Mary and Andrew begin this week with the latest in the Trump administration’s attempt to send National Guard troops into American cities. From the 9th Circuit comes a 2-1 decision lifting a lower court’s temporary block on deployments into Portland, Oregon. Plus: the government has asked the Supreme Court to weigh in on the use of National Guard troops in Chicago. Mary and Andrew analyze the legal repercussions of both, then move to reporting on a Trump administration promise to betray U.S. informants in order to secure a prison deal with El Salvador. And while a week feels like a year these days, the co-hosts review both John Bolton’s indictment last Thursday and James Comey’s recent motion to dismiss his case based on vindictive and selective prosecution. Before wrapping up this week, Mary and Andrew take a beat on last week’s oral arguments before the Supreme Court in Louisiana v Calláis that dealt directly with the Voting Rights Act and whether redrawing districts can be used to remedy disenfranchising voters in Louisiana.
Further Listening/Reading:
- Here is Andrew’s conversation with former Special Counsel Jack Smith at an event at UCL in London: The State of the United States: A Conversation with Jack Smith
- Here is the reporting from The Washington Post Mary and Andrew spoke about: Rubio promised to betray U.S. informants to get Trump’s El Salvador prison deal.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hello. Welcome back to Main Justice. It is Tuesday morning, October 21st, and I am Andrew Weissmann. And I’m virtually here with Mary McCord. Hi Mary, how are you?
Mary McCord: I am hanging in there, Andrew. Is it really only Tuesday?
Andrew Weissmann: I know.
Mary McCord: Is that possible?
Andrew Weissmann: So, I have so many notes because there’s so much to discuss, you know, normally I’m the person who’s like, oh, let’s engage in chit chat. None of that. What’s on our dance card?
Mary McCord: Okay. In the one week since we talked just so many more developments in terms of court decisions and rulings and appeals related to the federalization and deployments of National Guard into Portland and into Chicago and near Broadview. And we will start with that as well as the continued back and forth between a judge in Illinois and the government over the extremely aggressive use of tear gas and less lethal munitions, et cetera, by ICE and Customs and Border Patrol. In fact, DOJ is blaming Customs and Border Patrol for most of it as opposed to ICE, which I think is an interesting little inter department conflict there.
Andrew Weissmann: We’ve never seen that before.
Mary McCord: No. That’s right. Of course, just let’s pass the blame. Maybe ICE is tired of being the ones that’s getting criticized and it’s like time for it to be CBP, but you know what, it’s all part of DHS.
Andrew Weissmann: And CBP is Customs and Border Patrol.
Mary McCord: Customs and Border Patrol. Thank you. Yes.
Andrew Weissmann: And by the way, we will briefly discuss, because one of my favorite things is there’s a scoop from the Washington Post this week about a deal that Marco Rubio supposedly had to get the El Salvador government to agree to take all these people and imprison them. We’ll talk more about that.
Mary McCord: Yes.
Andrew Weissmann: But it was fascinating and it sort of fits into their, what I’ll call our first block, which is immigration related and everything that’s wrought from that.
Mary McCord: That’s right.
Andrew Weissmann: Which is ICE going in and now needing according to the government and the president protection from National Guard.
Mary McCord: Yes, exactly. Then we will move into the continued developments in the political prosecutions. It’s hard for me to believe that the Bolton indictment has been since we did the last podcast, because at this point it seems like forever ago, but we have not had a chance to discuss it yet. It is quite a bit different than either the James Comey or Letitia James indictments. And we’ll talk about why.
Andrew Weissmann: Yes.
Mary McCord: And in terms of political motivation, James Comey filed a substantial motion to dismiss yesterday based on vindictive and selective prosecution also filed a motion to dismiss based on Lindsey Halligan’s alleged unlawful appointment. And so we will talk about those things. And then finally, as we promise, we will give at least a few reflections on the argument last Wednesday in the Voting Rights Act Section 2 case, it does not bode well, I think we were expecting it to be a tough argument and it was a tough argument and we will give a few top lines on that, but really this will ultimately come down to what the court says and what they rule when we get an opinion.
Andrew Weissmann: Yes.
Mary McCord: All right. But let’s, before we do any of that, I want to turn to you, Andrew, because we have not gotten a chance to talk about your interview with Jack Smith. It was an extensive interview. We will have a link to it in the show notes and I’m just, I want to toss it to you. I, of course am familiar. I, of course have listened. But what are the kind of things that you talked with Jack Smith about and what a time to talk to him right in the midst of what are now these political prosecutions?
Andrew Weissmann: Yes. Well, that was fortuitous in the sense that the timing turned out to be timely.
Mary McCord: Yes. It turned out to be timely.
Andrew Weissmann: This was at an academic institution, the University College of London. It was sponsored by a center here at the Global Centre for Democratic Constitutionalism, it’s a mouthful. And he came and spoke to primarily faculty and students in this academic setting. The university is now posted it online. And so part of the unusual nature of this is that there was a gap between when it happened and when it was posted. And suddenly it was a lot of news in the United States. Of course, for me, I was like, well, this happened a week ago.
As you know, having been in an academic institution, it’s like, there are people come and speak all the time. I’m just going to give a quick one point because I really think to get the substance of it, it’s a one hour listen, you can go to the show notes and I really highly recommend it. Not because of me, the reason I thought it was so important that he speak. And the reason I think it’s so important for people to hear him is for the same reason that I thought it was so important for Archibald Cox to be giving his very famous press conference during the Watergate investigation about why he was seeking the Nixon tapes.
There’s lots of substance here, but the main thing I think you will see is you will see Jack Smith himself, you will be able to make a judgment about him. He struck me as like an Eagle Scout and you’ll be able to make a judgment about him based on what you see and hear yourself and not on a caricature of him. And, you know, Mary, it made me think in a very minor way of one of the reasons that when I left government, I was thinking of doing legal analysis. And it’s just one of the reasons was I was being attacked by the president and people lied with the president and I thought, you know, what, if I’m going to be attacked, I’d like to be attacked for who I am and let people see me for who I am. And again, not to turn this away from me. I think it’s just so important for people to hear him himself and to see him and to make that judgment unfiltered through the noise. So that to me is the biggest take home. I really think you will appreciate who he is as a man.
Mary McCord: I think that’s a great point too, because you know, during his tenure, as the special counsel, the times that we did see him speak publicly were behind a podium, very scripted, very brief, right. Which was appropriate because there were pending prosecutions. And as we’ve talked many, many times before, it’s very unusual for a prosecutor to even speak publicly about a pending prosecution. You want to stay very carefully sort of within the lines of the publicly filed documents. So here you see him in a much more sort of casual environment, you know, speaking extemporaneously, it sounds much more like it’s your neighbor you’re talking to, you know, so I agree that that ability to see him that way, I think is really important.
Andrew Weissmann: Yes. And I asked him about that issue of prosecutors speaking out.
Mary McCord: Yes.
Andrew Weissmann: And whether they should speak more like Archibald Cox. I had written about that for the New York Times at the time. And so that’s a little teaser. I’m not going to tell you what he said.
Mary McCord: Yes.
Andrew Weissmann: So let’s turn now to what is happening in the courts and what is happening with respect to what I sort of think of it as an immigration bucket, but it does have these parts dealing with the militarization of the United States because the ostensible rationale is that the military is needed to protect ICE. And should we start in California with the Ninth Circuit and what happened there and then moved to Illinois?
Mary McCord: Yes, that makes sense. I do want to preface this as one thing though, because the ostensible reason, well, there have been a couple of reasons the president has given for federalizing the National Guard. He talks a lot about crime being out of control. He’s also said that about both Portland and Chicago, but when you actually see the rationale that the Department of Justice is bringing for justifying these deployments, it’s really about protecting ICE and it’s protecting ICE against protests.
And one thing, you know, here we are three days after the No Kings protests across the country. In fact, also many in other parts of the world and the estimates are up to about 7 million people participated in these protests. And I am proud to say, and I know this was very much the desire of the organizers. They were adamant about this. These were almost to a person entirely peaceful protests. I mean, there were, I heard of a couple of very minor incidents, but these were so peaceful in some cases, even joyous in the sense that we had that inflatable costumes. I mean, I was in D.C. And you had people from DNC.
Andrew Weissmann: Were you dressed as a turtle, Mary? Were you dressed as a turtle?
Mary McCord: I was dressed as Mary McCord. Not a turtle, but I did think would be kind of fun to have one of those costumes. Although I also thought it was a pretty hot day on Saturday. I’m like, ah, that’s got to be hot in that inflatable costume. So, I’m still on the kind of like, I think I’ll just go like me and more of an observer, but still there in the crowd. And anyway, I worried going into this, that there would be clashes.
Andrew Weissmann: Yes.
Mary McCord: And that this would be then an excuse for some cracking down.
Andrew Weissmann: The pretext.
Mary McCord: A pretext.
Andrew Weissmann: The pretext. Exactly.
Mary McCord: And it went off really so smoothly. And this is what the First Amendment is about, right? This is what we have a right to do. And notwithstanding what the members of Congress tried to say and the administration before this, that this was a hate America rally. This was not a hate America rally. This was, we love America. And we want to preserve the best of America and the ability to continue to make America better. That’s what this rally was.
Andrew Weissmann: And this reminds me of something we talked about last week, which is that we’re going to now turn to sort of the legal issues, but let’s not normalize what is happening here. And one side of that is saying that this rally is really the people who hate America. I mean, that reminds me so much of the Nixon scenario of sort of love it or leave it. I mean, the most charitable way you could view this is like two sides disagree about the course that should be taken. It’s not that one side hates America and the other loves America. They both may love America, but in very different ways.
And I think to me, that rhetoric was the most telling example of the administration talking about 7 million people, 7 million people. These are constituents. These are people who are supposed to be represented by the White House. And the White House spokesperson said when asked to comment on 7 million people processing said the following, who cares? Why not to say, let them eat cake?
The idea that you’re not viewing these people as constituents who need to be heard, who have a point that you may disagree with it, to me, that was so jarring in terms of how you are thinking about opposition, how you’re thinking about people who speak up and that’s just part of the process not to be vilified. But with that, just to level set on the Ninth Circuit, Judge Immergut, the district judge had issued a stay. We had talked about this, that a lot of this was a very factual determination that she said that what the president was doing was just untethered to the facts. And she also was primarily dealing with the third prong of a statute where the statute said that the president is authorized to do this calling in of National Guard. When you either have an insurrection rebellion or are unable, that’s I’m going to just focus on that word, unable to sort of handle the situation through normal law enforcement.
Mary McCord: Well, let me just jump in there because normal law enforcement is what the government says it means. The actual statute says through the regular forces. And there is a question about what regular forces are, but for present purposes. Yes.
Andrew Weissmann: Yes. So that’s the issue that went up to the Ninth Circuit and there was a two to one decision, essentially reversing Judge Immergut, staying her stay essentially. So, they’re dealing with a statute that deals with, is there an invasion, is there a rebellion or are you unable to handle the situation through normal law enforcement, high level? The idea that you would interpret unable to mean, oh, it’s kind of inconvenience. So, you might as well do it. You’re dealing with invasion and rebellion. Those are huge cataclysmic problems where Congress is saying, when you’ve got huge cataclysmic issues, we’re going to allow this federalized force to come in. And the idea that the court could say, yes, well, unable, we’re going to water that down when you’re not putting it in context of the other two things, which are huge.
Mary McCord: You sound very much like the dissent in the Ninth Circuit because basically Judge Graber in dissent said, the majority permits the president to invoke this emergency authority in a situation that is far divorced from an enumerated emergency. And she makes the points that you have just made that you’ve got to take that section three, that third potential predicate and the one that was relied on by the Ninth Circuit, the president is unable with the regular forces to execute the laws of the United States. You have to take that in the context of what the other two predicates in the statute are. Foreign invasion is utterly and applicable. That’s off the table. And then the second is a rebellion or danger of a rebellion against the authority of the government of the United States. And she says, in any rebellion, there’s going to be some inability to enforce the law.
So, the third option there, the third predicate, president unable with the regular forces to execute the laws of United States. Can’t just be, oh, it’s less convenient. Or we are being impacted by these protests. It’s got to be something that’s at least along the same measure of what rebellion is.
And she has some very important statements that I want to quote from, but I want to at least recap a little bit of what the other two judges in the Ninth Circuit based their ruling on the majority is a per curiam decision. And it says we don’t have to decide whether there’s a rebellion because, and this is very consistent with the Ninth Circuit did when it reviewed the deployments to L.A., they said, we are not going to decide the question of what’s a rebellion, but we find that there’s at least a colorable argument as an exercise of honest judgment by the president that he’s unable with the regular forces to execute the laws.
And one of the big, I think, points of disagreement be among many between the two in the majority and the dissenting judge is that two of the majority didn’t want to focus on the days and weeks leading directly up to when the president invoked this authority, they didn’t want to limit this to sort of the present. They said, we can look at everything going all the way back to June, notwithstanding that factually June, there were more instances of violence and arrests, but ever since June, it had gotten smaller and smaller. And the police had been completely able to keep things under control. And there’d been, you know, only 10, 15, 20 people there the last several days leading up to when the president invoked the authority.
And so, their view is, well, he shouldn’t make a decision based on one particular snapshot in time. He should be able to look over this longer period because there could be this, you know, this danger of things that are to come. And that’s one thing where Judge Graber says, look, the other two provisions about foreign invasion or rebellion. Those are potentially forward looking saying when there is an invasion or is a rebellion or a danger of invasion or rebellion. But the third is only about the present. When the president is unable with the regular forces to execute the laws of the United States.
The reason I’m pointing this up is because in the Seventh Circuit and now in the U.S. Supreme Court where the government has petitioned the U.S. Supreme Court to intervene and reverse the Seventh Circuit, which refused to stay the TRO in Chicago. I know that’s a lot, they’re arguing also not just that the president gets to look at what happened in the months before the invocation, but that he can be looking what’s happening in other cities too. So, if he’s making decision about Illinois and Chicago and Broadview, he can be considering what’s happened in Portland and L.A. and Dallas and a bunch of other places. And that’s just hard to square with the statute. So, I think that’s one of these areas of disagreement where we’re going to hear more.
Andrew Weissmann: Yes. And that it was very interesting because this issue of sort of what’s the scope of the facts that you can consider.
Mary McCord: Right.
Andrew Weissmann: It was definitely a disagreement between the majority and the dissent to two to one. One area that was interesting though, is that the per curiam opinion agrees that you just don’t say whatever the president says goes, that the court has a role here to review the facts, to see whether it comports with the meaning of the statute. Having said that, I think sort of de facto by saying that you owe great deference to the president. I thought there was very little daylight between the great deference and where that sort of per curiam ended up because it’s like once the president does it, they just criticize the dissent here for saying, you’re just weighing the facts for yourself. But that to me is the court had said you’re allowed to do that, but with great deference.
So, you know, I thought there was a considerable tension and we’re going to see that play out in the Supreme Court, this issue of how much of a presumption are you supposed to be giving the president. And you know, here’s always my hypothetical. It’s a hypothetical to be clear, but imagine you had the president on tape after the fact their tape emerges. And the president says, I am going to issue this, but I am making it up. Like it’s not based on the facts.
Mary McCord: Yes.
Andrew Weissmann: I want to send the man. And I’m sending him in for political reasons, et cetera. And it’s a ruse. And I agree with everything the dissent said factually. At that point, is there a good faith obligation? How much deference are you going to owe?
Mary McCord: Right.
Andrew Weissmann: And at what point can somebody say, I don’t believe you because that is what happened with Judge Immergut, which she said, these are untethered to the facts. And that is what happened in Illinois. So that sort of hypothetical is a useful one to keep in your mind for when people are saying you owe deference, it’s like, well, how much are you supposed to owe when you really see a pretext going on?
Mary McCord: That’s right. Just a couple of last points before we shift in the status of the Seventh Circuit case in the Supreme Court. But Judge Nelson did file a concurring opinion and he wants to go a different direction. He thinks that there is no review here that this is, you know, entirely a political question that courts can’t review. He also would say that this is a rebellion or danger of rebellion. And he goes back and cites Shays’s Rebellion. And the Whiskey Rebellion and Fries’ Rebellion back from the 1790s. And those were basically rebellions against the tax laws. And to try to say that that’s very similar to what’s happening here. And those are cases where the president did use what was then the militia. And in fact, in at least one of those cases is before we even had the precursors to anything like the Insurrection Act or Section 12406, that was used here.
So, there’s a lot of things that I feel like he’s trying to tee up for further review. And we know that the Ninth Circuit will be substantively hearing arguments. So far everything the Ninth Circuit has been doing has just been on sort of a stay motion, a motion to stay versus the TRO in L.A., then the TRO in Portland. But the actual arguments more on the merits of the injunction are going to be argued this week in the Ninth Circuit. And so we will then get more of a sense there about where the court sits on, on something that’s not an emergency. And I will also say the dissent here called for en banc review.
Andrew Weissmann: Yes. So, this is how Judge Graber, the Ninth Circuit ends her lengthy dissent. We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there are measure of bending sometimes breaking the truth by design of the founders. The judicial branch stands apart. Mary.
Mary McCord: We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly, to vacate the majorities order before the deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer. That’s just really sad.
Andrew Weissmann: Just to repeat, I ask those who are watching this case. That’s for everyone who is listening to this, retain your faith in our judicial system for just a little longer. So you know that you have somebody on the bench who understands what’s going on. I should say, because we’re dealing in this opinion with a congressional statute, Congress could tighten this up.
Mary McCord: That’s right.
Andrew Weissmann: Congress had the opportunity and they still can do it. So, for people listening, who think that this is an issue and that Congress should not be according such wide latitude in having these ambiguities, you are voters. You can speak, you have the right to petition your representatives about what it is that you think Congress should be allowing and what it should not be allowing, because that’s what’s going on here. This is a congressional statute that in this opinion, the government is saying it should be interpreted expansively, but Congress has the keys to the kingdom here.
Mary McCord: Yes, that’s right. I will note that that was taken as a call for an en banc hearing. And the court did request that the parties brief, whether this should go en banc within two days. So we will hear more about that. Meanwhile, the Department of Justice has sought review of the Seventh Circuit’s decision in Supreme Court. And we will talk about that when we come back after the break.
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Andrew Weissmann: Welcome back. So, Mary, we’ve been talking about what’s happening in California. Let’s turn to Illinois because there are updates there in a somewhat similar nature in terms of everything sort of heading up to the Supreme Court. What’s going on?
Mary McCord: Yes. In between the argument in the Ninth Circuit over the stay and the decision, the Seventh Circuit issued a denial in part of the stay application to stay a temporary restraining order against the federalization and deployment of the National Guard, both the Illinois National Guard and the Texas National Guard in Chicago and around Broadview, what the Seventh Circuit did is it denied the government’s motion to stay the part of the TRO that prohibited the deployment actually of National Guard members out onto the streets and the cities, but said, we won’t stay the TRO prohibiting federalization. In other words, you don’t have to send those who have already come to Illinois home. They can stay federalized. You can do whatever else training or whatever you want to do, but you can’t deploy them on the streets.
That was based on sort of, a weighing of the factors of harm and things like that. And thinking, well, if they’re just there, but they’re not deploying, then Illinois is not going to be harmed. They basically went through the district court judge’s decision there and found that there hadn’t been any clear error in terms of her factual findings. Remember she also rejected the facts that the government was submitting because they, in her view, were not consistent with the reality on the ground.
We could talk more about that opinion, but at any rate, we don’t need to get into it because immediately the solicitor general who represents the United States on Friday, went up to the Supreme Court and filed an emergency. What did he call it? An application to stay the ordered issued by the United States district court for the Northern District of Illinois and a request for an immediate administrative stay. And what I think is remarkable here is sometimes, and this is almost always what the U.S. government does when it wants to reverse something lower courts does. It goes to the Supreme Court, it says, stay this, but while you’re taking briefing on whether to stay it, give us an administrative stay, which just means stop everything right now while we brief it. And sometimes the court has done that. They’ve granted that administrative stay. That did not happen here. This went to Justice Barrett because each thing when it comes in, goes to a particular justice, Justice Barrett, rather than say, okay, I’ll give you the administrative stay right now while we get briefing on this greater stay. And remember, a stay of the TRO means they can deploy. So it’s not a preserving the status quo. It’s actually allowing it to go for it.
Andrew Weissmann: Yes. The status quo right now is they can federalize, but cannot go in. But what she did, I thought was pretty smart because it keeps it exactly where it is, but she set a really tight timeframe.
Mary McCord: That’s right. So, she asked the state of Illinois to file its brief by yesterday at five o’clock Eastern. They did so. So now that the stay is ready for the court to rule and I suspect they will do so relatively quickly, but this is a case. And I think this is so significant, right? What the Supreme Court does, and again, it won’t be on the full merits briefing, and that’s unfortunate. It will be on this stay, but what they do here, I think will tell us whether we are going to have National Guard crawling through this, particularly blue cities across the United States of America, by the end of the year. Because if they stay this TRO, that is that signal that President Trump, you can do this in other places. Now they could cabinet. They could say, we think under these extraordinary factual circumstances, you know, a limited deployment and a limited amount of time might be okay. But like that would still be very significant.
And I will note that the first argument that the U.S. government is making is that the decision to whether to call up the National Guard is committed exclusively to the president, right? So they are going all in on the points you were just making at the end of the first segment.
Andrew Weissmann: Yes.
Mary McCord: Not just deference, but exclusively his determination, in other words, Supreme Court, but the heck out, none of your business, none of the court’s business, this should be left to the government. If the Supreme Court stays on those grounds and if they do stay, we might not know because they might not give us a reason.
Andrew Weissmann: Right.
Mary McCord: But if they do stay on those grounds, that also would be dramatic. Now I’m suggesting they’re going to stay. I actually think here I have some optimism that they will not agree to stay that TRO because the stakes here are enormous. This is fundamental to the founding of this country is that we do not want military engaging in domestic law enforcement on the streets of the United States of America. That goes all the way back.
Andrew Weissmann: It also is interesting because we’re not talking about pure, constitutional power of the president.
Mary McCord: That’s right.
Andrew Weissmann: Where the court has very much been talking about unitary executive. You know, Mary and I have talked a lot about the Trump immunity decision and the majority’s view about you need a bold and decisive executive and very much into the power of the president. But here we’re talking about the authority is coming from a congressional statute.
Mary McCord: That’s because the Constitution gives the Congress, not the president, the power to call forth the militia and to provide for the organizing and the disciplining of the militia. So that’s Congress’s power. They can delegate and they delegate it through the statute.
Andrew Weissmann: Exactly. But it puts it on a different footing.
Mary McCord: Yes.
Andrew Weissmann: Because you can still believe in a strong executive and say, yes, but this is a question of how much power was Congress willing to fork over to that executive. And you can imagine the court saying, we’re going to reserve some discretion for ourselves to interpret a statute. Now they still may come out and say, great deference. One thing that we have seen, which I think is unfortunate is that we’ve seen the Supreme Court essentially do its own fact-finding and not adhere to fact-finding by the district court, the trial court.
Just so everyone understands, fact-finding because you hear witnesses and assess credibility. The law on that is that you defer to the judge who is actually hearing the evidence and can make those assessments in a way that an appellate court can’t because an appellate court isn’t seeing them live.
Mary McCord: Right.
Andrew Weissmann: They just get it called transcript. So, unless it’s really an abusive discretion and is clearly belied by the record, the general view is to defer, but that’s not what we’ve been seeing in this Supreme Court. So anyway, all of the issues that we were talking about in the first segment out of the Ninth Circuit are now up in the Supreme Court and we are waiting on tenterhooks, both its legal determination and its factual cause. I couldn’t agree to you more. It’s a huge issue.
Should we talk briefly now, Mary, about, because this is relating to immigration, there was earlier reporting over the summer from the New York Times along the same vein because there were MS-13 prosecutions that were going on in the Eastern District of New York before federal judge there, Joan Azrack, and suddenly the government was saying with respect to people who, when they were indicted, Pam Bondi was saying, for instance, this is a terrible person and they’re a leader and look how great this is that we got him. And suddenly they’re saying, we’d like to dismiss the case.
Mary McCord: Right.
Andrew Weissmann: And she was going, say what? You know, what’s going on. So, there’s a scoop from the Washington Post this week that as part of the deal to get El Salvador, to take these extracted people from the United States, I’m talking about Mr. Abrego Garcia, but many, many, many others was not just money. But apparently, the president of El Salvador was asking for the return of 13 members of a violent gang. And we haven’t heard, I don’t think a denial of that from the government.
Mary McCord: But hang on one point.
Andrew Weissmann: Yes.
Mary McCord: Some of whom are cooperators with the United States.
Andrew Weissmann: Oh, there is a lot to say. I just want to understand that we keep on hearing how this is an administration that is trying to prosecute crime and they care about crime, to your point, Mary, that’s part of the reason that they say they want to have ICE doing all of this. This is one of the reasons for like sending them the troops. And then you find out that these people who the government itself says and they’re of charged with doing horrendous things are now, oh, yes. Well, we’re going to just trade them.
And then it also belies what the government had been saying, which is that we have no control and essentially no relationship. And can’t get people back once they’re in El Salvador. Well, this is yet another reason that they have their tenterhooks into. And there was an agreement if this reporting is accurate because not only were they paying for them to be kept there, but there was an actual agreement that you’re going to do this, but we’re going to exchange these MS-13 gang members to get this done. And now, Mary, I know you want to talk a little more about who these people are.
Mary McCord: Yes. I mean, that would be extraordinary, but I guess as a former prosecutor, what’s at least equally extraordinary and just so disturbing is that among these 13 are some who have cooperated with the United States government in its investigations, frankly of the president of El Salvador and different relationships with MS-13. And so, these are people who, when you’re a prosecutor and you develop a cooperator, you make commitments to that cooperator. And one of those commitments is that you’re going to protect them because they’re going to say things that are going to cause other people to want to kill them potentially to and include the president of El Salvador.
Andrew Weissmann: That was true. I did all these mob cases.
Mary McCord: Yes.
Andrew Weissmann: That’s the reason you have the witness protection program.
Mary McCord: That’s exactly right. And so, to think that we would then sell them out by sending them back to the very place that some of their cooperation is against, where they could be subject to things I don’t want to speak about that just violates the very core of your ethics as a prosecutor. And I understand that there are foreign policy issues lurking here, but we are never going to be able to get cooperators from abroad. Think about cooperators who’ve cooperated with us when it came to ISIS prosecutions and Al-Qaeda prosecutions, foreign terrorist prosecutions. Who is going to cooperate with the United States if they think that you might then put them in harm’s way, by sending them back to a place where the very people they implicated are able to harm them. And this could cause long lasting damage.
Andrew Weissmann: Yes. Your word is your bond. And the defense lawyers advising their client used to be able to say no. If Mary McCord said it that’s what’s going to happen. She doesn’t play games. But now the defense lawyer is going to say, Mary McCord’s honest is the day is long, but it’s not going to be her choice.
Mary McCord: That’s right.
Andrew Weissmann: It can all go to hell on a hand basket if her supervisors think that it’s expedient to send you.
Mary McCord: Or not even a supervisor. If the Department of State comes in with the White House and says, we’re going to make this deal and tells the Department of Justice.
Andrew Weissmann: Yes.
Mary McCord: That’s what we’re doing. Then that’s what’s going to happen. You know? I know we’re coming almost to the end of the segment and we haven’t had a real chance to talk about Judge Ellis in Illinois. And the fact that there’s been this ongoing case brought by journalists and protestors about the use of tear gas and smoke bombs and rubber bullets and things like that and all kinds of other very aggressive strategies by ICE against protesters and against journalists who are clearly marked as journalists.
She had, a couple of weeks ago, I think it was issued a temporary restraining order against the use of all these types of things. Basically, it was a temporary restraining order that said, you need to obey the law. Don’t use these things unless there’s an actual threat of violence where it’s proportionate and would be required. Don’t make arrest without probable cause like just follow the law, which is a kind of a weird thing to issue a TRO about. But that’s what’s happening right now. That’s kind of like the TRO out in L.A. about you’ve got to have probable cause, you’ve got to have reasonable articulable suspicion to do investigatory stuff. And since then she’s had numerous back and forth with the government because the things she told them they couldn’t do anymore, they’ve been continuing to do. And she had them in again just yesterday and said, bring me somebody here who can actually testify about what is going on.
And this is where, what we said up top about it was originally supposed to be somebody from ICE. And then the government came in and said, can we send somebody from CBP? Because our understanding is that most of the problems that are being raised by the plaintiffs here are against things that Customs and Border Patrol has done. And she’s like, well basically you got to bring me witnesses who can answer my questions. And if witnesses can’t answer my questions, you’re going to have to bring another witnesses in, because her concern is that they’re not obeying her court orders. And she has modified things to take into consideration various government arguments. But this is a dangerous situation because this is a situation so many times, Andrew, when I’m advising people and local governments and police and activists and protestors about the law say, well, they can’t do this. The law requires X, Y, or Z. And that’s all true. But when you have an agency that is just violating that law, it doesn’t make people feel really good for me to say the law requires probable cause because they’re going to say, yes, Mary, but they’re not doing that.
Andrew Weissmann: And what happens when they don’t, add this to our segment. When we talked with Ryan Goodman and his research showing just how many times judges have said that you are not following the law, you’re not following our orders. And this is another instance of that. It’s a fair question for people listening this to say, well, what’s the answer if you’re in an administration that isn’t going to follow that.
So, stay tuned as to whether they’re held in contempt, what happens at this hearing? But so far, there are times when judges have tried to do that where the court of appeals has sort of helped out the government and stayed that fact-finding as to what the government’s doing. You sort of keep on wondering when will it be a bridge too far?
Having said that, should we take a break and then come back and talk about John Bolton and James Comey.
Mary McCord: Yes.
Andrew Weissmann: With our sort of top lines on how we’re thinking about those things.
Mary McCord: Yes, we absolutely should.
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Andrew Weissmann: So welcome back. Let’s quickly talk about John Bolton. Mary, not surprising that you and I actually may view this the same way. Both of us were in the intelligence community, you and the national security division. Me when I was at the FBI. And obviously from our perspective, whether it’s as a citizen or our former roles, the allegation, and again, they’re just allegations of taking classified information and sending it on a Gmail account to two people, even though as the reporting is that it’s to his wife and his daughter, but still to two people who are not authorized to get it raises two issues. It’s like, you should not be putting classified information on Gmail and you should not be sending it to people who aren’t authorized to get it.
Let’s leave aside that it’s being done to publish a book so that there’s no actual good reason for this, because while you’re sitting there as the national security advisor, you’re just thinking about your book and you want to send it to them over these insecure methodology. And of course, the risk that that entails came to fruition because the allegation is that a foreign country in fact hacked into it. So, there are many, many people and actually Ryan Goodman, and I did a deep dive into just the illegal retention cases, not even the illegal retention and dissemination cases.
Mary McCord: Right.
Andrew Weissmann: And there are many, many people who have been charged with that and people who have gone to jail. So the fact that it’s the national security advisor is not a mitigating fact. It is in my view is an exacerbating fact. And so there’s no way that I sort of think based on the allegations. And again, it remains to be seen whether there are other facts that would cause us to rethink all of this, but the allegations on their face are very, very different that we saw from James Comey and Letitia James. And that may be one of the reasons that the whole way in which the indictment came about is not like those other two. The senior U.S. attorney appointed by Donald Trump didn’t have to resign by saying I can’t bring them. Career people from the field office in Maryland, the Maryland U.S. attorney’s office and your former office.
Mary McCord: Yes.
Andrew Weissmann: The national security division are all on the indictment. So I think all of that suggests that there’s much more there, there, at least at this stage when we’re looking through a glass darkly, but Mary, I’m going to turn it over to you because I think both of us still think that this in many ways is almost exhibit a, to two systems of justice and the targeting of somebody. And so, the way I phrased it, it’s not like he shouldn’t have been charged, it’s that other people should have been charged. You can’t single people out like this.
Mary McCord: Yes. And just so people know there are 18 counts here and they read a little bit like the counts in the Mar-a-Lago indictment. In other words, account for every single document, the first eight are from when he was actually the national security advisor. And what he was doing is he was taking notes at the intel briefings that he was getting or when he was traveling and he was getting classified information and he was taking notes and then sending these notes over his personal email or non-government applications, which is why they were vulnerable to hacking and were in fact hacked, at least as he alleges.
Andrew Weissmann: And Mary you’re saying that’s what’s alleged that he did.
Mary McCord: That’s right. And as alleged, I mean, we’re talking about things just to get people to get a sense, because we talked about this when we talked about the Mar-a-Lago indictment, we talked about sort of what some of these documents.
Andrew Weissmann: Yes.
Mary McCord: The kind of information they included, things about a foreign adversary planning, a missile launch, things about covert action in a foreign country. Things revealing sensitive sources and methods, including human intelligence, right? These are extremely sensitive things.
Andrew Weissmann: It was marked top secret, not all of it, but there was top secret information according to the government.
Mary McCord: That’s right. And some people are saying, well, were any of these, the classified documents themselves? I think people should understand. It’s not just the transmitting or improper storage of the original document that’s marked classified. And it has a cover sheet on it. That’s read if it’s secret and it’s orange if it’s top secret, it’s the information itself. So even if you transmit information over the phone or in the same room with somebody who’s not entitled to have it who doesn’t have a security clearance and doesn’t have a need to know, it’s still unlawful because it’s the information that’s protected, not just the document.
And so again, these allegations are not that they are original documents, but information that’s classified within those documents was being passed over that way. And then the other 10 are based on then the search warrant that then found the electronic evidence of those transmissions. And in some cases, printed out hard copies of those transmissions for those eight plus two more.
So, to the extent that there’s questions about the reliability of whether things were actually transmitted over email back in 2018, 2019, that’s where I think these other accounts come into play at least as alleged because that would show in evidence that was seized from his home or office the electronic version of that.
Andrew Weissmann: And people will remember that those searches of his home and office just recently occurred. So that’s something that’s happened this past year or so. There’s sort of two blocks of time.
Mary McCord: That’s right.
Andrew Weissmann: There’s sort of what happened when he was working for Donald Trump in the first administration, but remarkably it’s still there when they do this search, according to the government.
Mary McCord: Which certainly surprised me. And one of the things that they include in this indictment is so many statements that John Bolton has made publicly really chastising others for mishandling classified information, which brings me full circle to your question because there was a prosecution of Donald Trump for mishandling classified information that was dismissed by Judge Cannon. But there were those charges brought. And just to juxtapose what they’re going after John Bolton for versus what the president, when he was not the president argued in the case against him, it’s notable the similarities in the cases. One is dismissed and gone, not because of presidential immunity, but because in Judge Cannon’s view, Jack Smith was not properly appointed. And so, there’s no accountability for that mishandling by Donald Trump yet this is being brought.
Andrew Weissmann: And then the other similarity that people have pointed out and struck me is Signalgate. And there is another example where we know so many people who get prosecuted for something like this who are not friends and family, or actually the president who says, oh, he shouldn’t have been charged. But Pete Hegseth has not been under criminal investigation for Signalgate where people recall the discussions on non-secure mediums. Signal is not a government authorized means of a communicating classified information. And they were talking about war plans and attack plans, which although they have said it was not classified, I don’t know how that could possibly be the case. And there also were allegations that Pete Hegseth was having these same kinds of communications with his family. And so that to me was also sort of like, oh, where have I heard that?
So, it’s not that John Bolton, at least based on what we know should not be charged. It’s like, how can you charge him, but not investigate Pete Hegseth. And what are you going to do with all of the claims by Donald Trump, that when he was being prosecuted for it, it was just a witch hunt and you shouldn’t believe it. I just find that the John Bolton case while there might be a, there, there is also more than I think the other two cases really in exhibit a, for my friends and family, I give everything into my enemies. They get nothing.
So that’s maybe a good segue to the James Comey motions. The first motion is he has made a motion based on vindictive and selective prosecution. And he has a litany of quotes from the president attacking and showing the sort of actual malice of the president towards James Comey. They also say that this was all done and he was charged because of James Comey’s attacking the president and criticizing the president. So that’s based on First Amendment activity.
And so there’s some differences between selective and vindictive prosecution, which we don’t have to get into now will play it out as it goes forward. But it seems like a very interesting argument. And I think where it could easily go with this judge is the same way it went with respect to Mr. Abrego Garcia. People remember that in connection with his criminal case, he won the sort of first round of that case because he was given discovery on his claim. And here that is one of the things that James Comey asked for. He says, I should win outright, but if I don’t win outright, I want discovery. And that discovery is the thing that could be particularly damaging because remember in his case, there are clearly going to be communications between the White House and the U.S. attorney’s office about needing to indict. And you’re going to have career people. And even the former U.S. attorney appointed by Donald Trump saying, we don’t think it should go forward.
Mary McCord: And you know, it’s interesting because we’ve talked about vindictive prosecution being a prosecution in retaliation for the exercise of a constitutional right. And sometimes that is within a case itself. So, somebody is indicted and charged and then they take an appeal after they’re convicted and they win on that appeal. And then they get charged with something else, right? Like that’s the classic. You had a right to take an appeal. That’s your constitutional right? When you won that, we got mad at you government. And so we charge you with something else.
And that’s where here, I think the argument is, this is not retaliation for that kind of a thing. It’s retaliation for his exercise of First Amendment rights, another constitutional right. But more broadly, and I have thought that this is what should be argued, even if it wasn’t directly based on things that James Comey said, even if it’s because the president is still mad at him for the Russia investigation, which of course is not the exercise of a constitutional right, engaging in an investigation when you are the FBI director, a predicated investigation. I think that there is a broader due process, right, not to be prosecuted based on just malicious animus toward a defendant.
And that’s what Pat Fitzgerald, James Comey’s attorney and other attorneys have put in this motion that beyond the standard sort of vindictive prosecution, the due process clause forbids this kind of prosecution based on animus. And I think that’s right. And I think that’s smart. And we’ll have a lot more to say about that as this gets fully briefed.
Andrew Weissmann: The second thing that James Comey argues is something that is winning actually in district courts and maybe winning in the courts of appeals. The third circuit just heard this issue is whether the new interim U.S. Attorney, Lindsey Halligan was correctly appointed. And this is this issue that came up with Alina Habba, who has been found to have been improperly appointed because the president gets to nominate somebody. But if they don’t get confirmed within 120 days, it then goes to the judges and you don’t get to sort of wait for 119 days and then start the clock again. And so, avoid ever having to have the —
Mary McCord: That’s right.
Andrew Weissmann: — Senate weigh in. And so, the courts are wise to that and going, you don’t get to do that. So here, Mr. Siebert had served his time 120 days lapsed. And so, it really was up to the court to appoint the interim, not Lindsey Halligan. And here is where this is somewhat different than other cases, because the only attorney who signed the indictment was Lindsey Halligan. According to the Comey motion, the practice in the Eastern District of Virginia is that the line attorney signs the indictment as well. That didn’t happen here. Also, according to the new motion, it says that the only person in the grand jury instructing the grand jurors was Lindsey Halligan. No career person was there. Again, this is just what the motion says.
So those are very unusual facts, but it’s useful because that way it allows James Comey to say that once he was able to win on the argument that Lindsey Halligan was improperly appointed, the government can’t turn around and say no harm, no foul, because other people would’ve signed off on it. Other people were doing this. In fact, nobody in that district had signed off on this, even went to the grand jury. And so, it’s now too late. If the court were to say, we’re striking this because Lindsey Halligan was improperly appointed, the statute of limitations has run. And so, it’s a technical argument. That’ll be fascinating to see what happens. This is the kind of argument, by the way, if James Comey here to win it at the district court level, it would definitely go up to the circuit if not higher.
Mary McCord: Yes. I think that’s right. So much, much more to come.
Andrew Weissmann: Mary, how is it that we’re in a world where we’re squeezing in the oral argument?
Mary McCord: I know.
Andrew Weissmann: And what could be one of the most important cases.
Mary McCord: I know.
Andrew Weissmann: And people who do voting rights are probably going to be listening to this going, I’m sorry, what you’re doing this in two minutes, but again, we promised you, so we’re going to just give you a top line. Mary, what are your thoughts?
Mary McCord: You’re so right. We could have a whole episode on this, but when the opinions comes, you know we’ll be able to give it more time. It was a two-and-a-half-hour argument on Voting Rights Act, Section 2, as we talked about last week, this is an important part of the civil rights laws that assured that people who had been basically gerrymandered out of ever having an opportunity to have their voices be heard. And particularly who we’re talking about Black people, that there is an opportunity through Section 2 to sort of remedy those past wrongs by redrawing maps that allow an opportunity for in this case, Black people to elect a representative of their choice. So, they’re not just fractured into disparate districts where they don’t really have a chance as a block to show their voice.
And I would say in some ways, kind of like this 2013 decision in Shelby County, which really eviscerated Section 5 of the Voting Rights Act on somewhat of the grounds that kind of like we don’t have a problem anymore, right? The problem we’re trying to solve for the racism in districting is kind of over, which of course is very much not the case, but we got a sense of that during this argument too, with Justice Kavanaugh saying this court’s case is in a variety of contexts have said that race based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but they should not be indefinite and should have an end point.
So that whole issue of when has the idea of having a remedy for past racism over and should it be over now, that’s one significant piece of it. Another is, are the factors in section two? I mean, this was what the argument was supposed to be about. Isn’t this really a violation of the equal protection clause and also the 15th Amendment about depriving any persons of the right to vote?
And Janai Nelson, who was arguing on behalf of the Black voters, explained that the court just answered this question a couple of years ago in an Alabama case. And that’s what should govern here. But there were several judges sort of questioning whether Alabama versus Milligan was still good law. And the chief justice himself said, yes, I understand what we did there, but there we were accepting the law as it existed and implying it to the facts in Alabama, essentially here, we’re looking at new, is there a problem with section two and a problem about its constitutionality?
And so, there are a lot of different ways this could shake out that are from very, very bad total evisceration of section two to something less dramatic, but suffice to say without that section, oh, let’s put it this way. No Black person, as I understand what Ms. Nelson argued had been elected to statewide or congressional office in Louisiana until section two. And there’s a number of throughout the South in particular, a number of states where there’s a similar case where that representation just didn’t exist without section two. So, so there’s so much to say, and I’m not giving it it’s due at all. And we will definitely come back to it.
Andrew Weissmann: One of the issues about when is it over, when do we get to say that the time is up, strikes me as really rich at this moment in history. When you have a president member, he is the originator of the birther lie about President Obama. You have the statements about Charlottesville and many of his statements about Black and brown people are either directly or implicitly racist. And to have an argument in the Supreme Court where the discussion is, gee, when is it over one answer to that is when racism is over, then maybe can have that discussion. But it is remarkable at a time when you are seeing what many people say is no longer a dog whistle, but just outright racist comments from all sorts of people.
Again, I’m not directing this now, just the current administration. I mean, but all sorts of people with truly hateful speech to have that discussion going on brings a surreal quality that again, to borrow from Judge Immergut is untethered to the reality of what’s happening on the ground.
Mary McCord: Well, I wish we had a more uplifting way to come out of today, but.
Andrew Weissmann: Well, you know, we knew that this was going to be like from bad to worse, but you know what? Stay tuned for those James Comey emotions. Those seem to be strong. And so, there’ll be much more on that.
Thank you everyone for staying engaged and listening. Remember in the show notes, you can listen to Jack Smith. If you want to have some uplifting time, if you don’t get that from Mary and me, you’ll get that from Jack Smith.
Remember that you can subscribe to MSNBC Premium on Apple podcasts and you can get this show and other MSNBC originals ad free. And you’ll also get subscriber only bonus content.
Mary McCord: Also, now on apple podcasts and YouTube the second season of our colleague, Jen Psaki’s podcast, The Blueprint is back with all new episodes every Wednesday. This season features interviews with people reshaping the Democratic Party like Kentucky Governor Andy Beshear and Texas Congressman Greg Casar.
Andrew Weissmann: This podcast is produced by Vicki Vergolina. Our associate producer is Ranna Shahbazi, and our intern is Colette Holcomb. Bob Mallory is our audio engineer. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNBC Audio.
Mary McCord: Search for Main Justice, wherever you get your podcast and follow the series.
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