The Lawfare Podcast Lawfare Daily: The Trials of the Trump Administration, Oct. 31
Nov 3, 2025
Marty Lederman, a Lawfare contributor and former DOJ official with expertise in constitutional law, joins the discussion. Lederman dives into the Supreme Court's handling of National Guard federalization and the implications of 10 U.S.C. §12406 on military deployments. The team debates James Comey’s motions to dismiss his indictment, alongside ongoing politicization within the DOJ. They also analyze the legality of SNAP benefit suspensions during government shutdowns and discuss the constitutional dynamics at play in these high-stakes litigations.
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En Banc Rehearing Kept Deployment Stay
- Ninth Circuit vacated a panel opinion by agreeing to rehear Oregon v. Trump en banc, but left the panel's stay of deployment in place.
- The result allowed federalization and mobilization but prevented deployment, preserving a split status quo.
Factual Error Raised Over FPS Numbers
- Plaintiffs flagged a factual error about FPS personnel numbers; initial reports cited 25% diversion but corrected numbers show much lower peak percentages.
- The discrepancy (25% vs. as low as 4–6%) could materially affect courts' reliance on the government's claims.
Judge Insists Focus On Pre-Federalization Facts
- During the Oregon trial, plaintiffs focused heavily on post-federalization events like an October 18 ammunition incident.
- Judge Immergut pushed plaintiffs back, insisting her focus was the original decision to federalize under 12406.