The bulldozing of the East Wing of the White House late last week was shocking to much of the nation, Mary and Andrew included. They begin there with concerns, not only about preserving its rich history, but the ethical and legal questions that arise from the president using private donations to fund this ballroom build, and how the Anti-Deficiency Act might apply. Next, an update on National Guard deployments in the California case and the 9th Circuit’s issue of a temporary stay in Portland as they consider an en banc review. And last up, the boat strikes keep coming in the Caribbean — and now in the Pacific, as the president continues to escalate tensions. Mary and Andrew address the thorny legal issues at play when the U.S. military kills suspected traffickers in international waters.
A note to listeners: Since this episode was recorded, Defense Secretary Pete Hegseth announced another set of boat strikes in the Pacific ocean that killed 14 people.
Further reading: Here is the Letter from several Democratic Senators raising concerns about donations to the ballroom that Mary and Andrew spoke about.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Welcome back to Main Justice. We are recording this on Monday afternoon, October 27th, instead of a Tuesday. I am Andrew Weissmann. And I’m saying good morning to all of you, but also to my wonderful co-host, Mary McCord, happy Monday.
Mary McCord: Happy Monday, saying that as dripping with like sarcasm, I think.
Andrew Weissmann: I think it’s because we all know what we’re going to talk about.
Mary McCord: Exactly.
Andrew Weissmann: Are we done with the pleasantries here?
Mary McCord: We’re done with pleasantries. Yes.
Andrew Weissmann: Well, I’m going to ask you what’s in our dance card, but I have a pretty good idea that we are going to talk about the destruction of the East Wing.
Mary McCord: Yes.
Andrew Weissmann: Because this is so unbelievable that someone acts out the metaphor.
Mary McCord: Yes.
Andrew Weissmann: I mean, literally bulldozing.
Mary McCord: Yes. Big diggers. I mean, seeing the photos of the destruction of the East Wing of the White House, the morning it started, and it was clear that this wasn’t just like a minimal amount of demolition that wouldn’t come close to touching the White House. This was the entire East Wing. And, you know, originally Donald Trump had said this ballroom was going to be completely separate from the existing building. And that was not the case at all, but sting those photographs, it’s kind of like, you know, unfortunately in my neighborhood, there are a lot of really old homes and some of them are being torn down in order to build these McMansions, which I’m not a fan of, no offense to anybody in a McMansion, but I hate watching the destruction because you think of multiple families who’ve had memories in that house and you see this big machinery come in and start just grabbing pieces off and chunks off.
And to see that happening to the East Wing of the White House, you know, it took like three days and the whole darn thing is gone. But as it was coming down, you’re seeing these jagged edges of rooftops and walls, and then the complete destruction of Jackie Kennedy’s Garden and the Colonnade, right? How many photographs of presidents and first ladies and dignitaries, and it’s kind of how you get into the White House. I mean, every time I’ve done a White House tour, that’s how you’ve come in. So, I don’t know, I looked at that and I said to my husband, this is just this type of ragged fast destruction without notice is also the way I feel about what’s happening sort of, to our democracy and to the rule of law right now.
Andrew Weissmann: Yes. Leaving it in rubble and then the lack of respect for history. I went back, I was prompted by lots of news reports, but I went back and listened to online the Jackie Kennedy discussion where she walks you through the East Wing and its history. And one of the things she said was that there were times where it was going to cost a lot to fix certain things, but no one thought that you should destroy it because it is a monument to the United States people and its history. And that’s worth preserving for good and bad in terms of its history. And I’m not against progress. I understand that there needs to be new building, but this was completely gratuitous. And we’ll get into some legal issues that come up.
Mary McCord: Yes.
Andrew Weissmann: But this is once again, I think a very good example of, there’s legal issues, but the big picture is not the legal issue. The big picture is what it represents in terms of what is going on. And I have to say, I reacted to it emotionally. And I also reacted to it on a sort of, this is going to sound kind of callous, but sort of like who the hell do you think you are?
Mary McCord: He’s a temporary occupant.
Andrew Weissmann: Right.
Mary McCord: He’s a tenant.
Andrew Weissmann: Exactly. So, you know, a lot of people have this view and I know you had this view and I had this view at the Department of Justice, which was during our time there, we were custodians of that role and what we were doing at the department and the idea was to hand it to the next person, hopefully in a better position and stronger than when you got there and you understood that it wasn’t yours and he is there as a renter.
Mary McCord: Yes.
Andrew Weissmann: You know?
Mary McCord: Who doesn’t pay rent?
Andrew Weissmann: Right. Exactly. So, by the way, that’s going to be our part of our first topic.
Mary McCord: Exactly. That’s right. Then we will update, believe it or not. There have been a lot of additional developments in this standoff really between states and cities and the president when it comes to the federalization of the National Guard and deploying them into various cities. We’ll just get an update on that. And that’s related to something else that has, I think caused a lot of tension between the same two states, Illinois and California, and the federal government. And that is with respect to whether, if there are things that ICE agents might do that violate state law, because they’re going sort of beyond what they’re authorized to do, perhaps engaging in excessive force, which would be an assault under state law, whether states can actually, you know, charge that kind of thing. And with the federal government saying supremacy clause, basically federal agents are untouchable if they’re out there doing their job. I think the real key question is there, what is their job? Right. And what goes well beyond that?
Andrew Weissmann: Right.
Mary McCord: And because that’s another really brewing area of tension that has a lot of legal significance. We’ll talk a little bit about that. We’ll update a little bit also on the still continuing escalation of strikes in international waters. Now we have seen strikes in the Pacific, not just in the Caribbean area. And I think maybe in some ways more important for purposes of our discussion is last week, the repatriation of two survivors to their home countries, Columbia and Ecuador. And what does that mean? And why did that happen? Because if they were in fact running drugs and committing crimes that violate us law, one would’ve thought they would’ve been taken into custody and brought to the U.S. for prosecution. And that’s not what happens.
We’ll talk a little bit about that. And if we have time and we may not, but we do want to at least flag that the department has at the request of, I believe it was the GOP in both areas of New Jersey and California is going to be sending election monitors out to some locations.
Andrew Weissmann: Yes.
Mary McCord: There is a hotly contested governor’s race in New Jersey and in California there’s no governor’s race, but there is the issue of redistricting, right, in order to counter what Texas did with redistricting to create additional speculative Republican seats is something that California legislature worked to counter by putting an initiative on the ballot. And it’s interesting, Andrew, because none of these issues in either state are like, there’s no federal election there, right. That the federal government would have a federal interest in. So it’s an interesting use of the Department of Justice resources to monitor these elections.
Andrew Weissmann: And I think it’s something that we are going to spend more and more time on, which is issues that are going to risk rearing their head in advance of the midterms.
Mary McCord: That’s right.
Andrew Weissmann: And getting you all up to speed on not just what to expect, but what are the legal issues in terms of what to expect and things that Mary and I, and many, many other people have thought about. And so this was sort of like a beginning foray to sort of deal with that.
Mary, should we start with, you know, we spent a fair amount of time in the intro talking about the East Wing and tearing it down, but let’s put our lawyer hat right on what are the legal issues? You know, you and I both read a really wonderful letter that democratic senators sent, asking for information about what had happened and raising various issues. But what are the legal issues here that could be things that the, what has run afoul of? And I say could, because there really are a lot of facts we don’t know because this just sort of happened. And there isn’t like a lot of things that this administration does. There’s not a lot of transparency.
Mary McCord: Yes. I mean, given what we said in the intro, I think it’s also important to say, we understand that various presidents do modernizations and there is a process for that. Right. And it could well have been that if the process of putting this through the national capital review process and having various people weigh in on how to best make sure a ballroom could be built and that any artifacts preserved. Imagine there could be medallions on the wall. Like it’s not always just about a statue, right? There could been things, pieces of this that we want to preserve. You know, there’s a process for that. So, it’s not as like, as though no one can ever change the White House, but what is, was somewhat shocking here is lack of process. And there are legal issues related to that. But to my mind, those are not the most significant legal issues.
The most significant legal issues to my mind are the fact that this is being paid for according to the president, by a number of donors. And these are major corporations. And this is where the letter you reference from Senator Warren and Senator Wyden, I think is so interesting because it raises the real issue of pay to play. And I think that is a very significant issue here. And I’ll just hear the examples that the senators give.
Andrew Weissmann: In addition to Senators Wyden and Warren it’s also Senator Holland, Senator Marky, Senator Blumenthal.
Mary McCord: That’s right.
Andrew Weissmann: But no Republican senators. And to be fair, they raise a lot of questions. They basically are saying, we need to know more. And I just want to foot stomp on something you said, which is, there is a way for private donors to give donations for certain limited things and under certain strictures and guidance. What is not allowed is it can’t be, oh, I’m going to give a hundred thousand dollars to your favorite charity. And then you are going to do something for me.
And one of the things that this letter points out and we’ll attach it to our show notes, because it’s written for the public to be able to understand it and read it is that these donors all sort of came to the White House. There were reports that they actually were solicited and they, many of them in various ways have business before the administration now or could be, I think they may have it in the future. And they also go through the history, which I think our listeners know very well, which is that you have other examples of pay to play sort of in action or what I view as sort of extortion conduct, where both lawyers we’ve heard about the law firms who have capitulated and given hundreds of thousands of dollars’ worth of pro bono work or (inaudible) to do that.
Mary McCord: Millions.
Andrew Weissmann: You have companies that have agreed to give money to this ballroom in settlement of a lawsuit and a lawsuit that many people think was meritless.
Mary McCord: Right.
Andrew Weissmann: And yet they quote, “settled it” and it looks like a vehicle to make a payoff.
Mary McCord: That’s right. Can I just read a couple of them?
Andrew Weissmann: Absolutely.
Mary McCord: So, this is straight from the letter from the senators saying indeed, many of the attendees at President Trump’s fundraiser, this was this glitzy dinner that had lots of executives from places like Amazon and Google and Meta and elsewhere. And there’s a whole list of the companies that have now donated money to this ballroom. I should also mention that Comcast, the NBCUniversal and Versant parent company is also among the donors.
What the letter says is many of these attendees lead companies that have active business interests before the Trump administration. For example, Google is in the midst of an antitrust litigation brought by the Department of Justice and could benefit if DOJ decides not to appeal a recent court ruling widely seen as favorable to Google. Union Pacific Railroad is currently pursuing an $85 billion merger that will require federal approval. Caterpillar, Inc. is actively contesting penalties imposed by the Occupational Health and Safety Administration and has substantial federal interest related to trade, tax, and right to repair policies.
The list goes on and these corporations, they have already observed as the senators point out, their peers receiving favorable federal action following donations to President Trump, such as Paramount receiving FCC approval for its massive deal with Skydance soon after giving millions of dollars to President Trump’s presidential library. So this is what makes me worried.
Andrew Weissmann: Yes. So here’s the thing. We were both public servants. Could you imagine somebody who’s coming to you wanting something saying, you know, you’ve done something that I want you to change or whatever it is, and you say, you know, I have a charity that I think would be great for you to pay money to. You do not get to ethically use public office to solicit private funds.
Mary McCord: That’s right.
Andrew Weissmann: And just imagine the harm of that. And in many ways, what I was thinking about this, it’s another way to get around Congress because Congress is not appropriating funds for this. And I know some people would think, oh, but that’s great. We’re not using taxpayer dollars, but instead you could be using extortionate dollars. And just imagine everyone could be extorted, there’s no rhyme or reason then even if it’s not explicit, it’s like, this is the concern is that’s not what public officials do. And if money is going to be spent, it gets decided constitutionally by the branch of government that has that.
Now, just to be clear, there is a way to have like a committee and commissions set up to make sure that there isn’t that quid pro quo, there isn’t that connection.
Mary McCord: That’s right.
Andrew Weissmann: And that the donations are something that a company just wants to do on its own or an individual wants to do because someone is thinking of building a skating ring in an area where the population needs it, or I’m just making, you know, the project.
Mary McCord: Right.
Andrew Weissmann: And so there is a way to do it, but you could imagine this is the kind of thing where the business of doing and what ethics officers are in the business of doing is making sure that not only is there no quid pro quo, but there’s no appearance of it.
Mary McCord: Exactly. Quid pro quo is the right word here, because picture the things we’ve talked about before about the providing of a gift in exchange for an official act.
Andrew Weissmann: Which by the way is bribery.
Mary McCord: Exactly.
Andrew Weissmann: Just to be clear.
Mary McCord: That’s right.
Andrew Weissmann: Just to be clear since we are both were criminal lawyers and prosecutors.
Mary McCord: That’s right.
Andrew Weissmann: That is bribery.
Mary McCord: Yes.
Andrew Weissmann: It is hard to prove because you usually don’t have that direct evidence of the quid pro quo.
Mary McCord: That’s right. And I’m not suggesting that direct evidence is here, but it sure doesn’t pass the smell, test. It just doesn’t.
Andrew Weissmann: Yes. Everyone can go back and read those notes, but there were other examples of things that raised similar issues.
Mary McCord: Yes.
Andrew Weissmann: There was reporting of an individual who may have been completely doing this out of the goodness of his heart, but was going to give tens of millions of dollars.
Mary McCord: A $130 million.
Andrew Weissmann: Yes. To pay for military who were not getting paid during the government shutdown. Again, this is one where I am not in any way faulting the bona fides and the idea that somebody would want to do something to help people who are working for us and we owe our lives to in many ways. But the issue is the example that sets in terms of how the government operates, where if you just make it a free for all to give money, you really do end up sort of worrying about, do you turn into Russia where you have oligarchs and payoffs as what you need as the cost of doing business, that is the pay to play.
Mary McCord: That’s right. And here we can actually point to statutes too. And we can also point to them, even with the ballroom example, to a certain extent, we’ve got the Antideficiency Act. The Antideficiency Act is always.
Andrew Weissmann: I always love that name by way.
Mary McCord: I know. It basically means government, you can’t become deficient in terms of how you’re paying for things. That’s really what it’s about.
Andrew Weissmann: And make up if there’s a gap because you’re deficient. In other words, you know, you have $10, but you need 15. You can’t go to Google and say —
Mary McCord: Give me that five more that I need.
Andrew Weissmann: We’d really like the five.
Mary McCord: Yes. It means that Congress is the one. This goes back to your point, Congress appropriates funds. And if those funds are not available, the government can’t just go get them from other places. And it also very much limits voluntary services, right? So that’s why people are not supposed to be able to donate their time to the government. And that’s one of the reasons why those employees who have to work during this shutdown without being paid. That’s one of the reasons they have to be paid, right? Because they aren’t allowed to volunteer their services. So ultimately, they will get paid.
But even in this issue of the $130 million gift to the military, supposedly to help them, you know, with the salaries, this is something that Congress would have to approve. There is, you know, authority that Congress has given the Department of Defense and other government agencies to accept gifts in certain situations, but you can’t spend any of those funds without congressional appropriation and congressional approval of that. Otherwise, it would be a violation of the Antideficiency Act. And you know, this also raises the question of, I think people may have heard when the government said, well, we’ve also moved some money around to make sure that the military could be paid, you know, on time, not after the end of the shutdown. And one of my colleagues at Georgetown Law, David Super, this is an area that he’s very, very familiar with. And, you know, he has explained in some of the news reporting that he’s done interviews with that while Congress gives the Defense Department some limited authority to shift funds between different accounts, the appropriations acts that Congress passes requires that once money is moved, it’s subject to all the legal limitations of the account that it’s transferred into. So you can’t just put some money into this military pay account when there is a shutdown and there’s a legal limitation on that account.
Andrew Weissmann: Right.
Mary McCord: So there’s issues with respect to the Antideficiency Act. There’s also rules within the Department of Defense. This goes to your point about ethics rules, that before accepting any donation over $10,000, that has to go through an ethics office to determine whether the donor is involved in any claims, procurement actions, litigation, or other particular matters involving the department that must be considered prior to the gift acceptance. And that’s exactly what we’ve been talking about. Don’t accept gifts from somebody who might want something from you. Now, I don’t know, it’s reported this gift came from Tim Mellon. I don’t know if he’s expecting anything, but go back to our discussion of the ballroom, right.
Andrew Weissmann: But it’s also, it’s the precedent. It’s the camel’s nose, which is the famous phrase that comes from in law school, which is what the camel is going to put its nose under the tent.
Mary McCord: Yes.
Andrew Weissmann: And the next thing you know, the camel is in bed with you where it’s, you know, nice and dry.
Mary McCord: And warm.
Andrew Weissmann: And warm. And so that’s the concern is like, if you do it here and you do it elsewhere, you were going to run that risk. Mary, very quick thought, because I’m sure everyone who’s listening to this knows about the president is saying, you know, I’m suing the department.
Mary McCord: Or not suing yet. Right.
Andrew Weissmann: Yes, but he has done sort of this notice, but he’s going to sue them for $230 million.
Mary McCord: In two different matters.
Andrew Weissmann: Allegedly because of the, sort of the Russia sort of investigation, Mueller investigation and the other sort of much later, which is the Mar-a-Lago search. And he is like, you know, my rights were totally violated, et cetera, et cetera, et cetera. And he would be the judge and jury of his own case. And to me, the lawsuit is a fig leaf. Like my analogy was like, there seemed to be so little merit to the lawsuit and any normal person, if you were a career person would be like, we’re going to fight that and we’re not going to do it. And that’s what they do every day of the week. When someone brings these cases saying, you know, I won a case, I really won on the merits of the case. And there are all sorts of standards you have to meet. And the government defends that and very, very often they win. And sometimes if they really have messed up, they might settle.
But here that would be what the department would do. They’d say, you know, there are lots of defenses from you should have brought this case, you know, a long time ago, to you didn’t actually win on the merits of this case. And it feels like a total fig leaf for theft. My analogy was why don’t you just go into Fort Knox and just take the gold?
Mary McCord: Yes.
Andrew Weissmann: In the same way to relate it to the East Wing, it’s like, I’m just going to bulldoze it because it’s mine.
Mary McCord: Yes.
Andrew Weissmann: Right?
Mary McCord: Yes.
Andrew Weissmann: Which it isn’t.
Mary McCord: Yes. And to be clear, just to parse this out a little bit for those who might not have heard all about this, I mean, it’s two different administrative claims he’s made against the U.S. government, right. Thinking that he was wrong. So, these are under the Federal Tort Claims Act. He’s basically saying the federal government committed a tort against me. And you have to give notice of this before you sue. And that what you do when you give notice is you hope the government will settle. That’s a settlement you’re talking about and if they don’t settle, then you can sue. Well, he’s well past the time of notice, he could have sued by now, but his cases really have no merit. I mean, one is based on supposedly the wrongful search of Mar-a-Lago. Well, that was a search warrant signed by a judge and there’s been no suggestion. And in fact, any suggestion that there was anything unlawful about that warrant has been already resolved, right?
Andrew Weissmann: Exactly.
Mary McCord: In that criminal matter against Donald Trump.
Andrew Weissmann: Yes.
Mary McCord: But you know, the suggestion here is it will be up to Pam Bondi and Todd Blanche and his former defense lawyers to decide whether the government should go ahead and just settle with him and pay him that money. And we know from the immunity decision that if he says to his Department of Justice, this is what you need to do. That that is something that he has immunity from liability for. So, it’s really, even he, I think acknowledged this is like me paying myself and that’s problematic. And it definitely is.
Andrew Weissmann: Yes. I do think for the people at the department, in terms of the ethical propriety of it, I do think that they have to be careful. I mean, this is, to me, it clearly should be decided by career people and those career people should be doing what they would normally do here, because people are not allowed to be on both the judge and jury of their own case. To me, I think we’re going with big, big metaphors today because there’s the metaphor of the East Wing. And this is such an easy one to grapple with. It’s not even like taking the $400 million plane from Qatar because this is, he doesn’t have to even engage in extortion because he’s on control of the person who he might normally want to extort assuming that’s what he was doing. And so to me, this is all of a piece of sort of lawlessness and grift and graft. And just to end on something that reminds me of, you know, I’m a bit of a Francophile and I remember seeing the images of Notre Dame in flames and I didn’t realize how much it meant to me, even as an American because you just thought it was always going to be there. And here it’s much more wounding because, Mary, I know the first time I ever went to the White House and it was not for a president who I had voted for, I had such respect for the building.
Mary McCord: Yes.
Andrew Weissmann: And the history and the institution and you know what, so did that president.
Mary McCord: That’s right.
Andrew Weissmann: There was a sense of reverence. And I think that’s almost the point of it is that I can do this and that’s actually, you know, a part of my base. I’m not going to say all, because I don’t think it’s, that’s accurate that that sort of irreverence is on brand and is kind of the point.
Mary McCord: It is. It is. And I think that’s a fitting time to break.
Andrew Weissmann: Yes. Okay. I’m going to regroup.
Mary McCord: Yes.
Andrew Weissmann: I couldn’t get back on the horse. Let’s take a break and come back.
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Andrew Weissmann: Welcome back. Let me give a quick update on sort of the Ninth Circuit. It’s a little confusing and then we’ll turn something more substantive. I’ll do the quick update than, Mary, as you all know, for us being regulars, Mary is going to do the substance.
So there’s two things in the Ninth Circuit. One is the case that involves the military in Los Angeles. The other case which we’ll turn to is in about Portland. So the Los Angeles case, their district court has done a number of things. It’s was decided by Judge Breyer, not to be confused with Justice Breyer, his brother, but the big issue was whether the Ninth Circuit was going to hear the case en banc. In other words, it’s just the whole court because the decision was adverse to Governor Newsom and there was a request to have it heard so that they could change it. And the court decided not to do that. There were, I think, 11 judges who were in dissent. We’re not going to go over all of that. So, there was not an anyway a unanimous decision, by the way, you’ll note by saying there were 11 judges in dissent in California, it’s a very, very large state. So even with 11 judges, that’s not a majority. So that didn’t go en banc.
Now let’s quickly go to Portland. In Portland, you’ll remember Judge Immergut. We spent a lot of time talking about her district court decision. And then there was a Ninth Circuit decision two to one that was largely, not totally, but largely in favor of Donald Trump’s position. And we spent a lot of time talking about that. And the issue there was that the dissent in that case, the one had had a very impassioned plea that this case should go en banc. What is going on there is that we don’t know the answer. It is under consideration and the court has issued what’s called an administrative stay, a temporary stay. Do not think that means that their siding with the district court or not siding with the district court, it’s just to sort of keep things where they found them. So that means that at least one of Judge Immergut’s decisions that was appealed and was largely reversed, that court of appeals decision is temporarily stayed. And so the next shoe to drop will be whether there is an en banc granted in the Immergut case when it wasn’t granted in the Los Angeles case.
Mary McCord: So that people understand, in both of these cases, the one coming from L.A and the one coming from Portland, these appellate decisions are on the motion to stay the injunctions that the lower court’s issue. So, we’re still not anywhere close to the merits. This denial of en banc in the L.A. case was just en banc review of an emergency stay of the lower court’s decision while the actual merits of the appeal are going forward. And that’s the same thing that’s at issue in Portland, the court, because they’re considering taking again, an emergency stay en banc. They said we’re going to stay the panels, stay of the lower court. In other words, the lower court’s ruling holds for now. And I think it’s until the 28th, which is tomorrow, Tuesday at five o’clock.
Andrew Weissmann: Yes, it is.
Mary McCord: When the en banc briefings will be all there. And the reason I want to reiterate that posture is because substantively, I think that that is significant to the 11 judges who would have granted en banc review of the emergency decision. They did note, and this was a statement regarding the denial of rehearing en banc by senior circuit Judge Berzon. And he talks about how this is such an unusual posture even to be considering en banc. And he goes through the fact that he thinks that the panel that had originally said, you can review the president’s decision to federalize under Title 10, Section 12406, but it’s got to be very, very deferential that Ninth Circuit panel had said, you’re just looking at whether there’s at least a colorable argument that the predicate has been met, that the president is unable to execute the law with the regular forces. There’s got to be at least a colorable assessment of the facts that would support that in an exercise of honest judgment.
And what Judge Berzon is saying and with 10 other judges joining him is we think that’s way too much deference. This is about statutory interpretation. The statute does not even say it should be the president’s determination. It just says when these conditions are met, there can be a federalization. And we hope that when the case actually gets to the merits, the panel will not give it that kind of deference. And if the panel does give it that kind of deference, we want this case to go en banc at that point in time.
And then he has a very, I think, very well written opinion about other things too, like the whole history of this particular statute versus the Insurrection Act. And he distinguishes those old cases that we’ve mentioned before, like Martin v. Mott, where the Supreme Court suggested in the 1800s, that deference was absolute. And he says, those are completely different. So, the judges out there in the Ninth Circuit are really staking, right, their positions on these things.
Andrew Weissmann: And people remember that we’re waiting for the Supreme Court to review a very, very similar matter coming out of Chicago. So this is happening all across the country. Mary, I wanted to turn to something that you raised.
Mary McCord: I was just going to say it is fully briefed, just so people know, we’ve been waiting for more than a week on that. And that says something is happening there, right?
Andrew Weissmann: Yes. It says something. We just don’t know what, so let’s turn to this issue that you raised, which is, let’s assume that some federal officer, and let’s just take a hypothetical that a federal officer who works for ICE does something intentionally against the law and in affecting an arrest and assume that they didn’t have probable cause. And they didn’t even think they had probable cause. And let’s assume that they use undue force unknowingly.
Mary McCord: Yes.
Andrew Weissmann: In other words, it’s not a close call because there’s lots and lots of law in that, actually I’ve litigated that as a lawyer for somebody who was beaten up in my defense lawyer dates.
Mary McCord: Yes.
Andrew Weissmann: And so.
Mary McCord: We brought civil cases of excessive force.
Andrew Weissmann: Yes.
Mary McCord: Yes.
Andrew Weissmann: And so that’s one and by the way, when you’re on the government side, that’s something, one of your jobs is to be very candid about sort of like what happened here. Obviously if there’s a way to defend it, that’s within the law and good faith, you can do that. But if you think something bad happened, that’s why you have a different duty as a government lawyer than as a private lawyer. So let’s assume that the state wants to bring a case about this or the person wants to bring a state case against that federal officer.
Mary McCord: So, and be specific, let’s say a criminal case, right? Like an assault, you could see a sexual assault, you know, against somebody, a detainee.
Andrew Weissmann: Yes. And let’s just say there’s all hypothetical, but it could be a criminal case. You could also have a civil case. And so, the federal government let’s assume just says, we’re not doing that because our view is, you know what, we believe in for our friends, everything ,and for our enemies, nothing. As I said, it’s a hypothetical which people might recognize as being tethered.
Mary McCord: Tethered.
Andrew Weissmann: To the facts.
Mary McCord: Tethered to the facts.
Andrew Weissmann: Tethered to the facts.
Mary McCord: We could as both.
Andrew Weissmann: Yes. I guess we’ve been doing this for many years. Okay. Mary, I’m going to play devil’s advocate. Why isn’t the federal government entitled to say, you know what, it’s going to interfere with our federal regime here, which is these are people doing their federal role. And we can’t have the federal government going in and having the states be able to stop it.
The counter example would be, are you saying that after Brown v. Board, when people wanted to go in and protect people and let’s assume that to do that, they’re doing crowd control and the people who are being sort of pushed aside now say, oh, I actually think you did that intentionally. And I want to sue you civilly or Alabama wants to sue you criminally. Shouldn’t there be a supremacy argument. And so, by the way, this is for our listeners, this is how lawyers think.
Mary McCord: You got to think about both sides always. Right. And how would, if the shoe was on the other foot, would it feel differently? Like, because you want to be principled. So yes, the supremacy clause does exist for a purpose. And it’s basically to say, when we have a conflict between federal law and state law, federal law is going to govern. And that may mean that the state law cannot be actually enforced there.
So how does that play out in your hypothetical? It does not mean that federal officials are free to break state laws willy-nilly just because they happen to be doing something to enforce federal laws. So, it does not mean that an ICE officer could, for example, rape a detainee and be like, well, I was detaining this undocumented immigrant here as part of my federal functions and therefore the supremacy clause governs.
Andrew Weissmann: So that’s a great example, because it’s so unrelated.
Mary McCord: Exactly.
Andrew Weissmann: To what could possibly be legitimate.
Mary McCord: That’s why I wanted to use it to put out the two standards. So the way that courts have sort of developed over the, really centuries, of how this plays out is that the courts will apply supremacy clause immunity when there are two conditions that are satisfied. First, the federal officer was performing an act that he’s authorized to do by federal law. So already in my rape hypothetical, he’s not authorized to rape somebody by federal law, right? So it would be out there.
And two in performing the authorized act, the federal officer did no more than what was necessary and proper. Again, raping somebody completely outside of your federal responsibilities, certainly not necessary and proper to detain someone. So that is one where there would be no conflicts, there’d be no supremacy clause issue. But if you have, you can see the closer case, right? The case where in the course of detaining somebody excessive force, or at least in the opinion of the detainee and perhaps their lawyers, excessive force is used, someone is injured. And then the question would be if the state and locals wanted to let’s say, make an arrest for an assault. Was the federal officer performing an act he was authorized to do by federal law? Okay. He would say, I’m authorized to detain this undocumented immigrant. Thing two, in performing the authorized act, did the federal officer do no more than was necessary and proper. And that is where the factual issue would arise. Right? If it would be so clear to anybody that the amount of force used was far excessive to what was necessary. And you can think of all kinds of factual hypotheticals, where that might be the case, then maybe he’s not entitled to that immunity under the supremacy clause.
Andrew Weissmann: So, it really gets to the courts with once again, deference thinking about, are you really acting as a federal officer here?
Mary McCord: Right.
Andrew Weissmann: Like, is that really the role? And so, I love your hypothetical even though for a lot of people it’s going to sound extreme and we’re not suggesting that there was rape.
Mary McCord: No.
Andrew Weissmann: But it’s a perfect example because it’s so easy to see that it couldn’t be, you’re doing it to say it would. So obviously not be what law enforcement would do as law enforcement.
Mary McCord: Yes.
Andrew Weissmann: But obviously like all things that can be lots of gray.
Mary McCord: And I think what’s tough here is the rhetoric that’s being put out by high level officials in DHS, in the White House that is really sort of one could say encouraging some pretty rough tactics on the part of ICE agents. And we are seeing pretty darn rough tactics on the part of ICE agents. Not all of them, I’m sure, but this is what has caused state and local officials in Illinois and in California to say, look, if you all violate our criminal laws, because you’re going way beyond what, and now I’m adding words. I don’t know if they said those words, but theoretically, you’re going way beyond what you need to do to detain somebody. We’re going to charge you with that.
And then we saw both Stephen Miller coming in on social media. That that would be a felony to lay one hand on a federal officer, that is just not true. And we’ve got Todd Blanche in his actual role as a deputy attorney general writing a letter to officials in California, essentially saying that, not essentially, a quote is, the Department of Justice will investigate and prosecute any state or local official who violates these federal statutes or directs or conspires with others to violate them. And by violating federal statutes, he’s really just talking about federal laws that prohibit impeding a federal officer in doing their duties. But again, this is where the facts matter, right? If the officers are doing something that goes —
Andrew Weissmann: Exactly.
Mary McCord: — beyond their duties into a crime, then you don’t have those issues.
Andrew Weissmann: Also, wait, let’s just be clear. We’re talking about a lawsuit, right? Like we’re going to go after you. I’m sorry. If the state would go to a court.
Mary McCord: That’s right.
Andrew Weissmann: And a court would make the decision. This is not a DOJ thing to be like, oh, wait, if you bring a lawsuit, we’re going to go after you. It’s not like the state suddenly beats the person up because they say the ICE agent beats someone up. That I could understand why that this is about going to court. You don’t get threatened for going to court. If you think that it’s a frivolous case, you can then go to court and say they should get sanctions, but it’s just not an appropriate way to respond. And for the Republican Rarty that used to be about state’s rights, it is, I can hear Nicolle Wallace saying this to me right now, because I’m going to be like, it’s ironic and hypocritical. And I can just hear her going, Andrew, those are dead.
Mary McCord: Yes, I can too. And the reason this was also remarkable is that just see these clashes, right, that keep happening that are raising all these federalism points that you just made. And it’s really interesting, right, to see sort of the way that some of our public officials switch their positions on federal state relationship. So, shall we take a break?
Andrew Weissmann: Yes. I was going to say the same thing. Let’s take a break. We’ll come right back and continue.
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Mary McCord: So welcome back. As indicated at the top, we are not going to completely rehash all of the arguments why Andrew and I and many others who are former Department of Justice officials, Department of Defense, other national security officials, do not believe that there is domestic or international law authority for the strikes that we have seen. We have now, the U.S. has killed more than 40 people out, either in the Caribbean Sea or in the Pacific. Supposedly these are drug cartel members, some of whom may be designated as foreign terrorist organizations, newly designated by this president’s administration just since he took office in January. Being a foreign terrorist organization does not come with the authority that the United States can kill people. Those who are thinking about what about Osama bin Laden and other terrorists that we’ve killed in the past that were part of Al Qaeda or ISIS that was under authority. And people can argue about the meats and bounds of that authority, but that was under authority provided by Congress, the authorization of the use of military force. There’s no interpretation of that that would apply to cartel members.
So already there’s been lots written about this. It’s hugely interesting and scary because if the president —
Andrew Weissmann: Yes.
Mary McCord: — can just decide somebody is a terrorist and use, you know, a lethal strike. There’s no real limiting principle that says that’s only out in the international waters. It could be in the United States. It can be against other people he considers as terrorists.
Andrew Weissmann: So, I wanted to raise a couple things on that, Mary, that you’re raising, because one of the things we still do not know, and we saw this when we were dealing with the domestic cases of Mr. Abrego Garcia, and I’m just s using it as one illustration. We just don’t have the facts from the government.
Mary McCord: That’s right.
Andrew Weissmann: And like the few times that the facts have actually had to been produced by the government, they’ve not done well. And so we’re missing here and understanding that we wouldn’t always get all of the facts. There could be sensitivities as you and I know very well, but there’s both a dearth of any sort of sense of obligation to allay fears that that was a factual predicate for this. And so that you should trust them, CEG (Ph) or discussion with Brian Goodman about the presumption of irregularity.
Mary McCord: Right.
Andrew Weissmann: But we also don’t have what the government says is a legal opinion. They say that the Office of Legal Counsel has signed off on this and said that there is legal authority, but we don’t know how that comes about. And one of the things I tend to agree with you, which is like, I don’t see the legal argument here and I certainly don’t even see the facts to support it. But both of those it’s like there could be answers, but we don’t have it.
Mary McCord: You know, a lot of people can’t really think of how that could be the case. You know, given what we know, what little we do know.
Andrew Weissmann: So, Jack Goldsmith wrote a very interesting piece about what happens when the Office of Legal Counsel writes an opinion and says, yes, we think that you legally can do this. And by the way, this happens in the private sector, a lot where general counsel says or outside counsel says, we think that you can do this. And that provides, and it should provide as long as it’s being done in good faith.
Mary McCord: That’s right.
Andrew Weissmann: A basis for the person to say, well, I relied on counsel. And so here and again, it has to be done in good faith, not as part of a criminal conspiracy, for instance.
Mary McCord: Right.
Andrew Weissmann: And there’s sort of two ways that this provides a sort of get out of jail free card. Let’s leave aside the pardon and power and all of those things. And one is that if you have a legal opinion, you’re going to have operated in good faith because you can rely, you should be able to rely on a good faith, legal opinion. That’s how our system works in the same way that if you go to an accountant, an accountant says this complies with the accounting rules, you’re entitled to that.
Mary McCord: That’s right.
Andrew Weissmann: If your people have tax advisors, you’re entitled to rely on your tax advisor.
Mary McCord: And this could come up for example, right, if there was some future effort to prosecute somebody who was responsible for these strikes, right? They could say, I have this legal opinion. Right?
Andrew Weissmann: Right. Or the people whose family members were heard have tried to get into court with lots of lots of issues with that to say, you know, you killed a family member and I should be able to bring a lawsuit to deal with that. And the second thing that Jack Goldsmith notes as to how that legal opinion can provide cover for people in the administration is when the government says you can do this. There’s a doctrine of sort of a stop from later saying there’s a doctrine of, oh, yes, never mind. I know we told you, you could do it, but now we are telling you we’re withdrawing that and you can’t. They can do that going forward, but they’re stopped from going backwards to say, oh, yes, I know you relied on it, but we’re not going with that anymore. And so, this is where it’s so important that the government have people like Mary McCord in it thinking dispassionately.
Mary McCord: Well, people far smarter than me, right?
Andrew Weissmann: No, but I was using it. I was using it about people who are centered about the principle going to apply across administrations. And it’s going to apply, regardless of whether you think as a policy matter, something is good or bad that you’re really thinking about the principles of the matter. Because once you give that opinion and say it’s, yes, it has huge consequences. So, you really have to be sure that you are ethically grounded and that you are not even unconsciously stretching the law to get to a result.
Mary McCord: Yes. That’s where it’s important to point out that while what the government says they did is get a legal opinion from the Office of Legal Counsel. Now that they have Trump’s new assistant attorney general heading that office, his hand selected person after they were kind of bypassing that office for a while. At the same time, they went and got that opinion, which again, none of us have seen, they’ve also in the Department of Defense. I’m not going to call it the Department of War because only Congress can change the name of the Department of Defense. We’ve seen the judge advocates general. Those are the military lawyers whose job it is to provide legal advice. We’ve seen them fired and sidelines. And even Secretary Hegseth has said it’s so that there won’t be roadblocks, right?
So, query, can you, or should you be able to rely on this OLC opinion that Trump got after he installed his political appointee in that position while you fired all of the long-term career officers, is that, can you say career officers, your long-term officers? In fact, the heads of army and air force had been for a long time, three-star generals, right. And they were fired because the advice they had to give the Department of Defense did not want to hear.
So, I think this is undermining reliance on legal opinions yet, you know, for now there still is that type of a defense. The other thing that I think is so interesting about what’s happening now is what I mentioned at the start of the episode, which is that we had our first instance of survivors. And, you know, again, if these are boats or semi-submersibles that are loaded with drugs, whether it’s fentanyl, which we know doesn’t come from Venezuela, or whether it’s cocaine, whatever it may be, if they’re loaded with drugs, the normal thing for the U.S. to do would be to seize that vessel, seize the drugs, arrest the people, bring them to the United States and prosecute them.
And so to me, remember the idea behind this is these are bad people who are bringing drugs here. So if that’s the case, they’re so bad, we can kill them, says the president, then why are you sending them back to the two countries they came from, Columbia and Ecuador? If they’re so bad, if you’ve got the evidence to prosecute, why aren’t we prosecuting? If they’re so bad, why are you sending them back to just do it again? My own view is there is a lot there that they knew. If there’s a prosecution, those men are going to get defense counsel. Those defense counsel are going to ask for discovery and discovery means I want to know all the facts, including the legal opinion by which you tried to actually murder my client by sending a, you know, a lethal missile at the boat they were in or the semi-submersible they’re in. And that’s a lot of information that it seems like the government maybe does not want to be disclosing. But to me it really undermines the argument that, oh, this is about the dangerousness of drugs coming into the United States.
Andrew Weissmann: Absolutely. And we saw the same kind of gamesmanship that appears to be at foot here in the way that Mr. Abrego Garcia was treated when he came back to the United States where it’s like, okay, now we’re going to criminally prosecute him. And then it’s like, oh, no, we’re going to deport him. Now we’re going to criminally prosecute him.
Mary McCord: Yes.
Andrew Weissmann: Now we’re going to deport him.
Mary McCord: Right.
Andrew Weissmann: And remember, we’re in that case, to your point, Mary, we are awaiting discovery because —
Mary McCord: That’s right.
Andrew Weissmann: The judge there has said, he’s entitled to discovery on vindictive and selective prosecutions. So that is maybe a very good, quick reminder that Letitia James, who was recently indicted has pleaded not guilty. Her lawyer made a reference to that this is a vindictive and selective prosecution. There’s no doubt, I think in both our minds that we’re going to see the same kind of motion that James Comey made being made by Letitia James.
Mary McCord: I think it’s already set for hearing December 5th. Yes. December 5th, I think.
Andrew Weissmann: Yes. What can I say? Like, you know, Mary, once again.
Mary McCord: That’s enough, I think is what we’ll say. This is enough.
Andrew Weissmann: Yes, exactly. This is like, it’s really depressing and it’s really good to see you. This is like the bright spot and a rainy, cloudy, torrential down board day.
Mary McCord: That’s right. Sometimes you just have to be with other people and talk it through. That’s what we do —
Andrew Weissmann: Totally agree.
Mary McCord: — with each other and with all of you.
Andrew Weissmann: So once again, thank you all for listening. By the way, this show, thanks to our wonderful, wonderful team is the recipient of yet another award. We won the gold medal Signal Award.
Mary McCord: Yes.
Andrew Weissmann: And that is something we’re very, very grateful to the judges there and both Mary and I are incredibly grateful to all of you. Sometimes we know that this can’t be easy to listen to us, even under normal circumstances.
Mary McCord: Yes.
Andrew Weissmann: But even now, and a big, big, thank you to the people behind the scenes who make us sound good and be good and do all of the background work. So, thanks to everybody. Remember that you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC originals ad free. And you’ll also get subscriber only bonus content.
Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producers are Iggy Monda and 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.
Andrew Weissmann: Search for Main Justice, wherever you get your podcast and follow the series.
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