Actually, I Would Like to File The Opposite Thing, Please

7 snips

Mar 6, 2026

They unpack the DOJ’s sudden U-turn on appealing losses to law firms and why that matters for legal strategy and credibility. They flag a DOJ letter pressuring state bar investigations and what that could mean for attorney oversight. They touch on a stalled autopen prosecution theory and a major administrative law fight over New York congestion pricing.

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INSIGHT

DOJ U-Turn Damages Appeal Credibility

The DOJ's flip-flop on appealing four firms' losses undermines its credibility and harms the appeal's perceived strength.
Ken notes the DOJ first moved to voluntarily dismiss, then rescinded that the next day, suggesting internal disagreement and embarrassing timing before briefing deadlines.

INSIGHT

Settlements With Other Firms Still Stand

Letting the four victorious firms stand wouldn't automatically void settlements with nine firms that settled; formal leverage remains intact.
Josh explains settlements remain enforceable, so those nine firms still face contractual obligations despite other firms' wins.

INSIGHT

Autopen Probe Was Largely Political Theater

The 'autopen' probe into Biden-era signatures appears to have been political theater rather than a robust criminal case.
Ken and Josh say DOJ lacked a clear criminal statute to charge and quietly let the matter die despite House reports calling it a blockbuster.

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This week Ken and Josh discuss how The Trump Administration surprised observers by withdrawing its efforts to appeal its losses against all four law firms that challenged its legal orders against them. Then, it surprised observers again by changing its mind and asking to appeal the cases after all. We discuss why, whether you’re allowed to do that, and what happens to the nine firms that didn’t fight when the other firms win.

We also look at a strange letter from the Department of Justice to state bar associations, telling them they’ll have to pause investigations into DOJ lawyers, or else. It’s unclear what authority DOJ thinks it has here, but they may be upset about a Florida Bar investigation into Lindsey Halligan. And we talk about news that DOJ tried to come up with a way to do a criminal prosecution related to President Biden’s autopen, but didn’t.

That’s for all listeners. Paying subscribers get a whole lot more this week:

* You’d think, now that the IEEPA tariffs have been thrown out, customs would stop charging them to importers. You’d be wrong! The customs bureau keeps finalizing tariff payments including the now-barred IEEPA charges — in a filing issued after we taped, they argued their computers won’t let them stop — but Judge Richard Eaton from the U.S. Court of International Trade has told them to cut the crap and refund taxpayers’ money. Ken and I discuss how this episode might affect the next round of tariff litigation over the new legal authorities the administration is leaning on to replace IEEPA.

* There’s Administrative Procedure Act news! Judge Lewis Liman says the Trump Department of Transportation can’t end New York’s congestion pricing program, in an order that Ken calls “149 pages of pain.” One of the issues? As often happens with APA cases, the DOT said New York couldn’t challenge its move because they hadn’t actually imposed a “final” agency action. Unfortunately for DOT, President Trump last February tweeted a picture of himself wearing a crown and declaring “CONGESTION PRICING IS DEAD,” which sounded pretty final to Liman.

* We have an update on West Virginia judges resisting the Trump administration on ICE.

* We look at why Tom Goldstein couldn’t save his own ass in court, discuss the superseding indictment with a whopping 39 defendants in the St. Paul ICE Church protest case, and we discuss the prosecution in Alabama of a woman who dressed up as a giant penis for a No Kings protest. Local prosecutors argue, among other claims, that she sought to mislead officers as to her identity by saying her name was “Antifa,” and that her huge penis costume was so distracting that it constituted a criminal traffic hazard.

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