Judge Indira Talwani (D. Mass.) on Thursday granted in part motions for a temporary restraining order by 24 states, the District of Columbia, and voting rights organizations. The fourteen-day order stays central provisions of the Postal Service’s ballot mail rule for elections on or before November 3. Judge Talwani found the government’s interest outweighed by “the overwhelming risk of pervasive disenfranchisement.” (Order.) (WaPo.)

Judge Rita F. Lin (N.D. Cal.) on Thursday vacated the designation of Anthropic as a supply chain risk, holding that the designation was unlawful retaliation for the company’s criticism of the Department of Defense. “The empty invocation of national security is not a blank check to punish and retaliate against government critics,” Judge Lin wrote. (Opinion.) (Order of Final Relief.) (NYT.)

Three Stars and Stripes staff members sued the Department of Defense in the District of Columbia on Thursday, alleging that the Pentagon moved to fire editor in chief Erik A. Slavin and reporter Lara S. Korte. The paper had reported a day earlier on conditions aboard the U.S.S. Abraham Lincoln. (Complaint.) (NYT.)

Judge Christopher R. Cooper (D.D.C.) on Thursday pressed Justice Department lawyers over the Kennedy Center’s plan to inscribe “renovated and restored by President Donald J. Trump” on the building. The department notified the court later that day that the inscriptions would not be installed before October 8. (Notice.) (NYT.) (WSJ.)

New York Attorney General Letitia James and Governor Kathy Hochul sued the Rensselaer County Sheriff’s Office in state court on Thursday, seeking an order compelling the office to terminate its agreement with Immigration and Customs Enforcement and a declaration that the agreement is void and unenforceable. A federal judge declined to enjoin the ban earlier this month in a Justice Department suit. (Summons and Complaint.) (WSJ.)

Efforts to prosecute Anthony Fauci for contempt of Congress have reportedly stalled, with the Justice Department yet to receive a formal referral after Senator Rand Paul asked Vice President JD Vance to certify the contempt resolution and bypass a full Senate vote. (WSJ.)

Bob Bauer and Jack Goldsmith discussed the Postal Service’s mail-in ballot rule and the surrounding litigation. (Executive Functions.)

Jack Goldsmith argued that the Trump administration cannot “have it both ways” by claiming presidential control over prosecutions while defending the Comey indictment as an independent prosecutorial judgment. (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19. On August 21, the Chief Justice stayed the injunction “pending further order of The Chief Justice or of the Court.”

In April, the federal government indicted former FBI Director James Comey for his “86 47” Instagram post, which it claims was a true threat to kill or harm President Trump. Comey last month filed a motion to dismiss the indictment for vindictive and selective prosecution. The government last week filed its response.

In the response, the government denied that there was any evidence “beyond media speculation” that President Trump “directed then-Acting Attorney General Blanche, let alone the actual prosecutorial decisionmaker ([North Carolina] U.S. Attorney [W. Ellis] Boyle), to prosecute Comey in EDNC.” It then proclaimed:

And even if there were, the Chief Executive directing his subordinates to exercise core Executive functions is a feature, not a bug, of our constitutional system. The purported “independence” of DOJ that Comey cites, DE 36 at 2, is antithetical to the constitutional separation of powers (which lodges the Executive power in the President alone). See Trump v. Slaughter, 146 S. Ct. 2283, 2303 (2026). And as a matter of historical analysis, it is a myth.

There is a defensible Article II point buried here. Presidents since Washington have ordered federal prosecutions. Most administrations since Watergate have honored a functional norm that curtailed White House influence on DOJ law enforcement decisions. The Trump administration rejects this norm. And with the norm rejected, as a matter of Article II power, it is right: the president can direct a prosecution.

But the presidential power to direct a prosecution cannot justify a vindictive or selective prosecution. The unitary executive justifies vertical presidential control within the executive branch. It does not excuse executive branch actions that (as Comey alleges) violate the First Amendment or equal protection and due process principles.

And indeed, looked at another way, Trump 2.0’s maximalist unitary executive structure aids Comey’s claim of vindictive prosecution.

The Trump administration does not merely claim that the president has unitary executive power over the Justice Department in theory. Rather, by executive decree and consistent practice, it has made clear that the Department in fact has no independence from the president.

In February 2025, the president issued an order declaring that the “President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.” It added that “[n]o employee of the executive branch . . . may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to . . . positions advanced in litigation . . ..”

It is plausible to read the order to mean that if the president applies law to fact to conclude and declare that someone is guilty and should be prosecuted, no deviation from this conclusion is permitted within the executive branch. And this is exactly how the administration has understood the unitary executive in this context, since it has fired many lawyers for defying the president’s demand that his enemies be prosecuted.

Several prosecutors were demoted or pushed out of the Eastern District of Virginia for refusing to prosecute Comey in a different matter. When another EDVA prosecutor declined to revive an earlier attempted prosecution of Comey that failed, he, too, was fired.

After Erik Siebert, the U.S. Attorney for EDVA, found insufficient evidence to charge New York Attorney General Letitia James even though Trump had long demanded it, Trump said, “I want him out;” Siebert quickly resigned. Other career prosecutors reached the same basic conclusion, and they were fired for that reason by Trump’s loyalist, then-interim U.S. Attorney Lindsey Halligan.

There is other evidence of prosecutors fired for resisting the president’s wishes for prosecution of foes. And Attorney General Pam Bondi was pushed out partly due to her failure on this score.

This practice and its unitary executive legal underpinnings—not just the president’s order, but scores of legal briefs and other public actions and representations—make clear that subordinate executive branch officials, including DOJ officials, must follow the president’s will, including his prosecutorial demands.

The administration’s maximalist conception of the unitary executive is relevant to Comey’s vindictive prosecution claim. To prevail, Comey must show that he was punished “because he has done what the law plainly allows him to do.” The case law imposes a relatively high bar on such a claim.

The government invokes that bar to argue that whatever animus Trump harbored toward Comey cannot be attributed to U.S. Attorney Boyle, who brought the indictment. Boyle swears that he alone made the decision to prosecute.

But given the wishes of the president, the acknowledged absence of DOJ independence, and the formal and functional orders to follow the president’s will on pain of firing, Boyle had no lawful or practical choice. He was bound to execute the president’s vindictive wishes. He had to find a way to prosecute Comey, at least if he wanted to keep his job.

I can put the point another way. The two sides dispute Fourth Circuit and other circuit precedent on whether and when vindictiveness can be shown by proving that the charging prosecutor was influenced by a superior. I won’t get into those legal weeds here, since this case is unique. Any legal hurdle to inferring the vindictiveness of this charging prosecutor from the vindictiveness of this president should be lowered, if not eliminated, by the Trump administration’s unprecedentedly extreme claims of unitariness.

The Trump administration cannot have it both ways. It cannot claim extreme unitariness and fire people for failing to follow the president’s demand to indict enemies, on the one hand, and then claim, on the other, that the prosecutor in the Comey case made an independent decision to prosecute, uninfluenced by the president’s vindictive commands.

Mentioned:

• “Ensuring Citizenship Verification and Integrity in Federal Elections,” Executive Order 14399 (March 31, 2026)

• “Ballot Mail For Federal Elections,” final rule, 91 Fed. Reg. 54966 (United States Postal Service, August 21, 2026)

• “Trump v. California,” No. 26A124 (Supreme Court of the United States, August 24, 2026)

• “California v. United States Postal Service,” No. 1:26-cv-13917 (D. Mass, complaint filed August 26, 2026)

• “Supplemental complaint of the Democratic Party plaintiffs,” filed with an unopposed motion for leave, in DSCC v. Trump, No. 1:26-cv-01114 (D.D.C., August 25, 2026)

• “Supplemental complaint of the LULAC plaintiffs,” filed with a consent motion for leave, in LULAC v. Executive Office of the President, No. 1:26-cv-01132 (D.D.C., August 25, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

Today we’re going to discuss the Trump administration’s efforts to use the post office as leverage to impose executive branch standards on mail-in ballots and maybe some related requirements in connection with federal elections. You’re an expert on this, so please tell us what’s going on and how we should think about it.

Certainly. Let me give some background on the litigation currently in progress. Earlier this year, the administration issued, the president issued an executive order with three prongs to it. One, directing the Department of Homeland Security to develop a state citizenship list pursuant to a policy of attempting to identify non-citizens who would not be eligible to vote. Second, to prioritize law enforcement to protect against criminal violations of our voting laws. And third, to direct the postal service to initiate a rulemaking that would impose certain requirements on the transmission of ballots through the mails.

There were immediately lawsuits, a lawsuit in the District of Columbia, lawsuits in Massachusetts. They were brought by various parties, political parties, voting rights groups and 23 individual states, alleging that the executive order was unconstitutional and that any rulemaking of the kinds that the president was directing the postal service to develop would also be outside his legal authority. Injunctions were entered that found very specifically the executive order to be unconstitutional and that also enjoined the postal service from proceeding with a rulemaking of the kind specified in the executive order. And the Supreme Court ultimately heard this on the emergency docket and concluded that in fact, the case was not ripe for review. On standing and ripeness grounds, it concluded that it was not going to reach the merits of the matter. And it made a point of saying that it wasn’t expressing or implying an opinion on the merits. Two dissenting opinions filed, one by Justices Kagan and Sotomayor and the other by Justice Jackson.

On the Friday before the Monday that that opinion was issued, the United States Postal Service then issued a final rule and specified the kinds of requirements that it would impose as a condition for transmitting ballots through the mail. Now, with the final rule having been promulgated and with the Supreme Court having ruled, the challenges have been refiled. And there are cases currently pending by various parties, both in the District of Columbia and again, before the District Court in Massachusetts.

So that’s the state of play. And I want to talk a little bit about what’s next, but I’ll pause right there.

Before that, let me just ask you, so here’s what I understand the big 40,000-foot picture is. Basically, the Constitution gives Congress and the states the authority to regulate federal elections. And the executive branch is given no independent authority to regulate federal elections. And as I understand it, the Trump administration is trying to use its control over other things. And in this context, the post office, which is an executive branch agency, and it’s trying to leverage its power over the post office to weasel its way into regulating the federal election. Is that basically the 40,000-foot understanding of what’s going on here?

Yes. This is the second of the executive orders that he’s issued to, as the administration would put it, to ensure election integrity in the United States. Another one was previously issued in 2025, and you’re quite right. He is trying essentially, and I’ll put this carefully, by claiming that he’s merely exercising law enforcement authority. He is, so the challengers would say, and frankly, in my opinion, I think it’s true, looking to try to coerce the states, pressure the states, influence the states into adopting approaches to election administration and rulemaking policy that under the Constitution, he doesn’t have the authority to initiate directly.

Okay. Before we get to what you think of the likelihood of success for the plaintiffs in the litigation, what is the Trump administration’s goal here? I mean, they don’t like mail-in ballots. They think mail-in ballots hurt Republican candidates. They’re looking for advantages in the fall election. Is that it, or is it a broader disruptive goal, or is it both, or something else?

It’s a number of things. First of all, it’s a talking point. I think there is a wish on the part of the government to lay the foundation for claiming that any Democratic successes this fall are the product of a rigged election. We’ve heard the president say that Democrats don’t win unless they cheat, and he gave a national television address in which he said we have a corrupt and deeply flawed voting system that we can’t rely on. So they’re pushing that point in a variety of ways, including through taking executive actions of this nature. Secondly, we shouldn’t discount this is a personal preoccupation of his.

And thirdly, you’re quite right. One of the great concerns on the part of the challengers to these various administration initiatives is that it is going to foster voter confusion. There’ll be pressure on states to respond and uncertainty about what the rules will be. And as the court has said in other contexts, that kind of voter confusion can have an effect on the willingness or the comfort that voters have in participating in the electoral process.

But is the premise that the voter confusion will asymmetrically hurt the Democrats, is that the idea?

It will certainly undermine confidence in the election in the sense that he will claim later that it might have been rigged, whether or not he’s correct, that it will benefit his voters is very much open to dispute. As you know, many Republicans effectively tore their hair out over his attack on mail-in voting in 2020, and they believed it had the effect of depressing Republican turnout through the mails and adversely affecting his prospects in the election. So it may be here his personal whims or impulses or beliefs completely overcome the best political judgment he might have as the leader of his party.

Okay. So the Supreme Court said too early. The post office issued the final rule. We now have amended complaints and new complaints challenging the post office’s final rule as illegal. What do you think? Who’s going to win and how long is it going to take to get there?

One, I think it’s going to move very quickly. I think, in fact, I’m reasonably confident, but I obviously can’t predict that the U.S. Postal Service will be unable to impose these particular requirements as a condition for transmitting ballots to voters. It doesn’t have the authority to do that, in my view, and he doesn’t have the authority to direct them to do it. Whichever way you look at it, it’s illegal. And I’m quite confident that will fail. I’m less certain that some of the other attacks will necessarily succeed.

The government will argue that they’re assembling the so-called citizenship list internally for internal purposes. They’re not requiring the states to use it right now for any particular purpose. By the way, there’s an answer to that. We can discuss that and a deep concern about how these lists could be used. But that will certainly be their argument is that this is just for internal uses that need not concern the courts. Secondly, I think the administration is going to be able to successfully argue most likely that it can prioritize and always does prioritize law enforcement goals and that there’s nothing there that on the face of it poses any constitutional problem. There’s an answer to that, too, and challengers have made an argument against that. But I’m not sure those latter two are going to be nearly as vulnerable as I am certain the USPS rule will be.

Okay, so on the USPS rule, and the basic argument is that the executive branch just doesn’t have the authority under the relevant statutes, the post office statute and the constitution to issue a rule of the sort making these requirements?

That’s correct. To identify categories of a particular kind of mail and particularly election mail that it will only forward to voters or permit to be forwarded to voters if they meet certain specifications. If they’re on a list based on the final rule that’s recently been published, that list would control whether or not the postal service would agree to transmit these ballots. And there is, I don’t see any legal basis for it at all.

Independent of that, I don’t understand how these ballot requirements about the envelopes and the other requirements, I don’t see how they can be implemented in three months. Can you talk about that? How challenging is it? I mean, their state laws, I assume, have to be complied with before the state officials can change mailing ballot procedures. And even if it were lawful, and I agree with you based on what I understand, that it’s doubtful that the post office rules are lawful. I don’t understand how the states could possibly implement this in three months.

I don’t know how the executive branch could plausibly implement it or if it implemented it, anybody would have any confidence that the mechanisms for the development of this list and the review process by which it was determined whether these ballots could be mailed could ever justify any confidence, be free of error, which would, of course, be catastrophic to rush something into place that could cause any number of individuals to be unable to vote by mail as provided by their state’s laws.

And on the state side, there are enormous complications, including costs, facing election officials who have to prepare for elections on an extremely tight timetable. And many of them, incidentally, have printed ballots and spent money to do so. Some smaller jurisdictions use stocks of pre-printed ballots. It’s extraordinarily disruptive.

Yep. Well, that will take care of the standing and ripeness problems. There’s clearly injury in fact now. So anything else you want to say about the litigation? I mean, you mentioned that you thought the challenges on the other two issues were less likely to succeed, but there were concerns there. Can you talk about this?

Well, I’m less sure. Here is the fundamental problem. When the Supreme Court looked at the executive order, they decided to break each and every prong of that executive order that was under review into sort of separate buckets and analyze them separately. First came the state citizenship list. Then came the law enforcement prioritization. Then came the Postal Service proposed rulemaking, now final. What the challengers have said is you have to connect all of this.

The state citizenship list, of course, is one way that the federal government has begun, and it’s articulated this in various ways, has begun to tell the states, we’re watching you. And we are going to have our own view of who’s entitled to vote in these elections. And if you don’t agree with us, if you fundamentally are unwilling to cooperate with us in the management of your voter rolls to prevent illegal voting, we are going to resort to criminal prosecutions. It’s going to be hanging over your head. And I do think, by the way, that is the strategic thrust of these executive orders.

Now you can break out these pieces and justify each one of them on some legal theory, not the Postal Service prong, but the other two prongs. But the interrelationship of them, I think, is the only way to look at what the administration is trying to accomplish here and the disruptive effect and potential disruptive effect on voting that these executive orders and this last one in 2026 will have. But I do think the courts may break them out and the Postal Service rule will fail. I think the law enforcement prioritization prong will likely survive. Not sure about that. Because of the way the court is looking at it. And the same for the state citizenship list, where the government is going to be arguing, we’re just developing this. States can cooperate with us, not cooperate with us, but either way they can’t stop us from these internal preparatory steps that we’re taking to address our responsibilities to enforce the voting laws.

And could you just say a few more words about I take it that there’s a federal law the federal government is threatening to enforce that concerns facilitation of illegal voting in a federal election. Is that right? I mean, is there a federal criminal statute that covers that type of behavior such that this is another leverage point of the executive branch? They have the power to enforce criminal law to prosecute. So is there a law of that sort that they could potentially prosecute that’s lurking in the background? I take it there is.

Well, there’s one, most centrally—but there are other criminal laws that bear on the voting process—the federal prohibition on non-citizen voting in federal elections. And that’s a criminal prohibition. That’s correct.

Yeah. It strikes me that this is the big threat that the executive branch really has, because it’s very hard for courts to monitor and to certainly enjoin the executive branch from exercising prosecutorial discretion to investigate and enforce and prosecute under federal criminal laws. And that strikes me as a very powerful leverage point, independent of the election power, although it is enforcing election laws, that the executive branch has for disruption. Now, I take it that this power threatened before the election would be exercised after the election. And there may be, it may be groundless, of course, but it does seem like a serious federal power that a state official would be worried about. Is that fair?

Absolutely. I mean, this is an administration that has espoused very openly that the president controls the conduct of the Department of Justice. Essentially, it has to follow his dictates on any issue that he cares sufficiently about that he issues any such dictate. And so you have to worry about how the prosecutorial power will be used in aid of the president’s preoccupation with non-citizen voting, which he has said repeatedly is pervasive when all the data indicates that that is simply not true.

I also want to add the threat in advance is one of the various ways the administration is trying to leave its footprint all over these elections. That also has an effect right from now through election day. And I think this is one of the, one of the larger facets of this, the larger significance of this entire episode, which is what happens between now and election day. And you’re right, there are all sorts of things that could happen afterwards. But what happens between now and election day, if the administration continues to try to roil the electoral landscape, to create uncertainty, to raise questions about whether the voters should have confidence in the electoral process, what other steps, other executive orders, other administration official announcements might be made that could have a pretty dramatic impact on the electoral process. And there’s going to be a race into the courts. There’s already been a significant amount of litigation, not just on this particular issue. And that is also a powerful tool in the kit of a president who’s determined to wage war on an electoral process that he’s declared to be fundamentally corrupt and flawed.

Okay. And wrapping up, let’s go back to the litigation that’s happening now in the district court. You said it was going to go quickly. This raises a question. It’s late August now, the election is a little over three months away. There’s a principle in Supreme Court jurisprudence called the Purcell principle, which says that federal courts cannot intervene too close to an election if the intervention basically would cause confusion about what the rules are in the election. I worry that that principle is in theory going to operate here strongly to the government’s advantage, that I can just see it now that there’s going to be this challenge. The first thing the government’s going to say is, sorry, you can’t challenge this. It’s too close to the election and it would cause confusion. Now, this is something that happens. It’s an equitable doctrine. It tends to come up in the emergency relief, interim order relief context. What do you think about, how does your claim that this is going to go quickly intersect with the Purcell principle? What is your understanding of it?

In this case, the Supreme Court has very specifically stated that it understands that there’s a challenge to the merits of the USPS rules, just to focus on that for a second, but that it came to the court when it wasn’t ripe for decision when there were standing problems. I don’t think there’s any question that the court will hear this case and resolve it on the merits. Again, it will be on the shadow docket. It will be resolved on an emergency basis, but the court will address it. I’m not worried about the application of the Purcell doctrine, which in any event, I don’t think the Supreme Court views itself as being bound by. I think this is a lower federal court equitable doctrine.

I’m not worried about this particular case. I do think there are other circumstances in which there is activity by the executive branch, potentially by state legislatures, election officials with emergency rulemakings under various state laws that are going to raise the question of whether in fact there’s been an abuse of the electoral process that’s going to foster the kind of voter confusion that the court was concerned with in Purcell. The principle, granted, applies only to lower federal courts. The broader policy is one. The broader concern is one that should apply and should inform the claims that are going to be made against this kind of disruptive behavior. The lawsuits that will be filed will certainly rely on Purcell to say that this kind of effort to alter or reshape the rules close to the election has really significant costs and those claims are going to be cast in constitutional and other legal terms.

But who do you think is going to make the Purcell argument there?

Well, in those cases, again, I’m going to look at the administration’s sort of chaos-inducing strategies. If there’s another executive order, for example, or there are specific actions by DHS with the use of the citizenship list in what appears to be an attempt to affect the way elections are conducted in this cycle, I think that the arguments that are going to be made by challenging those actions are going to be informed by the view, this is way too close to the election to be permissible. It’s going to have a dramatic effect on voter understanding of the electoral process and on the incidence of participation. And I think that that’s what we have to be most concerned about as this litigation unfolds over the next few months.

Yep. So we don’t need to go down the Purcell path more. I just want to say, I think it’s clear that the doctrine on Purcell, again, without getting too much into it, is confused. They’ve suggested that the government can do something late, and any confusion caused by that is not implicated by the Purcell principle, because the Purcell principle is about federal court intervention and about understanding how the equities get balanced. So again, I’m not disagreeing with you necessarily. I’m just saying I think that Purcell is going to play an important role over the next couple of weeks in figuring out whether the lower courts and the Supreme Court are going to halt this rule and which parts of it.

I want to just clarify one point. I absolutely recognize Purcell applies to lower federal court interventions. But when I say the policy behind Purcell, the court talks, and I’m literally quoting from it, about considerations of this nature that are unique to the electoral context. And those considerations, by the way, also shaped a recent court decision about candidates’ standing to challenge election rules in a case called Bost v. Illinois. So the court is aware that the election context is a unique one for the evaluation of interventions in the electoral process that have the effect of altering rules close to the election. And that would apply, it seems to me, logically to interventions by others than just lower federal district courts, although granted, as I said, I think that would inform rather than shape the kinds of claims that would be made in response to those kinds of late minute or last minute interventions.

Yeah, I’ll give you the last word on that. Thanks, Bob.

Thank you, Jack.

Judge Indira Talwani (D. Mass.) on Wednesday vacated on ripeness grounds the preliminary injunction in League of Women Voters v. Trump, which had blocked implementation of section 3 of the mail-in ballot executive order. That section directed the U.S. Postal Service to initiate a rulemaking on mail-in and absentee ballots. (Order.) (Politico.) (NYT.) (WaPo.) Later on Wednesday, plaintiffs in League of Women Voters filed a motion for emergency injunctive relief challenging the Postal Service’s final rule. (Mem. in Supp. of Motion.)

A coalition of 24 states and the District of Columbia filed a new lawsuit in the U.S. District Court for the District of Massachusetts on Wednesday requesting emergency relief from the Postal Service’s final rule. (Complaint.) (Motion.)

A divided panel of the U.S. Court of Appeals for the Third Circuit denied Rep. LaMonica McIver’s motion to dismiss counts one and two of her indictment for allegedly assaulting federal immigration officers during an oversight visit to Delaney Hall. The panel remanded for the district court to reconsider her motion as to count three of the indictment. (Decision.) (NYT.)

Judge Carl Nichols (D.D.C.) denied the Justice Department’s motion to dismiss Steve Bannon’s indictment for contempt of Congress. (Order.)

Judge Fernando Rodriguez, Jr. (S.D. Tex.) on Wednesday denied Minnesota’s motion for a temporary restraining order barring the release from Texas custody of an ICE agent until Texas Governor Greg Abbott signs a rendition warrant facilitating the agent’s extradition to Minnesota. The agent faces criminal charges in Minnesota for shooting an individual in the leg. (Order.)

Federal Reserve Governor Lisa Cook on Wednesday responded to the administration’s allegations that she committed mortgage fraud. In a letter, Cook’s lawyer reportedly wrote that her listing an Atlanta condominium, where she had not lived, as a primary residence on a mortgage document was an “entirely inadvertent oversight.” (NYT.)

Steven J. Kochevar argued that states should treat their data holdings as leverage against federal overreach, from auditing what they collect and share to “forc[ing] the federal government to use data on terms that states approve of.” (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19. On August 21, the Chief Justice stayed the injunction “pending further order of The Chief Justice or of the Court.”

Judge Indira Talwani (D. Mass.) on Tuesday held that the United States Postal Service violated the court’s preliminary injunction by issuing a final rule implementing the mail-voting provision of President Trump’s executive order on federal elections. Judge Talwani imposed no remedy. (Memorandum and Order.) (WaPo.) (Axios.) The injunction was issued in a case brought by voting rights groups and is separate from the injunction stayed by the Supreme Court in Trump v. California, a suit brought by 23 states and the District of Columbia.

A divided panel of the Ninth Circuit on Tuesday affirmed most of a preliminary injunction barring the Department of Housing and Urban Development and the Department of Transportation from imposing new conditions on grants already awarded to 31 local governments. Under HUD’s conditions, grantees could not use the funds to promote “gender ideology,” fund “elective abortions,” or facilitate “illegal immigration.” (Opinion.) (Reuters.)

The Justice Department’s Office of Legal Counsel on Tuesday issued an opinion stating that the Establishment Clause of the First Amendment does not require restrictions on federal funds based on their intended religious use or the religious status of a recipient organization. The opinion went on to conclude that federal regulations that impose use-based religious restrictions on general federal funding programs presumptively violate the Free Exercise Clause. (Opinion.)

Bruce Swartz, Kit Beyer, John David Cobb, and Riler Holcombe argued that grand juries not only serve a defensive role in checking government prosecutions but can play “an important, yet often overlooked, affirmative role”: investigating government criminal misconduct or corruption. (Just Security.)

Tom Uren argued that the “U.S. government’s plan to enlist private-sector hackers to target cybercriminals is controversial, but it addresses a real problem and is surprisingly measured.” (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19. On August 21, the Chief Justice stayed the injunction “pending further order of The Chief Justice or of the Court.”

The Supreme Court on Monday issued a stay pending appeal of a district court injunction blocking federal agencies from implementing portions of President Trump’s executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The Court held that the government was likely to prevail on the merits of its argument that the district court lacked jurisdiction to enter its judgment. (Order.) (SCOTUSBlog.) (NYT.) (WSJ.) Chris Geidner broke down the Court’s opinion. (Law Dork.) Steve Vladeck offered eight points of context for the decision. (One First.)

A three judge panel of the Ninth Circuit on Monday lifted a lower court’s preliminary injunction prohibiting Border Patrol agents from conducting stops in Kern County without reasonable suspicion that the target is a noncitizen who violated immigration laws. The panel held that the district court erred in its analysis of standing and remanded to the district court. (Order.)

Judge Sharon L. Gleason (D. Alaska) on Monday dismissed for lack of standing a lawsuit filed by environmental groups challenging President Trump’s repeal of President Obama and President Biden’s withdrawals of portions of the Outer Continental Shelf from oil and gas leasing. (Order.)

The Department of Homeland Security issued a notice of proposed rulemaking on Monday that would charge U.S. employers seeking to hire foreign workers through the H-1B visa program a $103,265 fee. (Notice.) (WaPo.)

Steve Vladeck argued that Chief Justice Roberts’ Friday order in the White House ballroom case illustrates “how standardless the Court’s approach to ‘administrative’ stays appears to be.” (One First.)

Chris Mirasola argued that an August 14 opinion issued by the Justice Department’s Office of Legal Counsel on the Posse Comitatus Act is legally flawed and dangerous. (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.” The government filed a second supplemental brief on August 24 to inform the Court of a promulgation of a final rule by the U.S. Postal Service that imposes new requirements for federal ballot mail. The Court on August 24 issued a stay pending appeal of the district court’s injunction.

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19. On August 21, the Chief Justice stayed the injunction “pending further order of The Chief Justice or of the Court.”

Judge Indira Talwani (D. Mass.) on Sunday gave the government until 8:00 a.m. Tuesday to answer voting groups’ motion to enforce her August 11 injunction barring the Postal Service from completing its mail-ballot rulemaking before the midterms. The final rule, issued late Friday to be published Wednesday, would cut off mail-ballot delivery in states that withhold voter data. (Final Rule.) (NYT.) If the government wants until Thursday to respond, Judge Talwani wrote, she will enter a temporary restraining order staying publication. (Docket.) For background, see a previous Roundup.

Judge Jeannette A. Vargas (S.D.N.Y.) on Friday vacated the State Department’s suspension of immigrant visas for nationals of 75 countries. Judge Vargas held that the policy, which directed consular officers to refuse the visas without any individualized assessment of the applicant, violates the Immigration and Nationality Act’s bar on discrimination by nationality. (Opinion and Order.)

The Chief Justice on Friday stayed the injunction barring further construction of the White House ballroom “pending further order of The Chief Justice or of the Court.” Judge Richard J. Leon’s (D.D.C.) injunction had been set to take effect that day. (Order.) (NYT.)

Judge F. Kay Behm (E.D. Mich.) on Friday dismissed the Justice Department’s suit to force Washtenaw County to cooperate with Immigration and Customs Enforcement. “Neither the federal government nor the President may conscript local officials to enforce their will,” Judge Behm wrote. (Opinion and Order.)

Judge Stephanie A. Gallagher (D. Md.) on Friday ordered the government to facilitate the return of a man it removed in July despite an immigration judge’s grant of protection under the Convention Against Torture. The government revoked that protection without notice or a hearing. (Memorandum Opinion.)

A Department of Education staff report made public on Friday recommends denying the American Bar Association’s legal education council continued recognition as the accreditor of the nation’s law schools. An advisory panel will take up the recommendation on September 23. (Report.) (WSJ.)

President Trump announced on Friday that Ed Martin will leave the Justice Department to work on election litigation ahead of the midterms. (Truth Social.) Martin has served as pardon attorney and led the department’s Weaponization Working Group. (The Hill.)

Andrew C. McCarthy argued that the White House Transparency Task Force had no lawful basis to publish a 2015 FBI interview of former Representative Eric Swalwell, whom the Justice Department has not charged. (National Review.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19. On August 21, the Chief Justice stayed the injunction “pending further order of The Chief Justice or of the Court.”

A divided Second Circuit panel held on Friday that John A. Sarcone III never lawfully served as Acting U.S. Attorney for the Northern District of New York. The court affirmed the quashing of two grand jury subpoenas he issued to the New York attorney general’s office over its investigations of the National Rifle Association and President Trump. (Opinion.)

A Ninth Circuit panel on Thursday refused to pause a preliminary injunction governing conditions at the Adelanto ICE Processing Center while the government appeals. Even where a contractor runs the facility day to day, the panel ruled as part of its “likelihood of success” analysis that the government “is ultimately responsible for ensuring that the conditions of confinement are constitutionally acceptable.” (Order.)

Judge Michael McShane (D. Or.) on Thursday preliminarily enjoined the Department of Homeland Security and the Federal Emergency Management Agency from attaching anti-DEI and gender-ideology conditions to the City of Salem’s disaster relief grants. “There is simply no nexus between the Challenged Conditions and the grant programs here,” Judge McShane wrote. (Opinion and Order.)

Religious groups suing over immigration enforcement at houses of worship asked Judge F. Dennis Saylor IV (D. Mass.) on Thursday to order the Department of Homeland Security to show why it should not be held in contempt. Their motion says an undercover ICE agent wearing a hidden microphone sat through a two-hour class at a Minneapolis church in May. (Motion.) (Politico.)

The New York Times reported that the Department of Homeland Security has identified 185 potential noncitizens on Nevada’s voter rolls, against the 15,903 it announced last month. A department official said the larger number “hasn’t had a full manual review of each one.” (NYT.)

The Atlantic reported that the National Park Service now runs a separate queue of “White House priorities” which get resources ahead of other projects, while spending on parks outside Washington has fallen by $854 million this fiscal year. (The Atlantic.)

Bob Bauer and Jack Goldsmith argued that an Office of Legal Counsel opinion dated Aug. 10 exaggerates the law in concluding that the presidential communications privilege protects the president’s communications with private advisers. No judicial decision “recognizes” or establishes a “precedent” for extending the privilege that far, they wrote. (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19.

On August 10 the Office of Legal Counsel issued a strange opinion to the White House Counsel about the presidential communications component of executive privilege. It is strange because the White House asked whether privilege protects presidential communications with private advisers but did not, according to OLC, “indicate a specific adviser or subject matter.” It is strange because OLC’s foreordained answer to this abstract question—yes, in theory, with qualifications—does not serve any obviously useful purpose. And it is strange, finally, because the opinion exaggerates the state of the law in a way that highlights the absence of precedent for its conclusion.

Which raises the question: Why did the White House ask, and why did OLC publish? We are not sure.

Motivations

The OLC opinion was surely coordinated within DOJ and was almost certainly written with two events in mind.

The first event is an American Bar Association lawsuit against executive branch officials and agencies challenging the constitutionality of the Trump administration’s “Intimidation Policy” against major law firms over alleged ideologically slanted hiring and pro bono practices. The ABA issued subpoenas to Trump’s personal lawyer and adviser, Boris Epshteyn, seeking documents concerning communications with the relevant firms or related to the executive orders and settlements associated with the policy, as well as attendance at a deposition.

In response, the Department of Justice moved to quash the subpoenas on the ground that they in part sought information protected by the presidential communications component of executive privilege. At the same time, it declined to confirm or deny “whether the President even received advice from any third party,” including Epshteyn, in connection with the executive orders. The government also asserted that the attorney-client privilege would “completely and totally” shield from disclosure Trump’s communications with an adviser who was also one of the president’s attorneys. Finally, the administration subpoenaed the targeted firms for records and testimony involving Epshteyn, including “all communications… sent to Boris Epshteyn, received from Boris Epshteyn, or participated in with Boris Epshteyn.”

The second event is one the OLC opinion anticipates: a suite of investigations Democrats plan to conduct if they win majority status in at least one chamber of Congress. Democrats plan to focus on the testimony of non-governmental persons who have had various dealings with the Trump administration on the theory that “investigating private companies and outside financial players will prove more fruitful than directly confronting a White House they expect to resist oversight.” The range of inquiries and third-party witnesses is potentially vast, and includes, to name just a few, individuals involved in the president’s crypto and other national and international business interests; donors to the White House ballroom construction; contractors for the renovation of the reflecting pool and construction in the capital; private prison operators and security firms that have contracts with the Department of Homeland Security; and commodity traders involved in the government’s sale of Venezuelan oil.

The Presidential Communications Privilege

“The doctrine of executive privilege,” OLC wrote in 1982, “defines the constitutional authority of the Executive Branch to protect documents or information in its possession from public disclosure and from the compulsory process of the Legislative and Judicial Branches.” One component of the doctrine, in the words of United States v. Nixon, is the “privilege of confidentiality of Presidential communications.” As the D.C. Circuit explained in an important decision, In re Sealed Case, the privilege applies to “documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential” but is qualified and thus can be overcome by “an adequate showing of need.” The privilege is limited to communications connected to the performance of presidential responsibilities.

In re Sealed Case held that this privilege extends beyond “direct communications with the President” to “communications that involve his chief advisers,” including “communications which these advisers solicited and received from others as well as those they authored themselves.” The court did not explain what it meant by “others” and did not consider or address the problem of private parties. It acknowledged that its “extension” of the privilege, “unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President.” It ruled that “to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decisionmaking process is adequately protected.”

The OLC Opinion

The OLC opinion notes correctly that presidents have often sought advice from persons outside the executive branch in connection with presidential decisionmaking. It argues that the purposes of the privilege—to ensure that the president receives candid and comprehensive advice related to presidential decisionmaking—are implicated by, and thus should extend to, advice received from private parties. OLC then claims that “courts have recognized that the privilege applies to communications with private advisers” and reiterates that “[p]recedent from . . . courts confirms that executive privilege extends to presidential communications with private advisers.”

These are misleading statements. No judicial decision “recognizes” or establishes a “precedent” that the presidential communications privilege extends to communications with private advisers. In re Sealed Case did not consider the issue and one can view its dicta on various matters to cut both for and against the privilege in that context. AAPS v. Clinton, another D.C. Circuit opinion, invoked the privilege to avoid a constitutional question in construing the Federal Advisory Committee Act to not reach a task force of government officials chaired by the First Lady. It stated that a “statute interfering with a President’s ability to seek advice directly from private citizens as a group . . . raises Article II concerns,” but did not consider or address whether such communications could be withheld from compulsory process. Other decisions OLC cites are even further from its legal conclusion, and OLC doesn’t discuss precedents cutting the other way. When DOJ in a 2007 opinion concluded that the presidential communications privilege extended to parties “outside the Executive Branch” (mainly focused on members of Congress), it relied on In re Sealed Case but did not suggest that Sealed Case or any other decision “recognizes” or establishes a “precedent” in support of the presidential communications privilege. The issue remains open in the judiciary.

OLC correctly notes three qualifications to its abstract analysis. First, the privilege is “limited to communications in performance of a president’s responsibilities of his office and made in the process of shaping policies and making decisions” (cleaned up). Second, the privilege applies “only to communications with the President, or communications solicited and received by the President or his direct advisers.” Third, “the privilege requires the communication to have been confidential at the time of its creation and that the President continue to treat it as such.” These stated conditions, offered as “a general matter,” highlight the tentative and hypothetical nature of the OLC analysis and its dim applicability to any real-world controversy.

Why Seek and Why Publish?

It is a bit of a mystery why the White House Counsel solicited this OLC opinion on a highly abstract hypothetical question and why either office thought it a good idea to publish an opinion that exaggerates the law on the extension of the presidential communications privilege to private advisers.

On the solicitation, the White House is clearly concerned about congressional investigations after the midterms. The Counsel’s Office has, for example, given “private briefings to the administration’s political appointees on how to best prepare for congressional oversight” in anticipation of the possible midterm results. The OLC opinion considers the applicability of its analysis to congressional disclosures. Perhaps the Counsel thinks the opinion will help on privilege claims when Congress seeks third-party testimony and documents.

But the OLC opinion will not help, and not just because its analysis is so hypothetical. It will at most furnish a citation in a letter or a talking point on the House floor. Democrats will give it no weight. And this is not unusual. Neither party in Congress cares what the president’s lawyers say on privilege issues. No OLC opinion has prevented Congress from holding an administration official in contempt for refusing, on privilege grounds, to comply with a subpoena for documents or testimony. In recent years, a Republican House held the attorneys general of both the Obama and Biden administrations in contempt despite supportive DOJ opinions. A Democratic House will give Trump’s OLC no more weight.

Nor do OLC opinions of this sort carry any weight in the federal judiciary. Occasionally courts treat an OLC opinion as evidence supporting deference based on “a consistent course of agency interpretation” of a federal statute or regulation, which is not implicated here. And OLC opinions and practices can be relevant when federal courts believe a longstanding executive branch practice of action and interpretation is relevant to a constitutional issue. The OLC opinion invokes this principle for the existence of executive privilege, which courts have long recognized, and perhaps for the fact that presidents have long consulted private parties, which is well known and says nothing about privilege. But the principle has no bearing on the application of the presidential communications privilege to private parties, on which there is no longstanding practice, assuming such practice is relevant. There is thus no basis for courts to defer here.

And beyond its exaggeration of the state of the law, there is an administration-specific reason why this OLC opinion will not be taken seriously by courts. Whatever credibility OLC might have had with outsiders in another administration as an interpreter of Article II—a contested matter—OLC in Trump 2.0 can have no credibility outside the executive branch. This is not a comment on the work of OLC. Rather, it follows from the Trump administration’s conception of presidential power.

The attorney general just a few days ago declined to state that DOJ is independent of the president. This is true as a constitutional matter. It is also true that Article II gives the president ultimate authority to interpret law for the executive branch. Presidents since Watergate, and even before, established functional forms of DOJ independence because they thought it served the aims of the presidency. Of relevance here, presidents before Trump 2.0 delegated their legal interpretive power to subordinate government lawyers, including in OLC, and expected them to offer candid legal advice. As one of us once wrote, “Presidents embraced this arrangement because legal compliance demands it and because systemic inattention to law leads to bad policy or undesirable political or legal risk.” These forms of quasi-independence, subject ultimately to a rare presidential check, were important to OLC’s credibility. So was its practice—sometimes in opinions, more often informally—of advising that a presidential course of action is unlawful or carries significant legal risk.

But the Trump 2.0 administration has chosen a different course. It has demanded fierce personal loyalty to the president and his decisions as a criterion for hiring senior government lawyers. It has removed, pressured, or marginalized government lawyers who disagree with or stray from the White House party line. And it has issued directives to formalize the elimination of independent lawyerly judgment.

The main such directive says that the President and attorney general, OLC’s direct boss, “shall provide authoritative interpretations of law for the executive branch,” and adds that the AG is “subject to the President’s supervision and control.” But the president doesn’t care about law (or thinks anything he does is lawful). And the attorney general has made plain that he is a yes-sayer and that the Justice Department in its advisory function will not object to anything of any importance to the president or on which the president purports to have legal views.

Then-Acting Deputy Attorney General Emil Bove explained DOJ’s view in his 2025 letter firing Acting U.S. Attorney Danielle Sassoon: “You lost sight of the oath that you took when you started at the Department of Justice by suggesting that you retain discretion to interpret the Constitution in a manner inconsistent with the policies of a democratically elected President and a Senate-confirmed Attorney General.” Even if this is not true in every instance, it is the official policy of the administration, so it is true in appearance, which is enough by itself to wreck OLC’s outside credibility in its advisory function to the White House.

The administration may have nonetheless thought it would be useful to have on the books even a weak and abstract OLC opinion on the extension of the privilege to protect communications with private parties in an effort to generate a pattern of executive branch practice on the issue. But as noted, it is too late in the day, and this opinion too hypothetical, to achieve that or any other useful end that we can discern.

The Looming Interim Order Battle

It is the president’s prerogative to ask federal courts for a novel extension of the presidential communications privilege, as happened in In re Sealed Case. But that, and not application of recognized precedent, is what the government is seeking in the ABA case. We do not have space here to address the merits of the government’s presidential communications claim. The issue is complex—far more complex than OLC’s one-sided analysis lets on. And the stakes travel far beyond the ABA dispute.

The White House is gutting the civil service ranks while relying on a private advisory network far beyond past “kitchen cabinets” or routine consultation of trusted outside advisers. Given the deeply privatized character of this administration—from diplomacy to every form of domestic policy to private fundraising for pet projects, and on and on—the extension of the privilege to include communications with outside private “advisers” goes to the nature of the regime. The answer to the privilege question thus has enormous consequences for the possibility of accountability for this administration.

The answer for a very long time will almost certainly depend on a Supreme Court interim order ruling, perhaps in the ABA case. Trump was able to run out the clock on major separation-of-powers disputes in Trump 1.0 because the administration won the relevant interim orders battles. This issue could turn out to be the major interim order fight of 2026.

Judge David W. Dugan (S.D. Ill.) on Wednesday denied Illinois’s motion to dismiss the Justice Department’s lawsuit against the state, which alleges that the Illinois Bivens Act and Court Access, Safety, and Participation Act (CASPA) violate the Supremacy Clause by controlling the federal government’s operations. The Bivens Act allows individuals subject to civil immigration enforcement to sue for violations of their constitutional rights and CASPA bars civil arrests within 1,000 feet of a courthouse of certain individuals attending or leaving state-court proceedings. (Order.)

The Justice Department suggested in a filing on Tuesday in the prosecution of James Comey that Comey had an “apparent financial incentive to stir up controversy” by posting the seashell photo on social media, as this occurred “just days” before Comey released a new novel. (Response.) (WaPo.) The Justice Department also filed its response on Tuesday to Comey’s motion to dismiss the indictment against him for vindictive and selective prosecution. (Response.)

Mary Comans, the former chief financial officer of FEMA, whom Judge Michael S. Nachmanoff (E.D. Va.) held was unlawfully fired in February 2025, filed proposed findings of fact on Tuesday ahead of a “name-clearing hearing.” The filing states that Comans “did not authorize the payments to New York City” that Trump administration officials referenced in statements describing her firing. (Proposed Findings.) (Order Regarding Findings and Hearing.) (WaPo.)

The Department of Health and Human Services told the New York Times on Wednesday that the administration no longer intends to recruit retiring Defense Department lawyers to provide legal representation to unaccompanied migrant children in immigration proceedings. (NYT.)

A Politico review of over 20,500 decisions in immigration proceedings found that “[j]ust eight judges, six of them appointed by President Donald Trump,” have delivered roughly a third of ICE’s victories in mandatory detention cases. The president’s second-term appointees have ruled for ICE in more than 60 percent of the detention cases they have decided, almost twice the rate of the judges the president appointed during his first term. (Politico.)

Erwin Chemerinsky and Aziz Z. Huq argued that “state and local governments have constitutional and legal powers that can be harnessed as a force to challenge repressive federal actions.” The essay introduces a Just Security series on state responses to federal overreach. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18. The government filed its reply on August 19.

A unanimous panel of the Fourth Circuit on Tuesday upheld a lower court’s preliminary injunction blocking the Department of Homeland Security from enforcing a new policy granting officers greater discretion to enforce federal immigration laws at or near places of worship. The injunction’s scope is limited to the plaintiffs’ religious sites. (Opinion.) (CBS News.) For background, see a previous Roundup.

Judge Brian E. Murphy (D. Mass.) on Tuesday lifted an administrative stay blocking the Trump administration from terminating Ethiopia’s Temporary Protected Status designation. Judge Murphy dismissed plaintiffs’ Administrative Procedure Act, procedural due process, and ultra vires claims but allowed their claim challenging the termination under the Fifth Amendment’s Equal Protection Clause to proceed. (Order.) (CNN.)

The government of Liberia announced on Tuesday that it would accept 1,200 third-country deportees from the United States over the next year, with “the first batch of 20 individuals” expected to arrive on Thursday. (Statement.) (NYT.)

The New York Times reported on Tuesday that President Trump has installed allies in the offices of inspector general who have focused their investigations on allegations of fraud at the state level instead of scrutinizing federal agencies within the Trump administration. (NYT.)

The New York Times also reported on Wednesday that President Trump is expected to nominate White House domestic policy official Dr. Heidi Overton to serve as the next commissioner of the Food and Drug Administration. (NYT.)

Following reports that the Justice Department has empaneled a special grand jury in Washington, D.C., Anna Bower offered a legal primer on special grand juries, though she noted that this special grand jury’s task “remains a mystery.” (Lawfare.)

Elie Honig argued that an attempt by President Trump to fabricate a national emergency to seize the November midterm elections would “wreak chaos and maybe worse” but legally “won’t work.” (Stay Tuned.)

Emile Ayoub and Hannah James argued that the Department of Homeland Security’s use of administrative subpoenas to acquire personal information of critics of the Trump administration’s immigration policies highlights the obsolete nature of Fourth Amendment doctrine. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. The National Trust for Historic Preservation filed its response on August 18.

A three judge panel of the Ninth Circuit on Monday affirmed a lower court ruling disqualifying the acting U.S. Attorney for the District of Nevada, Sigal Chattah, from supervising cases against defendants who challenged their prosecutions on grounds that Chattah’s appointment was legally defective. The panel held that under the Federal Vacancies Reform Act of 1998, the Attorney General may not appoint an acting U.S. attorney by designating that person as first-assistant to an already-vacant office. The Trump administration said it would appeal the decision. (Opinion.) (NYT.)

Judge Theodore D. Chuang (D. Md.) on Monday held that the General Services Administration and the Federal Bureau of Investigation violated the Administrative Procedure Act by abandoning plans to relocate the FBI’s headquarters to Maryland and repurposing hundreds of millions of dollars in associated funds. (Opinion.) (NYT.) (WaPo.)

Four counties and cities filed a lawsuit on Monday in the U.S. District Court for the District of Columbia challenging the Department of Homeland Security and Federal Emergency Management Agency’s conditioning of homeland security grants on localities adopting mandatory changes to their election procedures. (Complaint.)

The Justice Department intends to deploy roughly 1,000 monitors to polling sites across the country in November to promote security in the midterm elections. (Bloomberg.) (WaPo.)

The Justice Department issued a final rule on Monday that sets forth a process for individuals with felony convictions to apply to have their gun rights reinstated. (Press Release.) (Rule.) (WSJ.)

Orin S. Kerr discussed the legality of a government program announced by President Trump last week that would allow United States companies to conduct cyber operations against foreign criminal organizations. (Volokh Conspiracy.)

Steve Vladeck argued that the Fifth Circuit’s dismissal of an appeal challenging the president’s invocation of the Alien Enemies Act “drives home how much the government had already lost.” (One First.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed asupplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. On August 14, the Chief Justice requested a response by 12 p.m. on August 18.

Chief Justice John Roberts on Friday requested a response by noon on Aug. 18 to the government’s application to stay the injunction blocking construction of the White House ballroom. The application describes the project as an “integrated military complex” which is “vitally required by national security.” (Application.) (Docket.) For background, see a previous Roundup.

The Sixth Circuit on Friday declined to rehear en banc United States v. Benson, leaving in place a June ruling that the Civil Rights Act of 1960 does not entitle the Justice Department to Michigan’s unredacted voter registration list. Judge Murphy concurred in the denial, reading the panel opinion to rest on “curable procedural problems” that a new demand letter could fix. (Sixth Circuit Order.) Judge Anne R. Traum (D. Nev.) dismissed a parallel suit against Nevada’s secretary of state the same day, the department’s 22nd district court loss in a campaign against 30 states that has produced no wins. (Nevada Order.) (Democracy Docket.)

Judge Anthony J. Trenga (E.D. Va.) on Friday entered an administrative stay barring the American Association of Motor Vehicle Administrators from producing 17 million commercial driver’s license records to the Department of Homeland Security. Twenty-one states, the District of Columbia, and Pennsylvania’s governor moved to quash the subpoena. (Order.)

Attorney General Todd Blanche on Sunday declined to pledge that the Justice Department will always act independently of the White House. “No, I’m not going to pledge that, and no attorney general should ever pledge that,” Blanche said on NBC’s Meet the Press. (Meet the Press.) (WaPo.)

President Trump on Sunday said he has “instructed Secretary of War, Pete Hegseth, to substantially reduce the Joint Military Exercises” with South Korea. Trump wrote that the drills send a signal that is “totally inappropriate and hostile” to North Korea, which he called “unthreatening and respectful.” (Truth Social.) (NYT.)

Alison Hirsh and Justin Florence of Protect Democracy argued that state attorneys general and district attorneys should investigate and prosecute the corruption the Justice Department will not. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded the same day.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 13 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom. On August 14, the Chief Justice requested a response by 12 p.m. on August 18.

The en banc U.S. Court of Appeals for the Fifth Circuit dismissed for lack of jurisdiction an appeal in a case filed by three Venezuelan nationals, on behalf of themselves and a putative class, challenging the president’s proclamation invoking the Alien Enemies Act and directing the removal from the United States of certain Venezuelan citizens who are members of Tren de Aragua. (Opinion.) (NYT.)

Judge Richard G. Stearns (D. Mass.) on Thursday dismissed the Justice Department’s lawsuit against Harvard University for allegedly violating Title VI of the 1964 Civil Rights Act by failing to respond adequately to certain antisemitic incidents on campus. (Memorandum and Order.) (NYT.)

President Trump on Wednesday issued a memorandum directing the National Coordination Center to establish a program authorizing certain private-sector companies “to conduct Cyber Surveillance Operations and Cyber Effects Operations against foreign Cyber-Enabled Transnational Criminal Organizations,” subject to the administration’s control and oversight. (Memorandum.) (NYT.)

The solicitor general on Friday asked the Supreme Court to stay the U.S. District Court for the District of Columbia’s injunction blocking construction of the White House ballroom. (Application.) (WaPo.)

Attorney General Todd Blanche gave a speech to the Justice Department in which he promised to “lead with integrity” and “uphold the law without fear or favor,” and welcomed “disagreement.” (Speech.) (Politico.)

Newly released court documents show that the Department of Homeland Security investigated an array of left-leaning organizations in Minnesota after immigration officers fatally shot Alex Pretti. The New York Times reported that none of the organizations has been charged. (NYT.)

Casey Michel argued that the 120th Congress should establish a select committee tasked with “investigating the corruption of the Trump family and focusing, at least initially, on the second-generation members of the family who have managed to profit so spectacularly from their proximity to power.” (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

National Park Service v. National Trust for Historic Preservation: The government filed an application on August 14 requesting the Supreme Court to stay a district court injunction blocking further construction of the White House ballroom.

The Intercept and Freedom of the Press Foundation filed a lawsuit in the U.S. District Court for the Southern District of New York on Wednesday challenging President Trump’s decision to charge Truth Social users a fee of up to $100,000 for early access to certain posts by the president and other government officials on the platform. (Complaint.) (NYT.)

The Justice Department’s Office of Legal Counsel issued an opinion on Wednesday concluding that “[c]ertain race- and sex-based programs administered by the National Science Foundation violate the Constitution’s equal-protection guarantee.” (Opinion.)

The Treasury Department’s Financial Crimes Enforcement Network on Tuesday issued a final rule that “permanently removes the requirement for U.S. companies and U.S. persons to report beneficial ownership information to FinCEN under the Corporate Transparency Act.” (Press Release.) (Final Rule.) (NYT.)

ICE plans to purchase “gloves that can deliver electric shocks” for Homeland Security Investigations and Enforcement Removal Operations officers and agents. (NYT.) (Notice.)

Joe Lancaster argued that the litigation over the construction of the White House ballroom could “make courts rethink” the deference they typically give the executive branch on national-security matters. (Reason.)

Roger Parloff argued that recent court filings documenting the FBI’s effort to find evidence that James Comey knew “86” meant “to kill” reinforce that the case against Comey is a “shameful and vindictive prosecution, in which high-level Justice Department officials are plowing ahead against all credible evidence to punish an enemy of the president.” (Lawfare.)

Bill Shipley argued that the lawsuits challenging Executive Order 14,399, which concerns mail-in ballots, are “more complicated tha[n] most understand.” (Shipwreckedcrew.)

Yuvraj S. Tuli argued that district court decisions enjoining the executive orders targeting law firms and Anthropic’s designation as a supply chain risk suggest a way to reconcile “an unresolved tension” between Trump v. Hawaii and Department of Commerce v. New York. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.” The government filed a supplemental brief on August 12 to “inform the Court of a recent order in a parallel case” and the states responded.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

Judge Indira Talwani (D. Mass.) on Tuesday granted a renewed motion for a preliminary injunction blocking enforcement of President Trump’s executive order seeking to curtail voting by mail. Judge Talwani stated that her order preserved the “electoral status quo” now “where less than 90 days pend before the midterms and the millions of citizens who rely on mail voting require clarity as to how or whether they will vote in November.” (Memorandum & Order.) (AP.)

Attorneys for plaintiffs who prevailed in Trump v. Barbara filed a motion on Tuesday in the U.S. District Court for the District of New Hampshire requesting the court clarify that President Trump’s Aug. 6 executive order seeking to narrow birthright citizenship violates the court’s preliminary injunction that was affirmed by the Supreme Court. (Motion.) (SCOTUSBlog.) For background on the executive order, see a prior Roundup.

Judge Joan Ericksen (D. Minn.), the chief judge of the Alien Terrorist Removal Court, on Monday canceled the respondent’s release hearing that was scheduled for the following day, citing the need for further briefing on the respondent’s motion to compel discovery. (Order.) For background on the government’s case, see a prior Roundup.

Judge Eric C. Tostrud (D. Minn.) on Monday granted in part federal government agencies’ motion to dismiss a lawsuit brought by Minnesota that sought to block the Trump administration from prohibiting transgender women from participating in sports under Title IX. (Opinion and Order.)

The Justice Department on Monday brought lawsuits against New York, Connecticut, and Vermont, challenging state laws that provide in-state tuition assistance to undocumented immigrants. (Press Release.) (CT Complaint.) (VT Complaint.)

The U.S. Department of State announced on Monday that since the start of the second Trump administration it has revoked more than 175,000 visas from foreign nationals who committed crimes or endangered public safety. (Press Release.) (NYT.)

Jonathan Shaub argued that the “precedents set in the pursuit of Fauci could come back to haunt Republicans or possibly tee up even more politically motivated retribution campaigns in the next Congress.” (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

The Justice Department’s Office of Legal Counsel released an opinion on Monday concluding that executive privilege may extend to the president’s private advisers who do not work in the executive branch. (Opinion.)

Judge Nicholas G. Garaufis (E.D.N.Y.) on Monday granted the Justice Department’s motion to dismiss an indictment against Indian billionaire businessman Gautam Adani on charges including conspiracy to violate the Foreign Corrupt Practices Act. While noting that “irregularities in the decision to dismiss the Indictment are concerning,” Judge Garaufis ultimately determined that, based on the evidence before the court, the defendant’s pledge to invest $10 billion in the United States was a “non-consideration” in the Justice Department’s decision to seek a dismissal. (Memorandum & Order.) (NYT.)

President Trump on Monday signed an executive order recommending children receive immunizations against fewer diseases than the Centers for Disease Control and Prevention currently recommends. The order also directs the Attorney General to support legal challenges to state laws that fail “to provide religious and medical exemptions from childhood and adolescent immunization requirements.” (Executive Order.) (NYT.)

The Trump administration’s expansion of U.S. Immigration and Customs Enforcement’s mandatory detention policy has triggered tens of thousands of emergency lawsuits nationwide and strained the federal judiciary, according to an analysis by Politico. (Politico.)

Steve Vladeck analyzed the legality of President Trump’s new birthright citizenship orders. (One First.)

Mae Thompson, Kristine Beckerle, and Luke Moffett argued that the Trump administration’s rollback of civilian harm mitigation and response procedures “represents a dangerous retreat” from the consensus that effective civilian harm response is crucial to effective military operations. (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

A divided panel of the U.S. Court of Appeals for the District of Columbia on Friday affirmed a lower court’s injunction blocking President Trump from constructing a ballroom in the White House without congressional approval. The court stayed its decision for 14 days to allow the government to seek Supreme Court review. (Opinion.) (NYT.) President Trump announced on Truth Social that “[w]e will be immediately appealing” the adverse ruling. (WaPo.) For background, see a previous Roundup.

Judge Emily C. Marks (M.D. Ala.) on Friday denied the Southern Poverty Law Center’s motion to dismiss for vindictive prosecution an eleven-count indictment against the nonprofit. (Memorandum Opinion and Order.) (Bloomberg.) For background, see a previous Roundup.

An ex-federal prosecutor filed a lawsuit on Friday in the U.S. District Court for the Southern District of Florida challenging his firing on grounds of the First and Fifth Amendments, the Administrative Procedure Act, the Privacy Act, and separation of powers. (Complaint.) The complaint states that the Trump Justice Department fired the plaintiff hours after a decade-old blog post surfaced in which he criticized Donald Trump. (CNN.)

The White House is pressing forward with its effort to fire Fed Governor Lisa Cook after the Supreme Court temporarily blocked President Trump from firing her. A presidential aide notified Cook in a letter dated Wednesday that the president is “considering” her removal and offered her 21 days to respond to the allegation that she committed mortgage fraud. (Letter.) (WSJ.) (SCOTUSblog.) For background, see a previous Roundup and Jack Goldsmith’s discussion with Sai Prakash on Trump v. Cook and Trump v. Slaughter.

The Senate on Saturday confirmed Todd Blanche as Attorney General in a 50 to 49 vote. (WSJ.) (NYT.) Blanche will officially take the helm of a department characterized by low morale, firings and departures, and dependence on the White House. (WaPo.) For background, see a previous Roundup.

The Pentagon announced on Friday that it had revoked the security clearance of President Joe Biden’s Air Force secretary, alleging that he revealed classified information about Air Force One’s capabilities to the media. (WaPo.)

President Trump announced on Sunday that Will Scharf will replace David Warrington as White House Counsel, effective in September. (WSJ.)

Sarah Buckley argued that President Trump has exceeded his statutory authority under the Clean Air Act to roll back air pollution rules. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

Judge Randolph D. Moss (D.D.C.) on Thursday dismissed the Justice Department’s lawsuit to compel disclosure of D.C. voters’ Social Security and driver’s license numbers. (Order.)

Judge Todd E. Edelman (D.C. Super. Ct.) on Thursday dismissed the Justice Department’s indictment against David Hearn, the former Olympian who the department alleged had damaged the Lincoln Memorial Reflecting Pool. The judge ordered further briefing on the department’s request for the case to be dismissed without prejudice. (Order.) (NYT.) For background, see previous Roundups.

The individuals and entities challenging the Anti-Weaponization Fund in the U.S. District Court for the Eastern District of Virginia filed an amended complaint Thursday. The complaint asserts that the agreement between President Trump and the Departments of Justice and Treasury to grant Trump, his family, and his businesses sweeping immunity from tax liability and audits is unlawful. (Amended Complaint.) (NYT.) For background, see a previous Roundup.

President Trump on Thursday issued a pair of new executive orders that seek to limit birthright citizenship and combat “birth tourism.” (Executive Order.) (Executive Order.) (NYT.) (WSJ.) Ilya Somin argued that one of the orders—titled “Continuing to Protect the Meaning and Value of American Citizenship”—is unconstitutional. (Volokh.)

President Trump on Thursday imposed tariffs on imports of polysilicon, an essential component of semiconductors and solar panels. (Proclamation.) (NYT.)

Sen. Lisa Murkowski announced Friday that she will oppose Todd Blanche’s confirmation to be attorney general. (Statement.) (Politico.)

Andy Wright and Tara Ganapathy argued that the D.C. Circuit’s recent decision in United States v. Navarro, which upheld Trump aide Peter Navarro’s conviction for contempt of Congress, “significantly raises the stakes surrounding both the assertion of executive privilege, and decisions regarding compliance with congressional subpoenas.” (Just Security.)

Bob Bauer argued that President Trump’s “self-enrichment requires attention not only for its head-snapping brazenness, but as a defining feature of a particular model for presidential governance: what I have characterized previously as the ‘business model.’” (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

Since Aug. 1, President Trump has been profiting from his Truth Social announcements of official actions or positions. Trump Media and Technology Group, which owns Truth Social, has announced that, for a fee of up to $100,000 a month, Wall Street traders will have milliseconds faster access to “market-moving” presidential statements issued on the platform. For firms competing to trade successfully on this information, milliseconds can make a difference of many millions of dollars. If the sales pitch for this new subscription service is successful, it will be helpful to the reportedly ailing Truth Social, but therefore also to the president, whose 41.5% stake is held in a revocable trust of which he is the sole beneficiary and his son Donald Trump Jr. the sole trustee.

Commentators and members of Congress, including Republicans, have sharply questioned this arrangement. The question of its legality is contested, and I do not take it up here. The ethical failing could not be clearer: a flat-out, egregious conflict of interest. Any Truth Social announcement of a governmental or presidential action or policy, or simply the expression of an opinion, stands to be shaped by Trump’s private financial interest in building this new roster of paid subscription clients.

How is it, then, that Trump, mired in dismal job performance ratings, chooses once again to ignore the conflicts and make flagrant use of his office to make a lot of money? He is evidently discounting the political costs, and he is well defended against any legal or ethics regulatory ramifications. By a combination of his control of the Department of Justice, the uncertain contours of his constitutional immunities, and a potential self-pardon, he can minimize any risk that the conflicts lead to a public corruption prosecution. Within the executive branch, he has disabled the ethics regulatory machinery and need not fear criticism or embarrassment from that quarter. By his own account, Trump concluded after his first term that “nobody cared” about ethics rules. To some degree the polling data bear him out, as only “a small sliver” of the public rank his profiteering as a primary concern about his presidency. And even if voters are beginning to take notice of the scale of his self-enrichment, their attention to the issue may stem more from overall dissatisfaction with the way he is doing his job than from a focused rejection of abuse of office for personal financial gain.

The challenge for the balance of this term and then again after he leaves office is building the case that conflicts of interest in the presidency matter on their own terms—in the good times and the bad, irrespective of the president’s approval ratings on other measures. It will not be easy. Process issues—like campaign finance or ethics regulation—are rarely at the top of voters’ minds.

But Trump’s self-enrichment requires attention not only for its head-snapping brazenness, but as a defining feature of a particular model for presidential governance: what I have characterized previously as the “business model.” This is one in which “deals” forged out of a range of private interests and incentives, including the president’s own, are seen as necessarily serving the public interest as well. This model does not allow for the application of standard conflict-of-interest and other ethical rules, because it does not recognize the standard line drawn between public and private interests.

The Truth Social subscription service fits within this model. Trump is working out a deal within the interests and incentives of the stock market, which he cites as the leading indicator of his successful stewardship of the economy. The new social media subscription service is a good deal for smart traders, if also for Trump; they will make money, and he will make money. It is (the theory goes) good for the market and good for Truth Social. Those traders who decline to participate are missing out on a good deal. Conflict of interest has nothing to do with it.

The demise of conflict of interest relates to the administration’s aggressive approach to the use—and, in the standard of view, abuse—of power. Conflict-of-interest is one kind of abuse of power, defined by the potential or actual subordination of the public interest to private gain. Other abuses may also serve presidential dealmaking, and not always in circumstances that involve a direct financial benefit. When Trump launched his vendetta against major national law firms, he denied that the settlements he exacted from a number of them were coercive, an abuse of power. His executive orders targeting firms that had aroused his ire were the first—and, courts have so far uniformly held, illegal—steps in a series of negotiations. These firms that settled did so because they “want to make deals,” because “they’re very sophisticated people.” Ethics has no place in this understanding of how power may be used, because, as I wrote before on the business model, “ethics imposes limits on the cutting of deals,” and for that reason, in this view, “are just dysfunctional, and therefore bad policy.”

The suspicion and often outright rejection of expertise follow from this dismissal of standard ethical considerations. In theory, policy experts guide deliberations over the public welfare. They help to find that space outside the clash of private interests where something like a common good resides. The influence of experts largely disappears in the business model picture of that common good as the best possible deal cut among various and competing private interests. On this account, this president, touted as the consummate dealmaker, is the kind of expert, a dealmaking expert, who is most needed. Among the experts neutered in this administration are those who specialize in the standard model of conflict-of-interest and government ethics regulation.

How the administration views conflict of interest is something new, a world apart from long-standing conceptions of how government fulfills its responsibilities. Personal gain is well and very intentionally served by this “business model” presidency, but it is a model that, more fundamentally, has no room for ethical constraints on the uses of power to make deals on a thoroughly privatized understanding of the public interest.

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