As the Supreme Court weighs in on the president’s use of the Alien Enemies Act, Mary and Andrew approach this week’s developments with both concern and relief. While relieved at the unanimity of the High Court’s belief that due process is a necessity, the concern lies with the Trump administration’s response to a court order directing them to arrange the return of Kilmar Abrego Garcia, the man who was wrongfully deported to El Salvador. They also see cause for alarm after the government retaliated against their own lawyer in this case. Andrew and Mary then take a beat to spotlight the DC circuit upholding a judge’s decision related to scope of Trump’s J6 pardons. And before closing out this week’s episode, they detail the lawsuit brought by the conservative leaning NCLA over the constitutionality of the sweeping tariffs the president has announced.
Further reading: This is Mary’s recent op Ed in the Washington Post: The White House war on Big Law hits some speed bumps
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, welcome back to Main Justice. It is Tuesday morning, April 8th. I am Andrew Weissman, and I’m here with my damaged, but still standing co-host, Mary McCord. Mary, how are you?
Mary McCord: I’m fine, I’m fine, and I’m happy to be here this morning, although I wish we had better, more happy things to talk about, but yes, the damage is because I took a little tumble this weekend while running, so.
Andrew Weissmann: Yes, but not your fault. It’s like drivers need to be better at focusing on people running.
Mary McCord: Public service announcement. While you are driving and taking a corner too close, please pay attention to whether there might be a runner there who you might or might not just about hit, and that runner have to quickly dodge out of the way and trip and fall to avoid you hitting her. And then please stop when you actually almost hit somebody. That would be nice, that would be good manners.
Andrew Weissmann: Yes, you think so?
Mary McCord: Yes, and please get off your phones. I don’t know if this driver was on a phone or not, because I was too busy dodging out of the way to avoid being hit, but get off your phones.
Andrew Weissmann: Yes, get off your phone if you’re walking and if you’re driving, either way. But also, how dare they, because this interferes with Main Justice.
Mary McCord: I know, because I am one-armed now because my other shoulder was dislocated in the fall and is in a sling, and so it makes things very difficult.
Andrew Weissmann: Yes, well, a one-armed Mary McCord is still better than a million other people, so I’ll take it.
Mary McCord: Well, I don’t know about that.
Andrew Weissmann: But that is a really good segue to an announcement we have, which is, once again, we are nominated for a Webby Award as sort of a People’s Choice Award, which means you can vote for that. And so once again, for those people who are listening, if you enjoy it, you can go to our show notes and you can see the nomination for this year’s Webby Award for our podcast. It is a Webby Award for Prosecuting Donald Trump because it’s for last year, so don’t be confused by that. It’s the same podcast that we did, but because it’s last year, the name was Prosecuting Donald Trump, and you can go on there and vote. You only have until April 17th, so if you want to do this and you’re listening to this, don’t put it off.
Mary McCord: That’s right.
Andrew Weissmann: And we really appreciate it. It’s lovely when we do this to know that there’s an audience out there that appreciates what we’re doing, and we appreciate you. One quick thing, there are other MSNBC-produced podcasts that are also nominated, “Into America,” and also Chris Hayes’ podcast, which is wonderful, “Why Is This Happening?” So with that, there is a lot to talk about.
Mary McCord: Yes, we’re going to start by talking about two very significant cases, the case involving Abrego Garcia. He is an El Salvadoran immigrant who was mistakenly deported to the terrorist detention facility in El Salvador against a judicial order not to deport him to El Salvador, and the case involving what to do about that. We were already going to talk about that, and the Supreme Court did something related to that last night, and so we’ll talk about that, and we were going to talk about that in combination with, of course, the case we’ve been talking about for several weeks involving the president’s declaration or proclamation, actually, under the Alien Enemy Act, the use of the proclamation to deport alleged members of Tren de Aragua to that same El Salvadoran terrorist detention facility without any due process, and that’s a matter that also has hit the Supreme Court.
And we had a Supreme Court issue a ruling on its emergency. In both of these matters, the Supreme Court issued actions, I won’t even say full rulings, on its emergency docket, and so we will start, of course, talking about both of those things, and there are some things, I think, about that are very bad, but other things that I think maybe people don’t understand in terms of the actual significance of those things.
We then want to talk about something we actually have not spent time on, on this podcast, and I think it’s important for listeners to know, and that is this effort of the Trump administration to actually extend the January 6th-related pardons to crimes committed by January 6th defendants that are completely unrelated to January 6th, and a district court judge said no, and a circuit panel said no, and I think it’s important for people to understand that.
Andrew Weissmann: Yes, this is one which, you know, it’s interesting. It’s dear to both of us, and both of us have followed it. It’s gotten zero traction, so I hate to make this like a teaser, but stay tuned for that, because this is something Mary and I have really put off talking about because we wanted to find a place, and that’s going to be an interesting discussion, both in terms of what the judges are doing, but also the government’s position, and then there’s a last but not least, a third topic.
Mary McCord: Yes, and this is something we have not also yet talked about, although it’s still relatively new, which are the tariffs, right? I mean, there’s been tons of news about the tariffs, the toll they’re taking on the markets, the toll they’re taking on small businesses, but I think a lot of people may not understand sort of the separation of powers issues that are raised by the president using executive authority rather than Congress imposing these tariffs.
Andrew Weissmann: Right, this legal issue.
Mary McCord: That’s right.
Andrew Weissmann: I know, everyone’s talking about it in terms of, yes, it’s true, there’s this big picture, but since we’re lawyers and people are here, and the topic is Main Justice, we’re going to take a sort of legal view into that, and it’s a fascinating, I’m going to give a one tiny spoiler alert. Pay attention to the group that is challenging the tariffs is not the group that you might think. It is a conservative group that is challenging the legal authority of the executive branch to issue these tariffs.
But with that, Mary, shall we turn to the topic du jour, and maybe it’s worth doing a bit of a level set because there’s sort of two separate issues here. As you mentioned, there are two cases. There’s the case in Maryland of Mr. Abrego Garcia. It is conceded that he was wrongfully removed from this country with no due process and in contravention of an immigration judge years ago saying that he can stay here legally.
Mary McCord: Well, that he cannot be removed to El Salvador in particular, yes.
Andrew Weissmann: Exactly, yes. And so if the government wanted to reopen that, just like the case we’re going to talk about with Judge Boasberg, they had a means to do this through notice and a hearing and saying to the judge that that underlying order should be changed. They could prove that they thought he was a member of a gang. Remember, he is not accused of being part of the sort of group–
Mary McCord: Venezuelan gang.
Andrew Weissmann: Exactly, the Venezuelan gang. And there’s some vague allegations that he’s part of MS-13, but that has not been established. And so he was removed and sent off with a no notice, no hearing, and put it in legal terms, no due process–
Mary McCord: That’s right.
Andrew Weissmann: Pre-deprivation, and was sent off to the same prison in El Salvador as the people in the Judge Boasberg case.
Mary McCord: The people alleged to be members of TDA.
Andrew Weissmann: Exactly.
Mary McCord: And just before we get into the legal issues, Mr. Abrego Garcia came here as a teenager, I believe in 2011. I think he was 16 years old. And he and his family fled because they were being threatened by cartels and gangs in El Salvador. And they came here, and he has no criminal record here at all. He is married to a U.S. citizen. He has U.S. citizen children. He has been checking in, at least this is according to his family and him. He’s been checking in with Immigration and Customs Enforcement regularly, yearly. People who are known to be here are required to do that. He’s been doing all the right things. Yet nevertheless, he was apparently, according to the government, on that third flight on March 15th, the same day that two flights took off with alleged members of Tren de Aragua in violation, or at least potentially in violation of Judge Boasberg’s order, and we’re going to talk more about whether there was contempt there.
There was a third flight that day where the government says none of the people on that flight were alleged members of Tren de Aragua. They were all being deported based on other immigration authorities. But the government, as you said, Andrew, has conceded in court. It was a mistake. It was an administrative error to put Mr. Abrego Garcia on that flight.
So his family, of course, sued to say, bring him back. Do what you can to bring him back. And what did the government say, Andrew?
Andrew Weissmann: Well, so the district judge ruled in favor of Mr. Garcia and the Fourth Circuit Court of Appeals, not known as a sort of liberal bastion. I mean, it’s a very well-respected circuit. It is a circuit where right after 9/11, lots of terrorism cases were brought in that circuit. And a unanimous ruling with different opinions, but a unanimous ruling on the substance upheld the district court.
And I’m going to read from a quick paragraph from the circuit opinion, and then I’m going to talk about the government’s–
Mary McCord: I’ll be so curious if it’s the same ones that I have, that although I highlighted a bunch of things, so–
Andrew Weissmann: Yes, there’s a lot, but I tried to pick out something short. So this is from Circuit Judge Thacker, joined in by Judge King, and this is the quote. “The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable,” unquote.
Mary McCord: And yes, I did have that highlighted.
But let’s back up for one second, because the reason that the circuit is writing that is because the government came in and said, “We acknowledge it was a mistake, but we can’t do anything more. “He is an El Salvadoran citizen in custody in El Salvador, and we don’t have the power to order whoever runs that prison or the president of El Salvador. We don’t have the power to order him to return his own citizen.”
Andrew Weissmann: And there was a snarky comment from the White House when the district judge said, “I’m ordering you to do whatever you can to bring him back.”
Mary McCord: Facilitate bringing him back, that’s right.
Andrew Weissmann: The White House issued this sort of snarky comment that said, “We suggest that the district judge direct that to the president of El Salvador.” It’s almost not worthy of discussing this because it’s so stupid. It’s just assuming that we’re all morons. The district judge and the circuit court address this issue. This is not like the government sent somebody off to some foreign country where we have no relation and the person’s now in the wild and they don’t know where they are and they’re just going about their business and there’s no relationship with any foreign country.
Even then, by the way, the United States might have an ability to try to bring him back. But here, the government has touted their agreement with El Salvador.
Mary McCord: We have a contract. We’re paying them.
Andrew Weissmann: We’re paying them to do it. You have Kristi Noem talking about how this is one of the tools in our arsenal to deal with the immigration problem. And so the idea that this is somebody who is out of the control of the government, my view on that is not only is there no record support, but the government has to come in and prove it. If they want to come in and say that we don’t have the ability to do anything, it’s not a question of the court ordering El Salvador to do anything, it’s the government has jurisdiction over America and the American people.
And my view is–
Mary McCord: And the American government.
Andrew Weissmann: If the American government can place him there under a contract, they can bring him back. And so it’s just was such a silly make-weight to say that. But this is my big picture that, I was talking to Lawrence O’Donnell last night. This is my big picture because legally, the government agrees there was a mistake and their only argument is that somehow we don’t control, but we’re not putting on proof that we don’t control and have any ability to facilitate his coming back, which is just factually not supported.
This is my big picture. Mary, you have been in the government and I have been in the government for years. I can’t imagine a situation where internally you have realized that you have made a mistake, that you have deported a human being to another country and you do not do anything to bring the person back. I can’t think of an administration where the conversation wouldn’t be, regardless of party–
Mary McCord: There wouldn’t be litigation.
Andrew Weissmann: How do we fix this?
Mary McCord: There wouldn’t be litigation.
Andrew Weissmann: Of course not.
Mary McCord: They would be working to fix it.
Andrew Weissmann: You would say, how on God’s green earth do we bring this person back as fast as possible? It’s an example of cruelty completely matched with lawlessness.
Mary McCord: Dehumanizing, it’s almost as like this is not a human being we’re talking about with a family, with children. And that family was completely, like he got picked up. They didn’t even know until he was able to make a call saying he was being deported. There was no opportunity to contest this.
And what you’re saying though, Andrew, segues so nicely into talking about the government attorney in court, because essentially what you’re saying is kind of like what the lawyer said. This is a lawyer who has been arguing various cases about immigration. He is not somebody who’s been pushing back hard on the administration. He’s been going in and arguing cases, including, I think he was part of the team that was involved in the Venezuela case. Yet he said to the court in candor, he did what he had to do in candor and said, I haven’t been able to get a satisfactory explanation about why the government doesn’t think that it could bring him back.
And for that, and for admitting that it was a mistake, he was put on administrative leave, and according to the Attorney General of the United States, it was for failure to engage in zealous advocacy on behalf of the United States. And here’s what the Fourth Circuit had to say, Judge Thacker, about that. Of note, in response to the candid responses by the government attorney to the district court’s inquiries, that attorney has been put on administrative leave ostensibly for lack of zealous advocacy, but the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a government attorney.
I mean, retaliation against someone who is doing what they are obligated as an attorney to do, which is tell the truth to the court, is just, you know, we’re at a new level here, right? We’ve seen retaliation for lots of things, but we’re at a new level here.
Andrew Weissmann: And that attorney, just to be clear, is not some deep state attorney.
Mary McCord: Yes, that’s what I was trying to say, yes, exactly.
Andrew Weissmann: So let me read you what the senior DHS, Department of Homeland Security, spokesperson has said, because it is equally, I won’t say shocking, but it’s easily concerning.
Thanks to President Trump, foreign terrorist organizations no longer have legal protections in America. Mr. Garcia was a leader in MS-13, a brutal gang that rapes, murders, and maims for sport. Credible evidence links him to human trafficking. Footnote, no evidence was presented to the district court or the court of appeals on that. If they have proof of it, they, as a way to have had a hearing and to prove that. But that is not something, if they say that now, it’s like, well, why didn’t they present that to the court? It’s certainly cast doubt on it. But if they can prove it, go right ahead. That’s what the hearing would have been for.
And then, instead of acknowledging the hard work of our law enforcement in making America safe again, the mainstream media is trying to turn a violent gang member, see e.g., no proof, into a media darling and victim. This isn’t a misunderstood soul. This is a ruthless criminal who terrorizes communities. The truth is simple, he’s off our streets. That’s the story.
Here’s what’s just so shocking about that. Let’s assume that is all true. There’s no proof of that, but let’s assume that is true. That has nothing to do with due process. Under that reasoning, and this president, who was a criminal defendant in four cases, should be the first person to know this. You don’t sit there and say, oh, you know what? Well, Donald Trump committed crimes in four jurisdictions, so let’s just send him off to jail. This is like the queen in “Alice in Wonderland,” off with her head, trial to follow.
That is what due process is. The idea that it’s like he’s off our street because he’s a bad person, that is irrelevant to the legal principle of due process, and you didn’t present proof of it. But it’s just so shocking to me that of all people, you’d think somebody who had been a criminal defendant would understand that.
Mary McCord: Yes, and you know, what you’ve said was really partly what’s encapsulated by an amicus brief filed by three well-known legal scholars in the Supreme Court, when of course the government raced up to the Supreme Court on its emergency docket, said, “Please stay this order of the district court to use all efforts to facilitate the return of Mr. Abrego Garcia” by what would have been 11:59 last night, Monday night. The government raced to the Supreme Court and said, “Put a stay on that, we can’t do that” made all these arguments again that they’re unable to, you know, this is foreign diplomacy and very sensitive, and they can’t possibly do this on this timeframe, and they shouldn’t have to do it at all because they don’t have authority over the El Salvadoran president.
In the Supreme Court, there was a very brief, three-page amicus brief filed by Dean Erwin Chemerinsky at UC Berkeley of Law, Larry Tribe, and Martha Minow, all constitutional scholars, who said, “At bottom, the solicitor general,” meaning the government, “The government’s argument is that “once the executive branch has removed an individual from the United States and arranged for that individual to be held in a foreign prison, an Article III court is constitutionally disempowered from ordering that the individual be returned to the United States, regardless of whether the executive branch’s removal of the individual lacked any statutory basis and failed to afford the individual any due process, and flouted a court order issued pursuant to a congressional statute barring removal.”
They went on to say, “If the government’s argument were correct, the executive branch would possess a shuddering degree “of power, power that the president could wield in extreme and extraordinary ways, including against American citizens that the president simply disfavors.” Because again, once out of our territory, the government’s position here is, “Our hands are washed of this, we have no more power, “and that should frighten everyone.
Andrew Weissmann: Even when they’re conceding that it was a mistake.
Mary McCord: Exactly.
Andrew Weissmann: So Mary, what did the Supreme Court do for the request for a sort of administrative stay?
Mary McCord: Yes, and I think this is important because the Chief Justice issued an administrative stay. That does not mean the court has ruled on the merits, it does not mean that the court agrees with the government, that means they wanted a little bit more time to get some briefs and figure this out, so he just issued an administrative stay, which is just meaning, District Court Judge–
Andrew Weissmann: Hold, everything’s on hold for a moment.
Mary McCord: Time out, time out.
Andrew Weissmann: And a very short timeframe. The papers are due today, as I understand it, from both sides, and one side’s–
Mary McCord: Already filed, that’s right, that’s right.
Andrew Weissmann: Basically, everyone was ready, and so we are waiting right now for a decision.
Should we take a quick break and come back and talk about the Supreme Court? We’ve got the Supreme Court issuing this administrative stay in the Abrego Garcia case, but also last night, there was a lot of activity yesterday because the Fourth Circuit issued its decision, the administrative stay that you just talked about from the Chief Justice, that also came down yesterday, and then last night, there was a decision from the Supreme Court that was sort of 6-3-5-4 on this issue, but in many ways was 9-0, and it’ll be interesting to see whether you and I have the same view of this.
Let’s come back and talk about what the Supreme Court did in the case from Judge Boasberg.
Mary McCord: Sounds good.
(BREAK)
Mary McCord: Welcome back. So as promised, this was just one of the things that happened late yesterday. Even later than this, we had the Supreme Court issue a response to another emergency appeal by the government, and this was in the case we’ve been talking about, the case that involves the two temporary restraining orders issued by Judge Boasberg back on March 15th, ordering the government first not to deport the five plaintiffs who had brought the case, not to deport them under the authority of the Alien Enemies Act without any due process, and then his second order after he issued a presumptive class certification classifying all the alleged members of Tren de Aragua as plaintiffs in a class action, and ordered that no one be deported under solely under the authority of the Alien Enemies Act proclamation to El Salvador, and that any planes in the air be turned around.
As we talked about before, this raised two issues because there was a question since two planes carrying people being deported solely under the authority of the Alien Enemy Act, two of those planes did leave, still unclear exactly what time they left or exactly what time they left U.S. airspace or exactly what time they landed in El Salvador, but they certainly left after the first TRO, potentially after the second TRO, and those, we believe around 140 deportees are now in that prison in El Salvador, so there’s an issue about whether the government violated Judge Boasberg’s order, that issue is still a pending issue, we’ll come back to, but then the substance of whether the judge could order them not to be deported there under the Alien Enemies Act, that is what went up to first the Court of Appeals and the court in a split ruling, two to one, said yes, this is something Judge Boasberg had authority to do.
The dissenting judge said, well, this should have been brought as a habeas corpus proceeding as opposed to a proceeding under the Administrative Procedure Act, so again, a technical distinction, that’s what went to the Supreme Court and that’s what in a five to four ruling, the court last night said, we’re not reaching the merits of whether this was a proper proclamation under the Alien Enemy Act and whether it can be used this way to deport members of a criminal gang designated as a foreign terrorist organization outside of the country, we’re not ruling on that, but this should have been done in habeas, so what is habeas, Andrew?
Andrew Weissmann: Can I just say, before we get to that, I think there’s been so much misreporting about this decision because of this idea that it’s five four on this technical issue of should they bring this under habeas or under the APA, the Administrative Procedures Act, and that, for most people listening to this, they’re like, who the hell cares?
Mary McCord: Who cares?
Andrew Weissmann: But that is what lawyers do, is that we worry about what particular statute is and should it have been brought under this versus that and there are venue issues, like where you can bring those particular statutes, but here’s the critical issue and this was something that was said in the per curiam, the main opinion of the court, but also in the dissents, everybody said this.
Mary McCord: Yes.
Andrew Weissmann: All nine justices agree that the plaintiffs here were entitled to due process, that they were entitled to be heard before they were removed. We talked about this issue of if you remove 100 people and what if you make a mistake is to 10, weren’t they entitled to say, you know what, the statute doesn’t apply, this is not an invasion, that the gang is not invading, that there’s no connection to a foreign government.
Mary McCord: That I’m not part of the gang.
Andrew Weissmann: I’m not even in the group.
Mary McCord: Yes, exactly.
Andrew Weissmann: And so that’s sort of like we see with Mr. Garcia, the issue of why you want a hearing beforehand because they’re agreeing it was a mistake and so you have nine justices, nine, just to be clear, all saying that there was an entitlement to an appropriate pre-deprivation hearing, but then meaning before being deported. That to me is the take home here.
Mary McCord: And they order, even in the per curiam, the five part, they order that from this date forward, the government must give notice and an opportunity to be heard to anyone that they intend to deport under the authority of the Alien Enemies Act before they are deported. So that is a positive ruling.
Andrew Weissmann: For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA, that’s the Alien Enemies Act, are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge, which court sort of initially.
Mary McCord: That’s right.
Andrew Weissmann: And that’s the issue of habeas versus the Administrative Procedure Act. The Administrative Procedure Act in a nutshell is sort of there as a catch-all and generally exists to say when no other statute applies, it can come and fill in the interstices. Is that the right word?
Mary McCord: When there’s an agency action and here there was an agency action, right? Like we’re putting all of you on this plane under Alien Enemy Act and we’re deporting you.
Andrew Weissmann: Right, and a habeas is when you are challenging your confinement and you’re saying you’re illegally confined, you bring an action in the location where you’re confined to say, “Release me.” And so that’s sort of the general view. Let’s leave aside for a moment the people who are in El Salvador right now. But if there are people in the class that was certified by Judge Boasberg that are in Texas, the court’s saying they need to proceed by habeas in Texas because that’s where they are.
Mary McCord: Or anywhere else if they haven’t been moved. But just so people understand why we’re saying Texas, what happened in sort of the wee hours of the night and the early morning before these two planes departed is that people who were in detention in various places around the country all got relocated to Texas to that detention center and then that’s where they were deported from, Harlingen, Texas. So that’s saying you would have to go to court in Texas where you were being held, or if you got notice before you got to Texas, you’d have to go to court wherever you were. Of course, none of them had any notice and in fact, one of the issues here is that the proclamation was not even made public until about an hour before the district court Judge Boasberg’s hearing on that Saturday afternoon. So there was no, while they were basically loading them on the planes, so there was no chance.
Andrew Weissmann: There’s another issue which is what do you do with the people who are actually in El Salvador because if they listen to me, they’re just like, well, wait a second, how do you file this in the district where you are because you’re now in a foreign country? And there, there is good law that that may be able to be filed in DC. In other words, that we could end up with those people with a habeas challenge before Judge Boasberg.
Mary McCord: Yes, that’s right.
Andrew Weissmann: But here, let me just make sure people understand this sort of habeas idea because this was something addressed in the Garcia case that we just talked about. Because there, both the district judge and the court of appeals we’re thinking about should this be a habeas where you’re challenging your illegal detention.
And what the district judge and the circuit said is that’s not what this Garcia case is about. He’s challenging his removal.
Mary McCord: That’s right.
Andrew Weissmann: If he were free as a bird in El Salvador and not in a prison, he would still be making this claim because he was illegally deported. And that is what’s the claim before Judge Boasberg.
Mary McCord: And that’s what he said. You’re not challenging your detention. You’re challenging your deportation without due process under the Alien Enemy Act.
Andrew Weissmann: So I actually think on I mean, you know, who cares what I think in terms of the court has ruled. But I mean, I think this issue that where this Supreme Court on this technical issues, should it be a habeas or should it be the AEA? I think they got it wrong. And that’s where if I’m reading this correctly, that’s a 5-4 decision and that Amy Coney Barrett joins with. And so, by the way, thank God for the women.
Mary McCord: I know it’s 5-4 on gender lines.
Andrew Weissmann: This is a gendered decision. And you have four justices, I would say, agreeing with I think getting it right. I won’t say agreeing with me. I’m agreeing with them that the challenge here is not to the illegal detention. There may be grounds to detain these people. The issue was the deportation without notice.
So in any event, this is all sort of very much in the weeds as to the technical issue of like, what’s the ground for and thus where you could file it. I want to make sure everyone’s sort of getting the picture from Mary and me, which is that this is a resounding defeat for the Trump administration that is trying to deport people with no notice, because they obviously have a procedure that they could do this all with notice and it would be fine. They could do it with notice and due process. And there’s a procedure already in place for that. They were saying, no, we’re not going to do that. We’re going to do summary removals. And you have nine justices saying no.
Mary McCord: That’s right.
Andrew Weissmann: There’s no way to put lipstick on that pig, right, to make it not still a pig.
Mary McCord: That’s right. And I think there’s another point, and this goes to your getting in the thorny issue of habeas. I mean, one of the things that the dissenters said is that this is not an issue for the emergency docket. Remember, by the way, the chief justice saying on the immunity decision that they took months and months and months to render that this is not something that should have, you know, there’s been just —
Andrew Weissmann: Good point.
Mary McCord: A truncated and expedited briefing on these important issues. I mean, that was months and months and months. And that’s partly why, you know, the majority under the chief was sending things back from more work to be done in the district court. Here, we’re talking just days and not full briefing.
And one of the issues that the dissenters had is like this isn’t even about the merits of whether the Alien Enemies Act applies here. This is just a fight over the right court. And that is not something that we need to be digging into on our emergency docket here without briefing. In fact, the dissenters say against the backdrop of everything going on leading up to this case, there’s every reason to question the majority’s hurried conclusion that habeas relief supplies the exclusive means to challenge removal under the Alien Enemies Act. At the very least, the question is a thorny one, and this emergency application was not the place to solve it.
The court also, you know, was noting the difficulties of habeas because you’re talking about people potentially in different places around the country, or even if they’re all in Texas, getting notice, you know, how soon before the flight are they going to get that notice? Getting an attorney, getting that attorney to file something in court, getting that court to actually take it up and act on it before they’re deported.
So there’s a lot of things they raise here. And the other thing I think we do have to point out that the dissenters raise because this segues very nicely into what is still remaining in front of Judge Boasberg. And this is something that the per curiam and by the way, per curiam just means that short majority opinion didn’t have a justice’s name assigned to it. It means those five just agreed to those. I think it’s like four paragraphs without anybody putting their name on it. But this issue that is still alive is there was really suspect behavior by the government on the day that this all happened. I mean, we had apparently this proclamation done on a Friday, but not made public until late Saturday afternoon.
We had the judge ruling in the morning and I think, you know, 9:30 or 10 a.m. that the five plaintiffs couldn’t be on flights and saying, I’m going to have a hearing later today. And wouldn’t you think, and this is what Judge Boasberg said at the hearing last week on whether his order had been violated. Wouldn’t you think that the attorney then for the government would have said to his clients, DHS, hey, the judge is having a hearing later today on whether his ruling on the five individuals should apply to a bigger class. So we better hold any operational plans to do any more flights. We better hold that for the judge’s ruling.
But that’s not what happened. Instead, we had two flights leave. And you know, the dissenting justices are saying there’s something that’s very smelly here about this, about the government’s behavior here. And that’s another reason why they were concerned about the majority ignoring that completely.
Andrew Weissmann: So Judge Boasberg still has that pending before him. And although it’s sort of now in an unusual posture because his order, his TRO has now been sort of, not sort of, it’s been vacated, but that doesn’t give you a ground. You can’t sit there and say, I can violate a court order, you know, because ultimately it was technically it should have been done under procedure A versus procedure B, especially given the ground, which is just habeas versus AEA. It’s not like they reached the merits of it and said that Judge Boasberg was wrong to issue a TRO at all under any circumstances.
So he still has the issue that is pending before him, which is a fact finding and legal finding as to whether he thinks there was contempt. And so that is, as we say in the law, sub judice, which is under advisement. And so between now and I think our next podcast show, we will have a decision, I think, from Judge Boasberg, who will decide what he thinks. In other words, he may decide that the government’s right and it has come up with good faith arguments. He may decide that they’re wrong. You know, it was a very rough hearing that he had with the government is putting them through their paces. But, you know, we’ll see what he decides on their legal issues. But that actually still is alive. And we also could see, as we noted, with respect to the people who are in El Salvador, we may very well see those habeas petitions coming back before the D.C. court and having it being assigned to Judge Boasberg.
Mary McCord: As a related case.
Andrew Weissmann: As a related to the case, because obviously he’s been dealing with it.
Mary McCord: He did say at that hearing, it seems to me that there is a fair likelihood that the government acted in bad faith throughout that day. And he’s just trying to figure out, you know, what do I do? What more would I need to determine that? It could be actual declarations or testimony from the people who did not stop those planes. And he’s going to make those decisions.
Andrew Weissmann: Who did it? Who made the decision? Who made the decision? He thinks there was contempt.
Mary McCord: He asked for names.
Andrew Weissmann: Exactly.
Mary McCord: Of who made the decisions, who was told about his order, all of those things. And so that’s what he’s contemplating. And as you say, it’s not good enough to say, I disagree with your order. I’m violating it. Even if ultimately the order is overruled, you don’t have the option to just violate it. Your option is to appeal.
Andrew Weissmann: Right. And so stay tuned for more.
Mary and I are going to definitely be like dogs with bones on that and stay with it.
Mary, is this a good place to do a quick recap in front of another D.C. district judge, Dabney Friedrich, and talk about a decision that she made that also went to the Court of Appeals? And I can give sort of a table setting. And then do you want to talk about sort of what the legal issue and what the circuit did there?
Mary McCord: Sure.
Andrew Weissmann: Okay, so Dabney Friedrich is a district judge. She’s a colleague, obviously, then of Judge Boasberg, a federal judge in D.C. I hate to have to say this, but she was nominated to the bench by Donald Trump. And I say that just so that people aren’t thinking, A, that just because you’re nominated by Donald Trump means you’re going to somehow not follow the law. And she got this case, and it had to do with a defendant named Dan Edwin Wilson. According to the court filings, he was being charged in connection with his conduct at the United States Capitol on January 6, 2021.
And he also was facing separate charges relating to the possession of an unregistered firearm. That is also federal crimes. But those had nothing to do with anything that happened at the Capitol. They were two years earlier in a different time and a different location.
Mary McCord: And there were multiple weapons, by the way, including assault-style rifles.
Andrew Weissmann: And so because he was a single defendant facing these different charges in two different districts, the government joined them together and had him deal with this all in D.C. before Judge Friedrich. So different crimes, different times, but the parties agreed that she would deal with both of these.
Mary McCord: And that was because he was taking a plea, right? So he wanted to do what we call a global plea rather than have to negotiate a plea agreement in one court with one set of prosecutors and then go negotiate an agreement in a different court with a different set of prosecutors. You’re just like, hey, can I enter a global plea that resolves all of my matters in various places in just one place in front of one judge?
Andrew Weissmann: Exactly. And he pled to the Capitol offense that I’m sorry —
Mary McCord: Not a capital.
Andrew Weissmann: Exactly. He pled to an offense at the Capitol, which was a conspiracy to impede or injure federal law enforcement officers on January 6. And he pled to illegally possessing six firearms to, as you said, military style rifles without serial numbers. So significant things.
Mary McCord: Yes.
Andrew Weissmann: Now, here’s the issue, because probably people are going, why are Mary and I so interested in this case? The issue is that, as we all know, the President, President Trump, when he came into office, issued this global pardon for everyone who had been convicted, whether they’d gone to trial or whether they pled guilty. He also had an order with respect to dismissing cases that were pending that hadn’t yet gone to trial.
Mary McCord: But related to the attack on the Capitol on January 6, that’s where he was pardoned.
Andrew Weissmann: Exactly. That’s the key issue, is that the pardon said that the president on January 20 issued a quote, a full, complete and unconditional pardon to some more language, individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.
So the government initially took the position that, of course, that doesn’t relate to the gun crimes here because they happened at a different time and place. They were in 2022 and a different location. And then the government switched its position and said, no, no, no, because the investigation of the offenses at the Capitol led to discovering the firearms violation, the pardon should cover all of his offenses. And that was the issue before Judge Friedrich.
So what did she do? And then what happened on appeal?
Mary McCord: Well, she said, look, the plain language of the pardon does not apply to these Kentucky firearms offenses, Mr. Wilson. They had nothing to do with, they are not related to the attack on the Capitol on January 6. You know, they didn’t occur at the Capitol, which would be related to and they weren’t on January 6 of 2021. She said, all I have to look at is the plain language and plain text of the pardon.
She acknowledged the president’s pardon power is plenary. He can pardon for federal crimes, but just says he didn’t pardon for these crimes under the plain text. She also, I think, very poignantly said the government’s change of position. I am not going to accord deference to it because it is unreasonable. She said from January 20th through February 18th, because hers was not the only case where people who had been convicted of January 6 offenses and other offenses, a bunch of those people started doing this. Hey, hey, hey, I’m pardoned for everything. Let me out of jail. Because what was happening is they were getting pardoned for the January 6 offenses, but they had a different offense that was still keeping them in prison. Right. And these were offenses typically just like what happened in Mr. Wilson’s case. It was when the government in the course of its January 6 investigation executed search warrants at some of these people’s houses. That’s where they found things like, you know, grenades and military style rifles and other things like that, because there was a case involving grenades. They also sometimes found things like child pornography. And I’ll come back to that.
So those people were not getting out of prison. And they started saying, hey, hey, hey, I got pardoned. I should be let out. And the government from January 20th through February 18th, repeatedly and unequivocally, this is Judge Friedrich writing, stated in courtrooms across the country that the plain and unambiguous language of the pardon does not apply to criminal offenses that did not occur at or near the Capitol on January 6.
She then goes on to say, less than two weeks later, however, the government began to change its position. And this is when it said in cases like Mr. Wilson’s and others that we have now. And the explanation was, let me scroll to it, that they had, quote, received further clarity on the intent of the presidential pardon, unquote, after consulting with Department of Justice leadership. Now, as Judge Friedrich says, she pushed the prosecutor on sort of an articulation of the pardons meeting and how it can actually apply beyond things that were in Washington, D.C. on January 6th and did not get satisfactory answers.
So in her view, she said, I’m not affording any deference to that position of the government because it’s unreasonable and it’s contrary to the plain language. And it’s also inconsistent because in cases involving child pornography, exactly, the government did not take the position that that was covered by the pardons. They took inconsistent positions. In one case saying, oh, but there was already some indication of, you know, child solicitation and other child related offenses. So this is different. And in another case, there was no difference at all. The child pornography was found in the search warrant.
And so the judge says, reasonably says, your change in position here is totally unfounded. I’m not crediting it. I’m sticking with the plain language. And, you know, Mr. Wilson, if the president wants to pardon you for these Kentucky Firearms offenses, he can do so. But the pardon you got does not cover those.
Andrew Weissmann: Right. And this is one where if the government wanted to deal with this, why are you doing all of this work in court? The president can just issue a new pardon if he wants to pardon for that.
And one of the hypotheticals from Judge Friedrich was just wonderful, where she said, are you saying that if you did a search warrant on this person’s home related to the January 6th Capitol attack and you found, you know, unbeknownst to you, you found evidence that the person committed a murder unrelated to January 6th, that you’re now going to have the position that that was a pardon? And they basically said, I have to get back to you.
And Judge Friedrich said, her comment was like, that’s just remarkable. You would say that, especially when here, when a stroke of a pen, if that’s what the president intended, he could make it clear. This goes up to the circuit. And in a two to one decision, Judge Friedrich, I am happy to say, is affirmed and saying quite clearly, this is just unrelated in time and place to the stated pardon that was given so that doesn’t cover these firearms. So we really wanted to cover this so that you understood just what the DOJ, the Department of Justice is doing here.
I mean, it’s such bad judgment.
Mary McCord: The position it’s putting the trial attorneys, the ones who have to go into court. I mean, we already talked about the one now in Abrego Garcia, who’s on administrative leave because he was truthful to the court. We’re seeing this example of the lawyer saying, all I can tell you is we’ve received further clarity. I mean, we’re seeing over and over and we don’t have time to get into it today. We’re seeing over and over in other cases, the attorney who’s there in court saying, I can’t answer that question. Or the answer they give is, this is what I’ve been told to say. And they’re being put in really difficult positions.
We’ve mentioned before, we’re going to see people leaving. There already have been a lot of people leaving because they’re being put in this position of having to decide between complying with their ethical responsibilities to the court and following orders from above. And so more to come on that.
Shall we take a break and come back to tariffs?
Andrew Weissmann: Yes, let’s come back to tariffs and you can educate me because here’s an issue which, this is relatively new to me. This is an issue of there are all these tariffs, but there is a legal issue with respect to whether the president has the power under Article 2 to issue these tariffs and what is his legal authority for it and what is the challenge.
So stay tuned. We’ll come right back and talk about that.
(BREAK)
Andrew Weissmann: Welcome back.
So Mary, tariffs. There is a new lawsuit in federal court in the Northern District of Florida that is brought by the New Civil Liberties Alliance. What are they alleging with respect to the tariffs that the president has issued? And I think they’re specifically focused on the China tariffs, but it would be of general applicability.
But what is this group and then what’s their legal challenge?
Mary McCord: So this is a non-profit group that has traditionally taken up conservative causes. And in fact, one of the lead lawyers on this I went to law school with, I know him quite well, or I did back in the day.
So this is a lawsuit brought on behalf of an American stationary company who’s impacted by the tariffs because the supplies they need for their work here in the United States come from China. And so the tariffs on China have hit them.
And so they’re challenging this on multiple grounds. One is that the tariffs are what they call ultra vires, meaning outside of law, because they were imposed under the president’s authority under the International Emergency Economic Powers Act, also known as IEPA.
And that this is a statutory authority for the president to engage in certain responses to emergencies. Really, it’s used usually in areas of national security. And their view is that IEPA, for all the things it might allow the president to do, it does not allow the president to impose tariffs like this. Tariffs are something that Congress has the authority to impose.
And Congress, although it can delegate some of its authorities to the president, it can’t delegate anything that is this sweeping because that would raise questions about things like the major questions doctrine. And the major questions doctrine is something that got kind of popular over the last few years and normally was something raised, in fact, by conservative lawyers and conservative public interest groups to challenge things that the Biden administration was doing, things such as broad student loan forgiveness.
The argument there was even if Congress has delegated some authority to the president, in that case, it was under the HEROES Act to respond to COVID, that the Congress surely didn’t delegate to the president something as major, raising such a major question as broad student loan forgiveness. Here, the tables are turned and the issue is, did Congress through what powers it’s had to delegate powers to the president under IEPA, surely that didn’t include anything so major and really unrelated to national security as these tariffs.
Andrew Weissmann: So it’s sort of a doctrine of, you know, if the Congress is going to do something this big, it needs to be super clear that it was delegating this. So under a major question, the court’s saying, we’re not going to just presume that kind of power without a sort of clear delegation. And as you said, it’s usually been used as a weapon against sort of democratic presidents doing things. But here it’s being used by this group to say that it’s been abused by President Trump.
In many ways, I thought their complaint sort of reads well. There’s sort of a lot of embedded legal issues, but they’re basically saying, you know, this is not some emergency. This is just a tax on Americans. And if it’s really a tax on Americans and not responding to some emergency, then guess who has the power to tax?
Mary McCord: Congress.
Andrew Weissmann: And so once again, this is where you’re seeing private lawsuits dealing with things that you think Congress would be a little bit more up in arms about their own institutional concerns and power. But that is sort of, you know, we’ve talked about Youngstown, we’ve talked about how much Congress has really not stood up for its own power and authorities vis-a-vis the executive branch and sort of the original framing construct of three equal branches of government is something that is really gone by the wayside. And this is an example of that because it’s not Congress who is part of this lawsuit. It is a private party saying that this is violating that separation of powers for one of the reasons being exactly what you said.
I do find it very interesting that it’s this group. It puts an interesting twist on the litigation.
Mary McCord: There’s other commentators, though, conservative commentators also writing about this. In fact, Steve Calabrese, Professor Calabrese, I read over the weekend writing that there should be a nationwide injunction granted. And this is right. We’ve been talking about nationwide injunctions, about how these are criticized. Frankly, they’re criticized by both sides where you stand, but there should be a nationwide injunction because there is no emergency here. And as he points out in his post on Reason.com, I think is where I read this. He points out that this is about trying to sort of restore the manufacturing base in the United States, which has been suffering for decades now. And it’s not some emergency all of the sudden that you can use IEPA in order to try to remedy through these tariffs. And this violates the separation of powers. This is a matter for Congress. And therefore, there should be a nationwide injunction on it.
One of the other interesting things here, we talked about major questions doctrine. That’s this doctrine, as we’ve been discussing, that even if Congress could delegate certain authority to the president, it has to be clear, right, when it’s on such a major issue. It also harkens back to something called the non-delegation doctrine, which was used by the Supreme Court back in the 1930s, back during the New Deal, when FDR, President Roosevelt was making sweeping sort of policy enactments to build infrastructure and on and on and on. So many things, people who studied the New Deal. And this is something at the time was used occasionally to say, wait a minute, even if Congress delegated certain powers, it can’t delegate away sort of all of its constitutional powers. Those are things that are part of Article One of the Constitution. They’re given to Congress and they can’t be delegated.
That then has kind of gone out of favor, the use of non-delegation doctrine really since the late 1930s in order to restrain the president. And it’s been interpreted sort of much more liberally now to as long as the Congress has provided some intelligible principles by which its delegation, you know, is constrained and by which a president who’s trying to act under that delegation would have these principles to follow, that it might be okay.
But this tariff situation sort of brings back to the fore the idea about, hmm, has the delegation, if there’s delegation under IEPA, and I think that’s a big if, to issue tariffs as opposed to take other types of sanctions and other kinds of things that presidents regularly do under IEPA, if there’s that delegation, maybe that would violate the non-delegation doctrine.
So we’re getting very heady into some of these separation of powers issues. But I think we’ll be following this because this is not going to be the last of what we’re seeing about major questions or non-delegation doctrine, particularly, I think, in this tariff area.
Andrew Weissmann: Absolutely. And it’s got such an interesting intersection of the legal principles with politics, small p, and whether the courts will essentially bail out the Trump administration doing tariffs that are extremely unpopular.
Mary McCord: And unprincipled. I mean, the calculation is like, what, you know, divide the something, something by two. It’s like it wasn’t even principled.
Andrew Weissmann: Yes. So it’s a fascinating overlap of those two things. So much more to come. Mary, thanks so much. I’m so glad we actually got to all of this. And I’m glad we got the shout out to the pardon issue before Judge Friedrich and her, I thought, really terrific decision and the fact that she was affirmed. There’s a lot, I think we sort of flagged some issues for people to stay tuned to.
Mary McCord: We’re going to put something else in the show notes that we did not have time to cover. I published an op-ed in The Washington Post last night.
Andrew Weissmann: It’s terrific.
Mary McCord: Thank you. That goes back to this issues we have discussed before about the attacks on law firms. And my point with this post was to show that one of the reasons besides the fact that the attacks on law firms, the executive orders blacklisting law firms, besides the fact that they’re unconstitutional, one of the reasons that three different judges almost immediately in record time for litigation issued injunctions barring the key provisions of those orders is because judges recognize what this kind of blacklisting does to the adversarial system, the system by which lawyers on both sides of an issue present facts and present legal arguments to the court and the court can make a decision.
That is core to due process. We’ve talked a lot about due process today, but to make that work, you’ve got to have lawyers on both sides of the issues. Donald Trump certainly benefited by having lawyers representing him in all of the civil and criminal cases against him. And he is now really trying to deprive other people of that same opportunity by intimidating law firms into not taking up issues and causes and representing people with whom he disagrees.
So that’ll be in the show notes too.
Andrew Weissmann: So thanks so much for listening. And remember, you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC Originals ad free. You’ll also get subscriber only bonus content.
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This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Mark Yoshizumi and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio.
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