition on behalf of all the detainees held in CECOT prison who the U.S. administration sent there under a purported invocation of the Alien Enemies Act. I anticipate Chief Judge James Boasberg in that case will hold that the detainees remain in the “constructive custody” of the United States due to the administration’s agreement with El Salvador (which included payment of funds to El Salvador to hold detainees sent from the United States for one year). That would mean the district court has habeas jurisdiction to assess the legality of their detention there. And with the right to habeas corpus (literally to “produce the body” before the court) comes the ability for courts to compel the government to take all steps to get them released and returned to the United States.

In other contexts, the U.S. government has often sought to “moot out” cases alleging constructive custody before a court can rule that habeas corpus extends to a particular foreign location (by releasing or transferring the detainee plaintiff before the court can rule). But the Trump administration appears unlikely to follow that path, likely setting up a showdown that could likely lead to a very unfavorable result for their position. That said, it’s not clear whether the Supreme Court would agree with lower courts on this issue. Watch this space.

Thanks for reading. Make sure you check the Litigation Tracker regularly for updates and let us know if we’re missing anything.

Ryan

I thought to share a conversation I had with Bill Kristol over at The Bulwark on Sunday. We cover a lot of ground including:

• The new case of a 2 year old U.S. citizen sent to Honduras in which District Court Judge Terry Doughty, a Trump appointee, expressed “strong suspicion that the Government just deported a U.S. citizen with no meaningful process;”

• The case of Abrego Garcia and a new case like it in which, District Court Judge Stephanie Gallagher, also a Trump appointee, ordered the government to facilitate a Venezuelan man’s release from El Salvador because his removal breached a settlement agreement;

• The criminal case against the sitting Wisconsin Judge Hannah Dugan;

• Three cases raising the issue of contempt of court orders.

All that and more.

Ryan

The Bulwark

Bulwark on Sunday: Trump vs. The Judges

This week on Bulwark on Sunday, Bill Kristol talks to Just Security's Ryan Goodman to talk about Trump's war on the courts and the arrest of a judge in Wisconsin by the FBI…

Listen now

a year ago · 229 likes · 5 comments · William Kristol

To that end, Just Security presents What to Read Right Now, a curated selection drawn from articles we’ve published on our website over the past week. WIth certain U.S. and global rule of law topics well-covered elsewhere in our Substack, this newsletter focuses on other issues, helping readers to stay informed on the broad range of law and policy developments that shape our world.

The United States, China Offer Competing Digital Visions

Following recent House committee hearings on the strategic importance of AI, including the national security implications of the United States-China AI race, Kayla Blomquist and Keegan McBride caution that the United States’ current focus on priority models and export control may hinder its long-run global influence. In Shaping the World's AI Future: How the U.S. and China Compete to Promote Their Digital Visions, they describe China’s model – facilitating a “technology ecosystem where potentially less capable models could be adopted and deployed rapidly at scale” – as leading to a proliferation of lightweight, efficient, and localizable models that then generate faster international adoption. And, they suggest:

If the United States wants to seriously compete with China and guarantee that U.S. AI systems enjoy global adoption, any new AI strategy must focus on three essential attributes for effective technology promotion: technical accuracy and reliability (quality), global user accessibility (reach), and the ability to respond and adapt to the diverse needs of businesses and communities worldwide (adaptability).

They offer suggestions for how to put this into practice, noting that any technological goals must also be supported by trust, investment, and an enabling regulatory environment.

Read more, and check out our archives of artificial intelligence coverage, curated by Just Security Senior Fellow and Director of the Artificial Intelligence and Emerging Technologies (AIET) Initiative Brianna Rosen and Junior Fellow Clara Apt.

Read more

For Gazan Civilians, What Meaning Does International Humanitarian Law Hold?

In Judging Deprivation – Humanitarian Aid in Gaza Before Israel’s Supreme Court and Beyond, Israeli scholar Tamar Luster thoughtfully analyzes a recent Israeli Supreme Court decision on humanitarian aid to Gaza, writing that a constrained legal reading of international humanitarian law divorces IHL from its ultimate purpose: civilian protection. (This echoes observations from ICRC chief legal officer Cordula Droege on IHL interpretations divorced from the law’s purpose in her powerful essay and podcast interview last summer.)

On March 27, Israel’s Supreme Court rejected a petition from five Israeli human rights organizations demanding unimpeded humanitarian aid to Gaza, despite escalating famine concerns. While acknowledging flaws in aid implementation and requiring Israel to improve monitoring of humanitarian needs, the Court held that Israel did not have effective control of Gaza at the threshold necessary to trigger the obligations associated with occupation. Instead, it said, the applicable standard was that of active hostilities without occupation – primarily a negative obligation not to interfere with aid delivery – and the Court largely deferred to the government’s security justifications for limiting passage of humanitarian aid.

In addition to laying out a counterargument based in IHL precedent that would recognize a stronger affirmative obligation on Israel’s part, Luster also examines the human consequences of the decision:

[T]his case … reveals the indeterminacies and tensions within international humanitarian law itself, rendering it ill-equipped to offer meaningful protection; the vague language of obligations to “allow and facilitate” aid, coupled with broad interpretations of “technical arrangements,” allows States to restrict basic needs while claiming to operate below the threshold of illegality. As individuals, families, and communities in conflict zones across the globe are increasingly engulfed by denial of their most basic needs and starvation, international humanitarian law demands more than mere clarification. It requires a decisive strengthening of norms, directly confronting the highly complex realities of urban warfare amidst densely populated areas, where unlawful hostages and civilians remain trapped between warring parties. Without urgent changes, humanitarian protections risk becoming a hollow promise rather than an array of normative safeguards against atrocity.

The article is part of Just Security’s ongoing coverage of perspectives and analyses on the e Israel-Hamas war.

Read more

Debating the Future of Nuclear Policy

As European policymakers question the reliability of the United States as a long-term security partner, there’s been a new push among France and other U.S. allies to explore a European-led nuclear security deterrent.

That’s the backdrop to Marlena Broeker and Connor Murray’s Doubts Concerning America’s Reliability Should Not Lead to a European Nuclear Deterrent, in which the authors argue that the downsides of such a move would far outweigh the upsides. Risks that they identify include provoking a destabilizing arms race, straining NATO cohesion, and increasing global nuclear competition by requiring non-nuclear European countries to support nuclear expansion. They argue that such a solution is “economically, politically and technically infeasible and inadvisable for both American and European security” and note that it could take a decade or more to build a European nuclear deterrent program.

Instead, they suggest, European countries should prioritize strengthening conventional capabilities and reinforcing alliances, and the United States should recognize its own interests are served by transatlantic cooperation, and not by creating the conditions that incentivize European nuclear expansion.

Check out Just Security’s coverage of this and other nuclear policy debates, in both the defense and energy sectors, which have been (ahem) proliferating in the news lately.

Read more

The United States: A Democracy Challenged

1. How President Trump’s actions do and do not threaten the rule of law

President Donald Trump’s second administration is not yet 100 days old. So much has happened during that time that it can seem impossible to remember all of it. Fortunately, the press has already started publishing retrospectives. On Apr. 22, Joseph Ax of Reuters provided an in-depth look in a piece titled: “How Trump waged war on his perceived foes in the first 100 days.” It is worth reading to get a sense of the scope of Trump’s actions to date against his declared political foes.

However, not all of Trump’s actions listed in the piece are equally threatening to the rule of law.

In early March, Just Security’s Ryan Goodman and Audrey Balliette explained what weaponization of the DOJ looks like. They wrote: “Weaponization includes a deliberate and systematic misuse of the [DOJ]’s powers for political or personal purposes and in defiance of the rule of law.”

Some of the examples cited by Reuters do not meet this standard. For example, the article notes that the Pentagon has removed a portrait of retired general Mark Milley, who served as chairman of the Joint Chiefs of Staff during Trump’s first term. Milley is a prominent critic of the president, having described Trump as “fascist to the core” and “the most dangerous person to this country.” But removing Milley’s portrait from the halls of the Pentagon is not a major infringement of the rule of law like other examples cited in the article. It’s a petty act of personal revenge.

Other acts in the article are far more serious. As Ax writes, executive orders are “typically used by presidents to direct policy priorities,” but Trump has aimed a series of such actions at his perceived political rivals and critics, including law firms and individuals.

For example, on Apr. 9, the president ordered the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to investigate Christopher Krebs, who headed the Cybersecurity and Infrastructure Security Agency (CISA) during Trump’s first administration. After the 2020 presidential election, Trump claimed that the election had been stolen, with electronic voting machines flipping votes cast for him to Biden. As the head of CISA, which oversaw cybersecurity during the election, Krebs knew that was not true. After Krebs refused to lie, Trump fired him. And now Trump has ordered that Krebs be investigated for “falsely and baselessly” denying “that the 2020 election was rigged and stolen, including by inappropriately and categorically dismissing widespread election malfeasance and serious vulnerabilities with voting machines.” The opposite is true – to date, there is still no evidence that voting machines did anything other than count votes in 2020.

Ax’s piece for Reuters contains other examples along those lines. For instance, Trump issued an executive order targeting Miles Taylor, a former DHS official who wrote an anonymous piece criticizing the president during his first term. And the federal government has launched “multiple probes” into Maine after Janet Mills (D), the state’s governor, refused to comply with Trump’s ban on transgender athletes.

2. Another example of how the Trump administration is undermining the rule of law

On Apr. 22, three Assistant U. S. Attorneys in the Department of Justice sent a remarkable letter to Todd Blanche, the Deputy Attorney General. The letter was first reported by Erica Orden of Politico. All three – Celia V. Cohen, Andrew Rohrbach and Derek Wikstrom – had worked on the corruption case against New York City Mayor Eric Adams but were placed on administrative leave after refusing to dismiss the charges, as demanded by their higher-ups at Trump’s DOJ. The authors allege that “one of the preconditions placed on our returning to the Office is that we must express regret and admit some wrongdoing by the Office in connection with the refusal to move to dismiss the case.” The authors decided to resign instead of complying with this precondition. “We will not confess wrongdoing when there was none,” they write.

District Judge Dale Ho did drop the case against Adams at the DOJ’s request in early April. The judge did so “with prejudice,” meaning the DOJ cannot bring the same charges against Adams once again. But Judge Ho explained: “Everything here smacks of a bargain, dismissal of the indictment in exchange for immigration policy concessions.” That is, the DOJ allegedly sought to dismiss the charges in exchange for Adams’ willingness to comply with the Trump administration’s immigration policies. And now three DOJ attorneys claim they were asked to “express regret” for refusing to comply with this corrupt bargain.

Danielle Sassoon, the interim U.S. attorney for the Southern District, and five other DOJ officials previously resigned in February after refusing to dismiss the case. In a letter addressed to Attorney General Pam Bondi, Sassoon explained that she had been directed “to dismiss an indictment returned by a duly constituted grand jury for reasons having nothing to do with the strength of the case.” That is, according to Sassoon, dropping the case against Adams had nothing to do with enforcing the rule of law. The decision to drop the charges against Adams is part of a pattern, as Trump has undermined norms concerning the DOJ’s independence by tightening the White House’s grip on the department’s personnel and decisions.

Around the World

In addition to news inside the United States, I closely follow events around the world, especially in countries where authoritarian regimes are attempting to quash democratic movements, repress minority rights, or restrict free speech. Below are two stories that caught my eye in recent days.

3. Chinese officials are forcing Hong Kong’s pro-democracy political party to disband.

Chinese government officials are forcing The Democratic Party, which advocated for representative government in Hong Kong for more than three decades, to shutter by the end of the year. It’s long been known that The Democratic Party’s days were numbered. But reporting this week made it clear that the party will no longer be allowed to operate within months. “The message was that the party has to be disbanded or there will be consequences,” Yeung Sum, the former party chair, recently told CNN.

Disbanding the party is part of the Chinese Communist Party’s (CCP) campaign to end Hong Kong’s former semi-autonomous status. Britain handed over control of Hong Kong to China in 1997. And Hong Kong’s residents enjoyed a large degree of freedom for most of the years since then. But that changed several years ago, as the CCP began to exert control. The United States and the CCP continue to trade diplomatic barbs over Hong Kong’s fate.

Earlier this week, China’s foreign ministry announced that it was going to slap sanctions on U.S. officials, members of Congress, and non-governmental organizations that it claims have “performed poorly” on issues related to Hong Kong. So far, the foreign ministry hasn’t announced which specific individuals and organizations will be sanctioned. But the announced move is a tit-for-tat response to U.S. sanctions imposed on Chinese officials weeks earlier.

On Mar. 31, the State Department announced that it was sanctioning six Chinese officials for engaging in “actions or policies that threaten to further erode the autonomy of Hong Kong.” All six serve in Hong Kong’s current administration. At issue is China’s 2020 National Security Law, which bans various forms of dissent and undermines Hong Kong’s autonomy. Concurrent with the sanctions, the State Department released its annual report on Hong Kong’s status as an autonomous entity. Throughout 2024, State assesses, Beijing “took new actions which directly threaten U.S. interests and are inconsistent with the Basic Law and China’s obligation pursuant to the Sino-British Joint Declaration of 1984 to allow Hong Kong to enjoy a high degree of autonomy.” The State Department further warned that the “overall trend…has been one of centralization under Beijing.”

4. Hungarian parliament amends constitution to ban Pride events - restricting free speech and infringing on minority rights.

Hungary’s parliament passed a constitutional amendment in mid-April banning public LGBTQ+ events. Thousands of Hungarians immediately took to the streets in protest.

The constitutional amendment is the latest in a series of legislative actions targeting the LGBTQ+ community that have been spearheaded by the dominant Fidesz-KDNP political coalition, led by Prime Minister Viktor Orbán. In March, the Fidesz-KDNP coalition passed a discriminatory law banning members of the LGBTQ+ community from marching. It builds on an earlier law, enacted in 2021, prohibiting the “depiction or promotion” of homosexuality to minors under the age of 18 years old. The law passed in March allows authorities to target anyone who disobeys the prohibition.

According to Reuters, the Hungarian government is now authorized to use facial recognition technology to identify and track participants in Pride marches. Amnesty International, which launched a campaign opposing the ban, explains that violators face up to one year imprisonment. Amnesty is encouraging law enforcement officials to refuse to enforce the law and allow the annual “Budapest Pride” march to be held this upcoming June.

Activists, including members of LGBTQ+ groups, have repeatedly protested the discriminatory laws, arguing that they curtail free speech and allow Orbán, who has long opposed LGBTQ+ rights, to further crackdown on his political opposition ahead of the 2026 parliamentary elections.

What Else I’m Reading:

• Gabriela Lotta argues that bureaucracies are a key to state resilience. In “Bureaucracy Reconsidered,” he explores the “usually hidden and under-discussed role of the bureaucracy: to protect the rule of law and act as a guardian of the state, of institutions, and of democracy.”

• And finally don’t sleep on Don Moynihan’s piece on how star war spin-off series Andor captures the spirit of bureaucratic resistance and moral clarity inside oppressive systems — and why it matters in a democracy.

I thought to share a discussion I had with Andrew Weissmann about the unfolding developments in DVD v. Department of Homeland Security, a case that hasn’t gotten much national attention but raises urgent due process and constitutional concerns. Andrew posted the conversation to his Substack, and I’ve embedded the link below so you can listen or watch directly. It’s a striking example of the legal questions now emerging in multiple federal courts—and why this case, in particular, deserves your attention.

We analyze a significant government admission in a court filing on Wednesday night. It appears to show a willful violation of the district court’s ordering the government to halt deportations to El Salvador “UNLESS and UNTIL” (the district court uses all caps) detainees receive notice they’re being sent there (if they are not Salvadoran) and have an opportunity to apply to an immigration court if they believe they’re at risk of torture. The government appears to have deported them anyway.

Here’s the video:

Behind The Headlines

BREAKING: Another Trump Administration Contempt Violation? A Look Inside The D.V.D. Case

Hi folks…

Listen now

a year ago · 17 likes · Andrew Weissmann, Ryan Goodman, and Just Security

You can also check out my further written analysis of this situation at Just Security, here: How March 31 Military Flight of Venezuelan Nationals to El Salvador Most Likely Violated Court Order.

Here are the relevant documents:

Court’s temporary restraining order of March 28
Government’s filing and ICE official’s affidavit of April 23
DHS Memorandum of Understanding with DOD on Guantanamo of March 7

As a reminder subscribing to the Just Security Substack is free and all content is available to all readers.

Subscribe now

Ryan

Keep your eye on the ball: Which department had custody of the individuals following the court’s order.

Subscribe now

On March 28, the court ordered the defendants in the case – the Department of Homeland Security including ICE and the Department of Justice – not to deport any individual with a final removal order “UNLESS and UNTIL Defendants provide that individual, and their respective immigration counsel, if any, with written notice of the third country to where they may be removed, and UNTIL Defendants provide a meaningful opportunity for that individual to submit an application for CAT [Convention Against Torture] protection to the immigration court” (capitalization emphasis in original).

The government now says it did remove these individuals to El Salvador after the court’s order! The government’s excuse: The removal to El Salvador was carried out by the Department of Defense (DOD) rather than DHS/ICE, and the former is not a named defendant in the case. An example from the government’s Wednesday night filing:

The flaw in this attempted excuse is obvious. What that statement leaves out is which agency had custody of the detainees after the court’s order.

And what the accompanying ICE official’s affidavit makes clear is that the DHS was directly involved in their removal. That’s because DHS had custody of several of the individuals after the court’s order, and then transferred them to DOD after the court’s order. Indeed, DHS apparently transferred some individuals to the DOD base in Guantanamo. The base served as a very temporary holding place until their transportation by DOD to El Salvador a few days later. Here’s an example from the affidavit:

This switch from one department (a named defendant) to the other is not cunning. It appears to be a violation of the court’s order both in the spirit and in the letter of the law.

A reminder to please subscribe to Just Security’s substack where all our content is free and open for all readers.

I. Litigation snapshot:

In the next newsletter, I will go into some of the details of the litigation landscape including the wins and losses by the administration and plaintiffs. This week is notable in crossing the milestone of over 200 cases since January 20th. The line was crossed in part due to five new lawsuits filed, including by conservative groups, in response to the administration’s tariffs policies.

II. My key takeaways for today: Two (More) Potentially Fatal Flaws in Deportations to El Salvador

In the extensive public discussion of the Trump administration’s transferring people to El Salvador’s CECOT prison, two legal problems have been widely overlooked: (1) constitutional constraints related to the use of CECOT as a form of punishment; and (2) statutory constraints related to torture at CECOT.

These two legal issues could strike a fatal blow to both forms of transfers - those under the purported authority of the Alien Enemies Act (alleged Venezuelan gang members) and those under the purported authority of the Immigration and Naturalization Act (as in the case of Kilmar Abrego Garcia).

These legal issues, however, have not been lost on immigration lawyers working on the frontlines. Indeed, I’d like to bring to your attention two lawsuits, which have themselves flown largely under the radar.

To be clear, the two issues that I am highlighting concern the government’s authority to deport particular classes of migrants to a specific location. Let’s bracket whether the government has every right to deport certain individuals. The two legal issues instead simply and squarely concern the government’s authority to send people to CECOT.

1. CECOT as Punishment. Zacarias Matos v. Venegas (Southern District of Texas)

Basic to constitutional law is that the government cannot impose incarceration as a form of punishment without criminal charges, criminal trials, and all the accompanying due process guarantees. In the case of Zacarias Matos v. Venegas, the plaintiff argues that the Trump administration’s use of CECOT is clearly a form of punishment.

The plaintiff makes a strong, if not completely obvious, claim: the nature of the supermax prison and senior executive branch senior officials’ statements of the purposes of incarcerating people at CECOT satisfy the Court’s test of whether the conditions constitute punishment. The factors for what is considered punishment in this context have been announced and reaffirmed by the U.S. Supreme Court time and again. You can probably anticipate where that then leads in terms of its legal implications, because none of the individuals sent to CECOT have received anything close to Fifth and Sixth Amendment protections.

For more on this argument, I recommend reading Ahilan Arulanantham’s essay in Just Security this morning: “Deportation to CECOT: The Constitutional Prohibition on Punishment Without Charge or Trial.” (Disclaimer: Ahilan is Zacarias Matos’s lawyer). I am also grateful to Asha Rangappa who raised this issue and helped me think through it.

The legal brief that Ahilan discusses was filed on behalf of Zacarias Matos on April 14. On Monday night of this week (Apr. 21), the government filed a response and conspicuously avoided addressing this particular legal argument.

Of course, the Fifth and Sixth Amendment do not exhaust the Bill of Rights protections that apply if the government’s actions are understood as punishment through incarceration. The Eighth Amendment prohibition on cruel and unusual treatment is also of relevance. So is the Fourth Amendment. I asked my colleague Andrew Weissmann who teaches a course on the Fourth Amendment. He wrote, “For a seizure of a person in a criminal context the state must have probable cause and, importantly, there must be a judicial determination within 48 hours that such probable cause for the seizure exists. County of Riverside v McLoughlin.”

2. CECOT as Torture and Potential Death. D.V.D. v. U.S. Department of Homeland Security (District of Massachusetts)

This case involves a class action lawsuit on behalf of immigrants being deported to a third country (not their country of origin) after they have received a final order of removal (i.e. exhausted all administrative remedies). It is not specific to El Salvador or CECOT, but has obvious implications for those operations.

The plaintiffs insist on the constitutional right to notice, recently recognized by the Supreme Court, which includes government agents not lying to them (incredible that I have to write that) as to which country they are being sent. They also assert their statutory right to make an application to an immigration court if they risk grave danger such as torture in being sent to that third country.

How might this apply to the CECOT deportations?

Affidavits across different cases have provided evidence that ICE agents have falsely told Venezuelan nationals boarded onto buses and planes that they are being sent home to Venezuela, when their true fate is El Salvador’s CECOT prison. This deception reportedly recurred during the government’s most recent effort – the Easter Weekend attempt to use the Alien Enemies Act to deport people to El Salvador, before the operation was halted by the Supreme Court in a 1am ruling. In addition to such deception, in its Supreme Court brief filed on Monday, the ACLU states: “Nor, critically, did the notice tell individuals that although they are Venezuelan, they may be removed to El Salvador.”

Even if individuals were correctly told they were being sent to El Salvador, they must be given an opportunity to apply to an immigration court under a federal statute that prohibits the U.S. government from sending them to a country where they’re at personal risk of being tortured. Indeed, in D.V.D., Judge Brian Murphy issued a temporary restraining order along those lines, which was upheld by the First Circuit (due to an jurisdictional infirmity in the government’s appeal of a TRO).

On Friday, Judge Murphy issued a more long-lasting preliminary injunction. His opening paragraph describing the nature of the dispute is extraordinarily powerful and appears to be written for a broader audience far beyond the courtroom. I recommend reading the judge’s words in full:

“This case presents a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there? Defendants argue that the United States may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation. All nine sitting justices of the Supreme Court of the United States, the Assistant Solicitor General of the United States, Congress, common sense, basic decency, and this Court all disagree. Plaintiffs are seeking a limited and measured remedy—one Defendants have conceded in other proceedings is the minimum that comports with due process. Plaintiffs are simply asking to be told they are going to be deported to a new country before they are taken to such a country, and be given an opportunity to explain why such a deportation will likely result in their persecution, torture, and/or death. This small modicum of process is mandated by the Constitution of the United States…”

Yesterday, the government appealed to the First Circuit to try to overcome Judge Murphy’s ruling.

Finally, it’s important to see how this second legal issue of protection from torture cuts across many cases of deportation, including the first two “Alien Enemies Act” flights on March 15, the “third plane” sent to El Salvador which the government asserted to Chief Judge Boasberg carried only immigrants with final orders of removal, the fourth flight Secretary Rubio boasted about at the end of last month, and the fifth flight Rubio revealed a few days ago. It is hard to imagine how the individuals the government tried to hurriedly move out of the country through subsequent flights over Easter Weekend were not protected by these same legal guarantees. If they were subject to final orders of removal, deporting them may have run afoul of Judge Murphy’s order.

III. What I’m reading, watching, and listening to:

The Alien Enemies Act : Throughline : NPR The latest episode published by NPR’s history podcast, Throughline.

Ankush Khardori, ‘An Enormous Usurpation’: Inside the Case Against Trump’s Tariffs, Politico Magazine

IV. From the mailbox:

I’ll be answering readers’ questions. Email me any questions on your mind about the ongoing litigation, and I’ll pick a few each week to respond to in this newsletter. (And, once again, if you don’t mind my mentioning your name in a future newsletter please say so in your email, otherwise I’ll consider any comments anonymous.)

Make sure you check the Litigation Tracker at justsecurity.org regularly for updates and let us know if we’re missing anything.

Thank you for being part of the Just Security community,

Ryan

The late-night drama inside the Supreme Court resulting from what the government promised - and refused to promise - to do on deportation flights this weekend

Conservative voices that have emerged to criticize the administration’s actions in the Abrego Garcia case.

The strategy behind the ACLU litigators’ moves across several jurisdictions at once.

And a whole lot more.

Behind The Headlines

BREAKING NEWS: The Supreme Court Upholds Justice In The Wee Hours

Folks: Here is a special discussion with Ryan Goodman, of Just Security (which just launched its own must-subscribe Substack. A link to it is in the postscript…

Listen now

a year ago · 577 likes · 43 comments · Andrew Weissmann, Just Security, and Ryan Goodman

To that end, Just Security presents What to Read Right Now, a curated selection drawn from articles we’ve published on our website over the past week. WIth certain U.S. and global rule of law topics well-covered elsewhere in our Substack, this newsletter focuses on other issues, helping readers to stay informed on the broad range of law and policy developments that shape our world.

War in Sudan, Two Years On

“As Sudan marks two years since the eruption of war between rival military factions—the Sudanese army and the paramilitary Rapid Support Forces (RSF)—the country stands at a dangerous crossroads,” Quscondy Abdulshafi writes in Two Years of War in Sudan: From Revolution to Ruin and the Fight to Rise Again. The conflict has led to a catastrophic humanitarian crisis and drawn in regional powers, complicating peace efforts and creating a risk of broader instability across the Sahel and Horn of Africa.

The author, an award-winning Sudanese civil society leader now serving as a Senior Regional Advisor at Freedom House, who also appeared on our podcast this week, also analyzes what the conflict means for the country’s democracy.

“Sudan’s democratic future is not dead. It is under siege. And it needs allies not just in words, but in action,” he writes, recommending six concrete policy actions: sanctions aimed at addressing violence and protecting civil space; sanctions on external actors fueling the conflict; support for pro-democracy initiatives and civil society; reconstruction where possible; and inclusive mediation and political processes.

For more detail on these, and for other perspectives, also visit our Sudan archive.

Read more

Lessons in Tech Policy

Our symposium, Regulating Social Media Platforms: Government, Speech, and the Law, a joint production with Tech Policy Press and the NYU Stern Center for Business and Human Rights, continued this week with Olivier Sylvain’s States in the Vanguard: Social Media Policy Today.

In the absence of comprehensive federal social media regulation, Sylvain writes, U.S. states have stepped in with various laws and regulations covering domains including content moderation, data protection, and online child safety. Tech companies are challenging many of these laws in court, often on First Amendment or preemption grounds.

One observation that may provide a clue for what the future of social media regulation could look like: while some “content-based or speaker-based” legal challenges have prevailed, “the states have been winning to the extent the new laws redress harms from non-speech related commercial practices and design features.”

This and other articles in the Symposium—like Daphne Keller on the tension between First Amendment rights and content regulation or Susan Ness on comparative European and U.S. trends in digital platform governance—offer models of how regulation and governance might happen across a variety of policy spheres in our tech-inflected future.

Read more

I. Litigation snapshot:

The Just Security team has produced an initial set of infographics that are intended to help readers understand the status of the cases filed to date and how the American legal system is responding.

Let’s break down the first infographic, a pie chart. It shows 95 cases in favor of either the plaintiffs or the government (we removed cases awaiting a ruling or that have been closed or transferred):

• In 66 cases plaintiffs have had at least some success in blocking the government’s actions – for example, by getting the courts to issue a temporary restraining order or a preliminary injunction. These cases are represented by the slices of the pie with shades of RED.

o In 53 of these cases, the government’s actions were either temporarily blocked (46) or blocked pending appeal (12).

o In 8 cases, government action stopped (5 cases) or was blocked (3 cases involving not TROs or preliminary injunctions, but instead permanent injunctions or summary judgment for the plaintiffs).

• In 29 cases, the government has had success. In 27 cases, represented by shades of BLUE slices of the pie, the plaintiffs’ request to block government action was either denied (22 cases) or has been denied pending appeal (5 cases). In another two (2) cases government action has been completed.

What do the pie charts show us? Plaintiffs have won more often than they have lost. As explained above, the plaintiffs have had at least some success in blocking the government’s actions in 66 cases. That is about 68 percent of the cases in the chart. In contrast, the government has won just 29 of these cases – or a little less than 30 percent of the time. A caveat here: these are, in many instances, early stages in the litigation and these percentages could change as the lawsuits progress through the courts. Indeed, the second pie chart also shows how many cases are still awaiting an initial court ruling.

The infographic bar charts break down the cases by type. Presenting the data this way reveals some interesting nuggets of information.

For example, the bar charts show that there are more cases involving the structure of the U.S. government or personnel than any of the other types of cases in our data. The second bar chart shows more than 32 cases involving the structure of government and/or personnel are still awaiting a court ruling. Immigration and citizenship-related cases have the second greatest number of cases awaiting a ruling with just 16.

The bar charts allow us to see the types of cases in which the plaintiffs or the government have been most successful. The charts show that the government has been more successful in cases involving government structure or personnel than in any other type of case. Put another way: Plaintiffs have failed to temporarily block government actions in these types of cases more than any other types of cases.

However, plaintiffs have had far more success in temporarily blocking government actions in cases involving immigration and citizenship; government grants, loans and assistance; and civil liberties and rights.

In future newsletters, I will also discuss what infographics like these can and cannot tell us. Thanks for these infographics goes to my wonderful colleague, Pooja Shah, Just Security’s Director of Partnerships and Marketing.

II. My key takeaways for today: Contempt and what comes next

This week presents a true test for the rule of law in the United States. The key issue for this Thursday, April 17, must be – given the gravity of the situation – the crisis presented by two judges’ back-to-back findings that Trump officials engaged in “wilful disregard” and clear violations of their court’s orders. Both cases emanate from the administration’s sending people to the notorious CECOT prison in El Salvador.

Twenty-four hours before the publication of this Newsletter, the United States crossed into a new frontier. A DC district court judge held that he has probable cause to find executive branch officials acted in criminal contempt of court orders. Chief Judge James Boasberg wrote, “Defendants provide no convincing reason to avoid the conclusion that appears obvious from the above factual recitation: that they deliberately flouted” the court's command not to transfer purported Alien Enemies Act detainees into the hands of a foreign country. Full stop.

Wednesday's ruling by Boasberg followed on the heels of an order by Judge Paula Xinis, in a separate case in Maryland, who wrote that “Defendants have not yet complied with this Court’s directives, and Abrego Garcia appears to remain inexplicably detained in CECOT.” Another full and harrowing stop.

How quickly we’ve slid down this slope. It was just over a week ago, when the Fourth Circuit upheld Judge Xinis’s original order, that Reagan appointee Judge J. Harvie Wilkinson III warned in a concurrence that the government’s assertion that there is nothing that can be done to facilitate Abrego Garcia’s return puts the government on a dangerous path: “it takes no small amount of imagination,” he wrote, “to understand that is a path of perfect lawlessness.” The Wall Street Journal’s Editorial Board quoted Wilkinson in its own criticism of the president.

Judge Wilkinson and the WSJ Board wrote those warnings before the Supreme Court backed up Judge Xinis and blessed her order to “require[] the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” The government now stands in violation of that Supreme Court ruling (which had no dissents) and the district court order adhering to it. Plus the Supreme Court had already ruled unanimously in an appeal from Judge Boasberg’s case that everyone ripped from our shores to prison in El Salvador was entitled to a pre-removal hearing.

What comes next?

The two El Salvador prison cases and the district court judges’ approaches now work in tandem.

Absent a stay from the appellate courts, we will likely see judicial fact-finding in the weeks, not months, ahead. Judge Xinis has set in motion an expedited discovery process (to be wrapped up in 2 weeks) to determine whether government officials acted in “bad faith” in defiance of her order. That includes the production of documents, affidavits, and depositions. For his part, Judge Boasberg is quite likely to enter a fact-finding process – including “hearings with live witness testimony under oath or to depositions by plaintiffs” – to determine who in particular in the White House or elsewhere may have criminally approved the violation of his orders. (That’s assuming the government does not take Judge Boasberg’s proposed off-ramp of giving the detainees held in El Salvador access to habeas proceedings by next week.)

The Government’s triple bind

The government is in multiple binds here. If it takes Judge Boasberg’s offer to rectify the contempt “by asserting custody of the individuals” (the judge’s words) for the purpose of habeas proceedings, the administration will be admitting it can “deliver the body” (the heart of habeas corpus) – and thus contradict its claim before Judge Xinis and the world that its powerless to facilitate their release. Meanwhile, revelations in Judge Xinis’s fact-finding process may leave the government with no excuse to avoid rectifying the criminal contempt in the method Boasberg proposed.

What’s more, last night, the ACLU and Democracy Forward informed Judge Boasberg that they intend to bring a habeas claim seeking the return of the men held in CECOT, especially now that the Supreme Court has ruled (9-0) that they deserved a constitutional right to notice and reasonable time to file a habeas petition before being deported under the Alien Enemies Act. Working in their favor is a 2004 decision by DC district court Judge John Bates finding habeas applied to a U.S. citizen held in a Saudi prison (for more on that, see Steve Vladeck’s substack post). The government will likely argue that a 2010 DC Circuit case finding habeas did not extend to foreign nationals held at a U.S. military base in Bagram, Afghanistan works against plaintiffs’ arguments. But that case turned on the fact the detainees were held in an active warzone, and is likely distinguishable on a number of other grounds. (We will have more analysis of these cases in a legal deep dive at Just Security.)

What many of these boiling issues will come down to is whether the U.S. government can be shown to have “constructive custody” over the detainees in El Salvador. If so, bad faith behavior of officials will be manifest, and we will likely see another contempt order this time from Judge Xinis. That path to demonstrated lawlessness will amplify the constitutional crisis at hand. But it will also open up a path for the detainees in El Salvador to exercise their right to get a judicial hearing.

III. Keep your eye on the ball:

One of the most important cases for the rule of law and the role and function of independent agencies may be decided any day now by the U.S. Supreme Court. The Court has before it two combined cases that involve the president’s attempted removal of members of the National Labor Review Board. This is not one of those situations in which it’s easy to predict the outcome. Chief Justice Roberts has signalled he might support a fundamental shift in how much power presidents have in this space.

The case presents the Supreme Court with the opportunity to overturn a landmark 1935 opinion, Humphrey’s Executor. That decision unanimously held that the president does not have the power to dismiss officials of a multi-member quasi-legislative or quasi-judicial administrative body without cause if Congress has passed a statute forbidding it. I asked Professor Rick Hills, a colleague of mine and a foremost expert on this area of law, to explain the stakes of the NLRB case for Newsletter readers. Here’s what Rick wrote:

“Two institutions stand or fall with the principle that Congress can prohibit the President from firing agency chiefs without a good reason: Our civil service system, and our monetary system. These institutions practically define rule of law and financial stability.

“The civil service system depends on the independence of the Merit Systems Protection Board from the President. The MSPB adjudicates civil servants’ complaints of arbitrary, partisan, or other abusive adverse action. If the MSPB’s members serve at the pleasure of the President, then the judge and prosecutor are one and the same, and the workforce of the federal government will resemble Boss Tweed’s machine.

“The monetary system depends on the independence of the Federal Reserve Board of Governors from the President. The Fed oversees the United States’ monetary policy that determines banks’ interest rates and critically affects employment and inflation. Every modern, industrialized democracy understands that elected executives have incentives to juice interest rates for short-term electoral gains, which is why they all have independent central banks. If the Board of Governors serves at the pleasure of the President, our monetary system will devolve into Juan Perón’s Argentina, prone to politically driven hyperinflation and recession. And investors know this.”

On April 9, per Chief Justice Roberts, put a temporary hold on the DC Circuit’s en banc (full court) decision to keep the NLRB members in their positions on the Board pending the outcome of litigation. We now await the Supreme Court decision whether to keep that hold in place and what they might signal about the merits of the litigation. The administration submitted what should be its final brief to the Court just yesterday.

IV. What I’m reading and watching:

I recommend watching Andrew Weissmann’s video explainer of Judge Boasberg’s order and the nuances of civil versus criminal contempt. Reading the Wall Street Journal Editorial Board’s criticism of Trump’s attacks on Harvard. And Steve Vladeck’s prescient assessment of plaintiffs’ filing habeas claims in DC for detainees held in El Salvador.

V. From the mailbox:

I’ll be answering readers’ questions. Email me any questions on your mind about the ongoing litigation, and I’ll pick a few each week to respond to in this newsletter. (And, once again, if you don’t mind my mentioning your name in a future newsletter please say so in your email, otherwise I’ll consider any comments anonymous.)

Make sure you check the Litigation Tracker at justsecurity.org regularly for updates and let us know if we’re missing anything.

Thank you for being part of the Just Security community,

Ryan

Tess Bridgeman: Hey Ryan, and hello everyone. Welcome to Just Security's new Substack. If you've been looking for clear expert analysis on the most pressing issues in national security, democracy, law, and rights, you have come to the right place.

Ryan Goodman: Just Security has existed as a daily digital journal for over a decade in which we built a relationship of trust with our readers. We're now expanding onto Substack. Why? To provide additional ways to stay connected and engage with our audiences.

Tess Bridgeman: I'm Tess Bridgeman.

Ryan Goodman: And I'm Ryan Goodman. We're the co-editors-in-chief of Just Security. Just Security is an editorially independent, nonpartisan, and nonprofit publication.

Tess Bridgeman: Our mission is straightforward, to empower you with high quality analysis and commentary from leading experts.

Ryan Goodman:We're thrilled, thrilled, thrilled to introduce Just Security and Substack as a new hub to cut through the noise and get the facts and analysis that matter on a very timely basis.

Tess Bridgeman: Ryan and I have both served in government. We teach courses on law and policy, and we engage regularly with civil society organizations, with journalists, with members of Congress, with policymakers who want access to high-quality analysis and to get up to speed quickly. We believe that informed dialogue is essential for working toward a more just and secure world. That's why we're bringing our work to Substack to foster conversation and make our resources even more accessible.

Ryan Goodman: Starting today, you'll get access to newsletters designed to keep you in the know and ahead of the curve. At JustSecurity.org, we've built public resources like our litigation tracker, which monitors all the legal challenges against the Trump administration executive actions, all of them, now numbering over 190 cases, ranging from civil liberties to immigration, to the structure of government, to DOGE's activities, support for public health, defunding museums and libraries, and much, much more. We covered the waterfront. So now in Substack, I'll be sharing an exclusive newsletter at least twice a week with major updates in the court cases, key takeaways, infographics, all distilled for busy readers.

Tess Bridgeman: Ryan, can you tell us a little bit more about what'll be in the newsletter and how we can engage?

Ryan Goodman: Sure. So we've decided to call it "Stay in the Know" and I'll be taking questions from readers. I'll be highlighting what's coming up in key cases and zooming out and looking at the big picture across the entire span of the litigation.

Tess Bridgeman: I will be looking forward to having that in my inbox. You can also sign up for other Just Security content like our curated daily news roundup called the Early Edition. If you prefer audio, you can sign up on Substack to get the podcast version delivered every weekday morning. We'll also be spotlighting key articles, breaking news, and underreported topics. That will bring you context and analysis you won't find elsewhere.

And we'll be rolling out more subject-specific newsletters soon, so stay tuned for following the topics that matter most to you.

We'll also, as with all Just Security content, be making sure you hear directly from experts, including in short videos, breaking down major developments in real time, and zooming out to give you key context and help make sense of the bigger picture.

Ryan Goodman: And this is just the beginning. We believe that access to expert analysis is more important than ever.

Tess Bridgeman: If you want to support access to independent nonprofit sources of analysis and information, follow us here on Substack.

Ryan Goodman: We aim to keep all of our content free and available to all readers. So if you value our work, please consider a paid subscription. That kind of support helps us keep Just Security accessible for everyone.

Tess Bridgeman: So join us, stay informed, and be part of the conversation.

Ryan Goodman: And welcome to Just Security on Substack.