On Monday, after Kilmar Abrego Garcia was taken into ICE custody, Judge Paula Xinis temporarily barred the Trump administration from deporting him to Uganda. Mary and Andrew begin here, reminding listeners that the origin of his case stems from a mistake made by our government. Next, they detail the questionable nature of the FBI raid on former National Security Advisor John Bolton’s home and office before diving into some 30+ letters sent by Attorney General Pam Bondi to blue-leaning jurisdictions, with the aim of ending their sanctuary policies. Last up, Mary and Andrew drill down on Trump’s latest executive order related to a rapidly deployable National Guard unit, as he sharpens threats to send troops into more cities.
Further reading: Trump’s Executive Order: ADDITIONAL MEASURES TO ADDRESS THE CRIME EMERGENCY IN THE DISTRICT OF COLUMBIA
Garrett Graff’s piece: America Tips Into Fascism
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hi and welcome back to “Main Justice.” It is Tuesday morning, August 26. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi Mary.
Mary McCord: Good morning, Andrew. You always say that in such a way it sounds like, oh, maybe it’s going to be somebody different today. But it’s not. It’s me.
Andrew Weissmann: So, just before going on, we were putting stuff together and we have all of our screens up. I was actually thinking, this is like what Mary and I do before an oral argument. I mean, there’s so much today that like I’ve got my notepad in front of me where I’ve scribbled down all sorts of points that I want to make and things that we need to talk about. And then I have like all these screens up and it’s like I’ve run out of screens.
Mary McCord: I have windows on top of windows on top of windows and now I know I’ll screw it up midway through the podcast. But like I try. I need three or four more screens is what I need. Or the executive branch should quit doing stuff and then we could have like one screen and talk about one issue in depth. Wouldn’t that be something?
Andrew Weissmann: Yes, a moratorium on the onslaught, which is hard to see as not being intentional. So, Mary, what is on our dance card today?
Mary McCord: Yes, first theme, Justice Department abuses. I mean, this will be no big surprise, but there’s so much that’s happened in this week. We’ll start with the latest in the case of Kilmar Abrego Garcia, who almost immediately, upon his release from criminal custody, once he got to Baltimore was taken into ICE custody. We’ll talk about that. We’ll talk about the FBI search of John Bolton’s home and office last Friday. That was a huge, huge news day about that. John Bolton, of course, being one of the president’s political enemies. We’ll talk about the Justice Department, under the signature of Attorney General Pam Bondi, trying to coerce so-called sanctuary cities into dropping those policies and voluntarily, but it’s hard to say voluntarily when it’s so coercive, cooperating more with ICE and federal immigration enforcement and some of the ethical questions raised by those letters. Kind of like some of the ethical questions raised by the plea offer made to Abrego Garcia that we will start with today.
We’ll talk a little bit about the takeaways from the transcripts of Ghislaine Maxwell’s interview, which were also released last Friday. Friday was huge, huge day. I actually did three different TV appearances and I almost never do that. I know you do that a lot, Andrew, but I usually don’t. So that was unusual for me.
Andrew Weissmann: I’m like a dog with a bone.
Mary McCord: Yes. And then, of course, we will talk about some of the executive orders that were signed yesterday by Donald Trump that have to do with additional readiness of National Guards to go to other places. And maybe we’ll get to it today. Maybe we’ll talk about it more at another time. But he is also now attacking cities that do not impose cash bail for people who can’t afford cash bail. And so, maybe we’ll get to that. But if not, we definitely should talk about that another time.
Andrew Weissmann: I know.
Mary McCord: An issue near and dear to my heart because it’s important for there to be fairness and due process and everyone to have an equal opportunity to defend themselves. And when you are detained solely because you are too poor to pay, that is not okay.
Andrew Weissmann: Okay. So why don’t we start by talking about Mr. Abrego Garcia. People remember that he was extracted against a court order and sent to El Salvador, where he was imprisoned. And I’m deliberately using the term extracted because he was given no hearing and there had been a prior court order that the one place he could not go was El Salvador because of the court having found that there was a legitimate fear of retribution and he was given essentially asylum for purposes of not being deported back to there.
The government was free to, and as it conceded, it was free to actually have made a motion to try and undo that. They didn’t do that. They just extracted him. That led, and other cases led, to the Supreme Court saying 9-0, due process violation, that you have to give people an opportunity to be heard.
Mary McCord: Before they are extracted.
Andrew Weissmann: Yes, exactly.
Mary McCord: And in his case, they said you must facilitate his release.
Andrew Weissmann: Exactly. And then Judge Xinis, who has the case in Maryland, had said, you know, you have to facilitate his release and you have to essentially put him back in the position he was in. That then led to what everyone will remember that this was a big cause selim (ph) because it raised the whole issue about compliance with the law and the rule of law with an individual you could look at. And so, he was embodying all of those things. He eventually was brought back with no notice to actually his defense counsel, and he was brought back having been indicted. And people will recall that a magistrate judge and then the district judge in the case where he had been criminally charged found that there was insufficient evidence to hold him. o he was released on bail. The criminal case is still pending.
But two separate judges, magistrate judge and district judge, said that the evidence was so thin about either his danger to the community which, of course, we’d been hearing from Pam Bondi and others that he was a terrorist. In fact, one of the lead lawyers on the case before Judge Xinis was removed because he refused to say he was a terrorist without evidence being presented to him to support that allegation. So anyway, he was released from the criminal case, in terms of detention. The criminal case was ongoing. But so was the case before Judge Xinis in Maryland. So you have a civil case in Maryland before Judge Xinis. That’s what we’re going to really talk about today. And then there’s this criminal case which was sort of going along where he was charged with essentially transporting —
Mary McCord: Two counts.
Andrew Weissmann: Yep, exactly.
Mary McCord: Transporting undocumented people and conspiracy to transport. So basically they were accusing him of being a human smuggler.
Andrew Weissmann: Exactly. And they, the government, made an offer to Mr. Abrego Garcia saying that if —
Mary McCord: Last Thursday night because he was due to be released on Friday.
Andrew Weissmann: And they say, if you plead guilty to this, we will deport you —
Mary McCord: Both counts, both counts.
Andrew Weissmann: — to Costa Rica. And Mr. Abrego Garcia was willing to go to Costa Rica, but he wasn’t willing to plead guilty. And so, I want to make sure everyone understands, the government was willing, if they were going to deport him, and in this case I can actually say the word deport as opposed to extract.
Mary McCord: That’s right.
Andrew Weissmann: They were going to deport him, and they were saying, we can do it to Costa Rica, but the condition is you have to plead guilty.
Mary McCord: And they would only deport him after serving any sentence he might get, too. I think that’s an important part of that.
Andrew Weissmann: And he says no. And what happens then, Mary?
Mary McCord: Yes, he says, I would accept going to Costa Rica, but I’m not going to plead guilty to these things. And Costa Rica, by the way, had sent a letter assuring Mr. Abrego Garcia and the government that it would not detain him, it would not send him to El Salvador, it would treat him like a refugee in the country, right?
And then when he said no, the government, within very, very short order, and I will just read right from the email that was sent on Friday at 4.01 p.m. from the Department of Homeland Security, Principal Legal Advisor to Mr. Abrego Garcia’s counsel, which says, “Please let this email serve as notice that DHS may remove your client Kilmar Armando Abrego Garcia to Uganda no earlier than 72 hours from now, absent weekends.” And this is why, essentially, the parties ended up back before Judge Xinis yesterday, because this is a problem.
Andrew Weissmann: So when Mr. Abrego Garcia was told, as part of his bail conditions, that he had to report to a part of ICE, the Department of Homeland Security.
Mary McCord: Which was another letter to his attorney at 4 o’clock p.m., so two separate emails, one minute apart.
Andrew Weissmann: So just remember, they’ve now switched from Costa Rica to Uganda. That’s step one. Second, when he reports, as part of his bail conditions, to ICE for just a check-in, he is arrested and detained, and he is currently detained. So I just want to make sure people understand, regardless of the law, just think about what the government is doing here. Because you’re not pleading guilty, we are going to remove you to some godforsaken country you know nothing about, where, as Judge Xinis says, Uganda hasn’t given any of the assurances that Mary has talked about. Uganda has not said that you won’t be jailed. Uganda has not said that you won’t be extradited or what’s called, actually, refouled, which is a fancy term for being sent from Uganda back to El Salvador, the country you can’t go to.
So none of those assurances were made, and it just looks like, and Abrego Garcia has made a motion saying, you are punishing me for not pleading guilty. And so, this is entirely coercive. I mean, it is sort of unbelievable. And then one thing I found when I was reading about what Judge Xinis did yesterday, because she stayed everything for this week saying, I want a hearing, and I want to hear about all of the legal issues and factual issues, is that at some point, Judge Xinis says to the government lawyer, “Is it sufficient that I have ordered this orally, that you cannot do this, or do I need to put it in writing?”
Mary McCord: That you can’t send him to Uganda without us getting a briefing schedule and having a hearing.
Andrew Weissmann: Yes, right.
Mary McCord: Is it sufficient? I thought that was remarkable, too.
Andrew Weissmann: I mean, it’s unbelievable to me. And the reason that had to be done is because of what happened for Judge Boasberg, where one of the arguments was, well, we didn’t think that if it was oral that we had to do it because he hadn’t been in writing. And that’s why you have these judges. I mean, Mary, you and I have been in government so long, could you imagine the judges I practiced in front of would have my head if I said that?
Mary McCord: Yes. To his credit, he said that is sufficient.
Andrew Weissmann: Yes.
Mary McCord: Yes. And, you know, in the case before Judge Boasberg, the government tried to argue that, oh, your written order then conflicted with your oral order and made these other sort of excuses for why they didn’t abide by it. But that is clearly what Judge Xinis had in mind when she said, is this good enough? And he said, yes. I think she had also said, can you assure me that your clients, meaning the Department of Homeland Security, will not deport him before we get a chance to have a hearing? And he said, I don’t have that. And that’s when she said, well, okay, I’m ordering it. Right?
Andrew Weissmann: Exactly.
Mary McCord: I’m ordering that you shall not remove him to Uganda. We’re going to have a briefing schedule and a hearing probably on Friday because Mr. Abrego Garcia has now said he has a credible fear of going to Uganda where he does not have any assurances that he would not be just refouled to sent back to El Salvador to seek out or otherwise subjected to abuses in Uganda.
Andrew Weissmann: Exactly.
Mary McCord: So that’s the due process that she wants to make sure gets provided. She’s asked the parties today. In fact, I checked the docket right before we started recording to see if they’d filed anything yet because she did ask them to file a joint briefing schedule motion by 10 o’clock today, and so that will be made public at some point today. I think it’s worth pausing for a minute, too, on this, to reflect on the fact that this is all because of a mistake that the government made. Because he had an order that he couldn’t be sent to El Salvador, he never should have been sent there.
A Department of Justice attorney went into court and told the court the government had made a mistake. That attorney has now lost his job. He is the whistleblower we have talked about who has revealed through emails and texts everything he did to try to work with his clients, Department of Justice, Department of Homeland Security, to get Mr. Abrego Garcia back. And ultimately, he lost his job for being candid with the court, and the government has twisted itself into pretzels to make this man into a terrorist to do whatever it can, criminal charges, ICE detention, deportation to Uganda, rather than just admit their mistake and try to rectify it.
This could have all been over long, long ago.
Andrew Weissmann: To your point, this is so funny, I guess we’ve been doing this together for a while, because let me just point something out to add insult to injury in terms of what’s going on. Let me read the tweet that was released by Homeland Security from our government, and I am going to read it verbatim. “DHS is thrilled that this MS-13 gang member, human trafficker, wife-beater, and child predator is being processed for removal to Uganda!” unquote. That is our government saying that about somebody where none of that has been proved.
Mary McCord: Much has not even been charged.
Andrew Weissmann: Much has not been charged. Much has been rejected in terms of the bail application. Remember, if all of that was true, there’s substantial reason to think —
Mary McCord: He would not have gotten bail. He’d be detained.
Andrew Weissmann: Right, exactly. You remember what the whole contretemps about Jim Comey saying things about Hillary Clinton when she hadn’t been charged at all? This happens now routinely. It’s normalized. This is beyond shocking that this is how our government behaves. And we wanted to start with Mr. Abrego Garcia so that people do not forget that, one, this is happening to a human being in our country who is not being treated fairly, who is not receiving due process. Sometimes it’s really helpful when things are happening to hundreds and thousands of people to have an individual that you can focus on, and both in terms of his own story but also understanding what this country is doing to him and the standards and the cruelty that is being inflicted.
Mary McCord: The inhumane treatment, it’s like there’s no dignity at all. And, you know, we’ve talked many times before, both of us in our long careers as prosecutors, you don’t go out and publicly malign defendants, particularly with things that you aren’t even prepared to prove up and things that will make it impossible to get a fair trial, right? If everyone thinks that, you know, he’s a terrorist and an MS-13 member and a serial domestic abuser and a, you know, a child sex trafficker, like that makes it hard to get a fair trial. And that is part of the reason why, ethically, prosecutors don’t do that. And I realized that tweet was from the Department of Homeland Security, but it doesn’t make any difference.
Andrew Weissmann: Does it not?
Mary McCord: It’s the government.
Andrew Weissmann: It’s the government, right.
Mary McCord: And we’ve heard similar things from the Attorney General.
Andrew Weissmann: Of course.
Mary McCord: This and, in particular, what happened with the coercion with respect to pleading guilty in order to go to Costa Rica instead of Uganda, are all the basis of a motion to actually dismiss those charges, those criminal charges on the grounds of vindictive and selective prosecution. We’ve talked about both of those before, but here, in particular, we’re talking about the exercise of a constitutional right. My right to go to trial, that is a constitutional right here. And when you are penalized, treated more harshly by the government because of the exercise of that right, that is something that can lead to the dismissal of an indictment on grounds of vindictive prosecution.
And of course, that’s just the most recent part, the motion originally was filed even before the developments on Friday, based on the entire situation, right, of bringing him back to face charges that had not been ever even investigated for two and a half years. And that, by the way, did cause the chief of the criminal division in the U.S. Attorney’s Office where those charges were brought to resign.
Andrew Weissmann: Perfect segue to John Bolton.
Mary McCord: Yes.
Andrew Weissmann: So people remember that John Bolton served in the Trump administration in a national security role, senior national security advisor. He left under bad terms in the sense that he then wrote about and was very critical of the president. In terms of the cruelty part, just to relate it to what we were just talking about, John Bolton and others were the subject of a death threat from Iran in connection with what the United States had done there. Obviously, not in any way endorsing the death threat. I mean, it’s outrageous. And John Bolton had security. That security for John Bolton was withdrawn by Donald Trump.
Let’s just step back for a moment, because that is something that is lawful, but outrageous. I mean, lawful and cruel. He can withdraw that security. Who does that? Who does that? It is certainly increasing the idea of the fear and intimidation and chilling to never speak out against the president. And so, that’s a backdrop.
There also is a backdrop to when John Bolton wrote his book. It had been cleared by the career person in charge of doing preclearance review. That’s a standard process. I had to go through it. John Bolton, everyone has to go through that. And he did it. It got cleared. And then people who are politicals said, no, no, no. We’re going to redo it.
Mary McCord: People in the White House.
Andrew Weissmann: Exactly. Directly in the White House and said, no, no, no. This, in fact, has classified information. Even though Ellen Knight, who was the career person, said, no, I’ve cleared it. I’ve gone through everything. We’ve made all the changes. It’s done. That was another form of retribution of, we don’t want this out there.
And then, I’d say the third thing that’s very similar to what we just talked about is that there was the search that was done of his home and his office. And I’m going to turn it over to you to talk about that, Mary. But I just want to flag that after the search, people then went on air and gave information up to and including the vice president of the United States talking about the fact that John Bolton is now under criminal investigation, which you’re not supposed to do. And nor, by the way, the norm, not only are you not supposed to do that, but it also post-Watergate, the idea that the White House knows all about it and is involved and is talking about whether he’s guilty or not guilty and what the investigation is going to do. The norm, and for normal Republican and Democratic administrations is that is separated, the White House would be hands off.
So let’s just go back to there were these searches that were done on Friday, the day when sort of everything was going on.
Mary McCord: Yes. Yes. And this is one reason why we kind of have to, we can’t jump to conclusions about whether there is any there there, in terms of criminal activity, regardless if there is or not. I mean, the timing is certainly suspect. I mean, John Bolton had just recently been criticizing the president for his efforts to negotiate with President Putin over Ukraine. I mean, just in the last week and then boom, immediately we have these searches. But to be clear, we’re talking about search warrants in both Maryland, where his residence is, and in the District of Columbia, where his office is, that had to be signed by a federal magistrate judge or federal judge. That means that judge or each of those two separate judges had to find that the affidavit sworn to by a law enforcement agent here, likely it was the FBI.
We haven’t seen it yet and won’t see it for some time, probably, if ever. That affidavit would have to show and the judge would have to conclude that there was probable cause to believe not only that a crime had been committed, but that evidence of a crime would be found in the location to be searched. And that has to be probable cause based on information that is current, not, oh, a source was in the house six years ago and saw a classified document there. That wouldn’t cut it, even if the evidence was as specific as this. So that causes those of us, of course, who have prosecuted or been part of investigations to think, okay, there must have been something alleged there that caused two judges to sign these warrants. We don’t know yet what it is, but again, the timing just raises a lot of concerns, as does the fact that we have seen so much irregularity.
I mean, for me to even enter my head, for it to even enter my head that a law enforcement agent could potentially have been less than truthful in affidavit, or that others might have done something to provide information to a law enforcement agent, a source here or abroad, potentially, to cause that law enforcement agent to submit evidence of probable cause, that might not be 100 percent credible. I hate to even think that’s a possibility, but we’re also talking about government actors who have lied about people. They’ve lied in court to judges about facts. And I’m not saying that happened at all, but I never would have even thought that in the past, right?
Andrew Weissmann: Yes.
Mary McCord: And now you sit there and you think, hmm, there’s something fishy here.
Andrew Weissmann: But that’s because the presumption of regularity is something they’ve squandered.
Mary McCord: That’s right.
Andrew Weissmann: And I think what you’re hearing from both of us, when Mary and I were in the national security world, and we, obviously, take, if there’s a violation, if there was some sort of truly classified information that was knowingly and intentionally taken or disseminated, that could be really serious. So neither of us is sitting there going, oh, well, we don’t care what the allegations are. It’s just right now, we don’t know what they are, and there’s no reason and no presumption of thinking there’s something there.
Now, it is true, of course, two federal judges have, or magistrate judges have approved this, but we don’t know whether it was truthful and accurate and honest. And the normal sort of presumption of that is one that we are just not, I’m not willing, I know, Mary, we’re just not willing to say, well, there must be something there. Not only because there was some probable cause, but that it was just to go forward.
Mary McCord: That’s right.
Andrew Weissmann: Just remember, when you’re in government, there are two big decisions. Is there a crime there that you can prove? And should you go forward? And it’s the second that is actually the one where you need the most judgment.
Mary McCord: That’s right.
And you know, you mentioned before that then high-level government actors, including the vice president, spoke publicly about it. Now, the president himself said, I didn’t know this about this in advance, but I’ll be brief today, I’m sure. This was on Friday. The vice president said something along the lines of, we’ll see if there’s a crime.
(Begin Clip)
Vice President JD Vance: If there’s no crime here, we’re not going to prosecute it. If there is a crime here, of course, Ambassador Bolton will get his day in court. That’s how it should be. But again, our focus here is on, did he break the law? Did he commit crimes against the American people? If so, then he deserves to be prosecuted.
(End Clip)
Mary McCord: He was using the “we.” He was suggesting, if there’s a crime, remember that affidavit had to have probable cause of a crime and that evidence of the crime would be found in the location to be searched. So to sort of act like, I mean, those words sounded very much like, this is a fishing expedition.
Andrew Weissmann: It sounds like.
Mary McCord: You don’t get to do a search warrant of people’s homes and offices for a fishing expedition. That is not the law. And the “we,” just again, ever since Watergate, it has been important to both the White House and the Department of Justice that the American people do not perceive that the Department of Justice is being used for political purposes because it wields that vast power of criminal investigation and prosecution. And that’s why ever since Watergate, under administrations of both parties, the attorney general has issued a policy and the White House counsel has issued a policy that you will not communicate about ongoing investigations, criminal investigations, with a few narrow exceptions between prosecutors and White House officials.
I mean, you want that to be that separation so that a White House could always say, this was up to the Department of Justice. I am learning about it after they’ve finished their investigation. That’s been important so people don’t think it’s being used for political purposes because, obviously, Watergate, that was very much the way it appeared to have been used.
This administration just doesn’t care about that. The position is Article 2 of the Constitution gives the president authority of the executive branch, that includes the Department of Justice. I can direct them to do anything I want as a matter of the Constitution. That is right as a matter of sort of good policy and good government. That is about as wrong as you could possibly be.
Andrew Weissmann: Shameless.
So speaking of shameless, why don’t we take a break and come back and talk about the letters that Pam Bondi has issued to numerous states and localities and just something that we have called sanctuary cities. They’re pretty much what I would say, this is a legal term, a doozey. So let’s take a break and come back and we’ll dig into that.
Mary McCord: Sounds great.
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(Break)
Andrew Weissmann: Welcome back. Mary, what has Pam Bondi been up to? What are these letters? What are they purporting to say? Who got them? And most importantly, what’s your take on them?
Mary McCord: So folks will know that Pam Bondi, as well as others within the government, have really been on a tear since pretty much day one of this administration trying to go after so-called sanctuary cities. And we’ve talked about what a sanctuary city is. It is a city or a state, we have states as well, that have a policy that says we’re not going to voluntarily cooperate with federal immigration enforcement beyond what is required by federal law.
In other words, we’ll do everything that we have to do, but we’re not going to go past that because we think that the good policies for the safety of our community, so that our community members feel like they can report crimes to the police without being fearful that the police is going to be checking on their citizenship and reporting them to ICE so that people will show up as witnesses at trials, so people will sit on juries so that I can just actually, as a law enforcement person in my community, keep my community safe.
We’re only going to do what we have to do. We’re not going to voluntarily be like deputized ICE agents, and we are certainly not going to hold people in our jails beyond when there is a criminal legal purpose to hold them. So when we don’t have any authority to hold them, we’re not going to hold them just because ICE says, oh, I have a civil administrative warrant that this person might be undocumented. Would you detain them for another up to two full days? They’re like, no, we’re not going to do that. We could be sued for that. That’s a Fourth Amendment violation. And in fact, some places have been sued for that. So those are what the policies are.
Attorney General Bondi and others have been trying everything they can do to try to coerce cities to get rid of these policies, including suing a bunch of them. They brought civil cases against Los Angeles, New York State, Colorado, Illinois, Rochester, New York, and a bunch of cities in New Jersey, the city of Chicago, Cook County, and the state of Illinois. But that’s not enough here. So last week, Attorney General Bondi sent letters to the cities and states on the list that they have compiled of so-called sanctuary cities, essentially threatening these cities and the officials with criminal investigations and prosecutions or additional civil suits if they do not, well, I’ll just read it. “Please submit a response to this letter that confirms your commitment to complying with federal law and identifies the immediate initiatives you are taking to eliminate laws, policies, and practices that impede federal immigration enforcement.” And this is after she has says, “You are notified your jurisdiction has been identified as one that engages in sanctuary policies and practices that thwart federal immigration enforcement to the detriment of the interests of the United States. This ends now.”
I mean, also just the tone.
Andrew Weissmann: This ends now?
Mary McCord: This ends now. That’s a full sentence with a period at the end. And it’s like, who do you think you’re talking to? Like, this is the way she’s talking to mayors and governors in these letters.
Andrew Weissmann: And just to be clear, what she is saying, in my view, is not lawful. It is one thing to say that we are asking for your cooperation. It is another to say that you are not complying with a federal mandate, but to say that you are not following a federal policy and supporting our policy, and that we want you to do this, and if you don’t do this, we’re going to sanction you, all of that is not lawful. The states do not have to do that. They are not required to be little mini-me’s of the federal government in this area. And one of the things that she says is, we’ve been tasked by the President of the United States to look for ways to essentially punish you.
Mary McCord: That’s right.
Andrew Weissmann: If you do this, and by the way, there’s a whole list of the so-called sanctuary cities. You can go to the Department of Justice website and see the list of their all sort of blue states and blue cities. And what has happened is, there was already, in April, a judge, Judge Orrick, in California, in San Francisco, who had enjoined this idea of saying, you cannot get a grant, an unrelated grant, because you are not doing something to help our immigration policies, our federal immigration policies. And he says, that is a violation and enjoined it.
Mary McCord: Because it was Congress who appropriated money for these grants, and it’s up to Congress to put any conditions on them. And this goes back to Trump one. A bunch of this litigation happened in Trump one, and they lost on many of these cases. And he’s like, we’ve already decided this back in Trump one.
Andrew Weissmann: So he has expanded that.
Mary McCord: Yes.
Andrew Weissmann: So basically, the cities and states that are involved are like, go back to Judge Orrick going like, they’re at it again. And he’s like, and we’re expanding. So there’s an injunction out of the San Francisco District Court. Part of that is on appeal.
Mary McCord: The government also has lost, you know, they brought up, those were cases, oops, sorry about that. That’s my dog. I’m the only one here today.
Andrew Weissmann: I think your dog is very excited about this issue.
Mary McCord: She can hear my voice rising.
Andrew Weissmann: So Mary, who was it who rudely interrupted us?
Mary McCord: That was Gigi. She just doesn’t really like what the Attorney General is doing or trying to do to these sanctuary cities. And we may have to tolerate this a little bit more because I don’t have anybody here to keep her occupied or to hush her up.
Andrew Weissmann: Well, can I just say, I think that is an entirely appropriate response.
Mary McCord: I agree. Gigi, we agree.
So in addition to Judge Orrick ruling already on conditioning grant funding and other federal funding on, you know, voluntarily or not so voluntarily cooperating with federal immigration enforcement, in one of the numerous civil cases that DOJ brought against so-called sanctuary cities and states to try to compel them to get rid of their policies or to get those policies enjoined, we had a federal judge rule against the United States government dismissing the case in its entirety out of Illinois in the case against Chicago, Illinois, and Cook County.
So what we’re having here is we have the Department of Justice AG essentially threatening other sanctuary cities, where she knows the government has been losing in these cases. But worse than that, and this is where the responses of the mayors have been so important, is that she made a mistake here, and she sent this letter to a number of mayors who she had already sued. So there’s one thing in that all of us who have taken the bar and are subject to the rules of professional responsibility know, which is that when you are in litigation with someone, you may not directly communicate with a represented party in that litigation.
And what we saw the U.S. Attorney General do here is directly write to the mayors of these sanctuary cities, including mayors she has already sued. And it is about the same subject matter of the litigation, that is a violation of rules of professional responsibility. It’s also a violation to basically threaten sort of criminal prosecutions when you are in already civil litigation with somebody. And these are things that some of these mayors pointed out in their letters, others pointed out in their responsive letters, others pointed out that, in fact, their policies do not violate any federal law. And we’re seeing them stand firm against this real overreaching.
Okay, let’s move on to the transcripts that were released on Friday of Deputy Attorney General Todd Blanche’s two days worth of interview with Ghislaine Maxwell. Important revelations. Andrew, tell us, please.
Andrew Weissmann: Yes, two things happened. The Department of Justice complied in part, belatedly, with a congressional subpoena and turned documents over to Congress to sum, and they also released these two days of transcripts. What they did not do is the government has said that they have approximately 300, wait for it, gigabytes of information. And as I think I mentioned, that means a lot.
Mary McCord: Yes, yes, that’s gigantic.
Andrew Weissmann: Right. So that to me, every time a little piece comes out, I’m like, it is just a reminder that they have not released everything. With appropriate redactions, but they have not released everything. So we have seen these transcripts from two days. Important to remember, as you mentioned, this is something that was done by the Deputy Attorney General himself, which is already incredibly rare. There doesn’t appear to be anybody, certainly no prosecutor, career prosecutor who was on the case was present. It doesn’t appear that any career FBI agent was present who was on the case.
Mary McCord: Who had been on the case.
Andrew Weissmann: Exactly. There was an FBI agent there, but it doesn’t appear they were on the case. And two things to remember about Ghislaine Maxwell. One, as Judge Engelmayer said, and we covered, she has lied to victims to get them to be victims, and to be victimized by Jeffrey Epstein and her, that she lied to the court, she lied to the probation department, and she’s lied in civil cases. That’s the court saying that. So it doesn’t mean that she’s lying now, but it is important to remember, in the same way when we put on cooperating witnesses, you have to remember them warts and all. So she has a history of perjury and making false statements to the government.
Second, she obviously has a motive to curry favor. And she actually has already received a benefit for this, which is she was moved from a harsher conditions into a camp. She also took innumerable opportunities to compliment and say positive things about the president, and yes, which is, I can understand why she would do that, because she is, I would be hoping if I got a 20-year sentence for, not just better conditions of confinement, but less confinement up to and including a pardon or clemency.
And so, what I thought was remarkable, given all of those circumstances, was two things. One, I was struck by the questioning by Todd Blanche just didn’t have any of the sort of indicia of objectivity that you would expect of pushing back on things. So let me give you an example. When she’s sort of saying, at times she didn’t really offer a lot, because she would say, but I didn’t see that, and I wouldn’t witness this, or I didn’t see President Trump doing X, Y, and Z or–
Mary McCord: Anything inappropriate, I think, was her word.
Andrew Weissmann: Right, exactly. And so, there was a lot of, I wasn’t a percipient witness. Well, that doesn’t really tell you a lot anyway, but even if she’s going out of her way to say, I didn’t see anything inappropriate, God knows what inappropriate means, because you would think you would have a cross-examination that says, well, you didn’t think you were doing anything inappropriate, or Jeffrey Epstein was doing anything appropriate. That would be a natural thing for someone to follow up.
So those sort of natural things, I was struck that Todd Blanche was, I thought, had not made the transition from being Donald Trump’s personal attorney to his current position, shocking. I’m sure the prosecutors who are on the case, and the career FBI agents who are on the case, are just beside themselves with this kind of activity. The other is, I was struck by things that I thought that she said that, let’s just say, I had substantial concern about whether they were truthful. Starting with page seven. So it’s at the very beginning, where she says, you know, this is the first time I ever really could speak. Again, I’m paraphrasing. I always wanted to give my story, and no one really let me, and I kept on telling my attorney, I want to do this because I’m happy to be an open book.
Well, she only testified before, in this setting, these two days, when she got a proffer agreement. A proffer agreement is a form of immunity. It’s not complete immunity, but it’s a form of immunity. So that’s saying, I’m not just an open book. I’m only going to meet with you under certain circumstances. Again, there’s nothing wrong with saying that, but don’t say, I’m only going to meet with you under certain circumstances, but I was always going to be an open book.
Similarly, the Senate wants to talk to her, and she was like, well, yes, I’ll do that, but here are the 17 conditions. So it just seemed so, like, if she was going to say that, where was the cross-examination to be like, I don’t really get that. So those are my sort of overarching takes as to what’s going on here. The big picture to me was government is sort of death by a thousand cuts, because it’s like, where’s the rest of the material?
Mary McCord: That’s right. That’s right. And, you know, since these were released, I know that there have been more subpoenas from the Oversight Committee. We’ve learned that the former U.S. Attorney in Florida who had given a pretty sweetheart deal to Jeffrey Epstein back when he was accused of federal violations, but also state law violations, allowed him to plead guilty to the state law violations in return for not being prosecuted federally in Florida. And they’re going to have him, that is, Alexander Acosta, testify. And my thought was, you know, this is just really kind of going to your point of, are you talking to the right person? How about have the career prosecutors in his office be the ones to testify about why that sweetheart deal was given? Because that would probably be more revealing than talking to Mr. Acosta.
Andrew Weissmann: And exactly, the whole idea of calling witnesses, I was like–
Mary McCord: Just turn over the documents.
Andrew Weissmann: Turn over the documents. I mean, this was like, then you can sort of see whether there are witnesses who are needed to put more flesh on the bones. But it’s like, really, you’re going to call some Trump acolyte but still not turn over the documents? I don’t understand the strategy here, because if you want to show that you’re transparent, there’s a way to do that. You can be transparent. I mean, it’s just, this is not rocket science. And it really is assuming that the story will go away or that people are morons, and actually will just get completely distracted by look at the birdie. And to me, it’s just unbelievable. This is, like, if you say you’re going to be transparent, if you started the conspiracy theory that there’s a lot of there there, then you need to show it.
Mary McCord: To be continued, clearly.
Andrew Weissmann: Yes.
Mary McCord: Because this is the continuing story.
So, let’s take a break. We’re going to just mention before the break, but we don’t have time to get into it. It was a 77-page opinion, but the judge up in New Jersey who had motions from defendants in criminal cases to get rid of those cases because Alina Habba, as the U.S. attorney, the acting U.S. attorney, was not validly in office. He did not get rid of the cases, but he did agree, in 77 pages of opinion, that Alina Habba was not lawfully performing the functions of the U.S. attorney and had not been so since toward the end of July of 2025.
And so, right now, that is where Alina Habba stands in terms of a judge having said, you are not validly performing the functions and duties of the U.S. attorney in New Jersey.
Andrew Weissmann: And that’ll get appealed, and all of this is another example of, you know what? If you put somebody in there who was remotely qualified, the judges, they would have been confirmed, and/or if it took a long time, the judges would have said, you can stay on, because that is the norm. It happens all the time. And the reason you’re seeing all of this is not because judges are being political, because God knows, you’re talking about judges of all different stripes across the nation, is because they’re reacting to the lack of remote competence of these people or the politicization, or both.
Mary McCord: And the end run around statutes that say, you can’t just continue to have somebody in office indefinitely who hasn’t gone through Senate confirmation, by monkeying around with the statutes. All of those things.
Andrew Weissmann: Sorry. What I meant is, the judges normally would have just said, yes, we’re going to select you past the 120 days, and that’s just normally what would happen. So it’s just such an indication that the reason that judges are pushing back is because these people are just loyalists, and they’re not there for either competence or being apolitical, which is the appropriate thing for what you want in our law enforcement.
Speaking of which, this is a perfect segue.
Mary McCord: It is.
Andrew Weissmann: Let’s take a break, and we’re going to come back and talk about something that could not be more serious. This is one where it’s hard to come up with language that is fitting for the seriousness of what is happening. But let’s take a break and come back and talk about the new executive order with respect to something we talked about last week, which is the militarization of America.
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Andrew Weissmann: Mary, the White House issued an executive order, actually a number of them, but one, in particular, that we need to focus on. What did it say?
Mary McCord: And this was the one called “Additional Measures to Address the Crime Emergency in the District of Columbia.” And this is really in combination with other directives and other reporting that has sort of amped up the military presence in D.C. We talked last week about red states voluntarily sending National Guard members to D.C. to engage in this type of patrolling. Additional states have joined that effort, again, all over the objection of the mayor. But in this particular executive order, among other things, the president has directed the secretary of defense to begin a special training and hiring and equipping of a specialized unit within the D.C. National Guard dedicated to ensuring public safety and order in the nation’s capital and to have the Secretary of the Interior, the Attorney General, the Secretary of Homeland Security all deputize the members of this unit to enforce federal law.
Now that is one of two provisions I want to talk about. So what that means is he is going to use the D.C. National Guard, you know this is something that we’ve said he might do but he had not been doing, to actually engage in domestic law enforcement. And by saying deputization, not just by the Attorney General, which would be sort of for federal law enforcement of criminal statutes, he’s also saying the Secretary of Homeland Security. So ding, ding, ding, what does that mean? That means deputized to do federal immigration enforcement.
And this is where D.C.’s status as a federal enclave makes things so unclear because Posse Comitatus Act is specifically meant for the military, when it’s under federal control, to not be engaging in federal law enforcement on domestic U.S. soil. That is what our framers and all throughout our history have wanted to keep a real divide between what your standing army does in terms of defending the homeland, defending the nation, going out and, you know, prosecuting wars abroad, and actually engaging in domestic law enforcement.
Normally National Guards in other states they can engage in some domestic law enforcement when they’re under the control of their governors, but in D.C., there is no governor so they are always under federal control. So to allow them to do this is in direct violation of the Posse Comitatus Act.
The government has taken the position though, for a number of years, that when they are acting in their National Guard capacity and haven’t been sort of quote-unquote federalized under the Insurrection Act or something like that, that they can do what other state National Guards can do and they can engage in domestic law enforcement. And so, you may be thinking out there well why doesn’t that make sense? It’s because in those other states, they’re not under control of the federal government. They’re not reporting up through the federal military chain. They’re not reporting up through the Secretary of Defense, right? They are actually engaged in civil missions under the authority of their governor. This is very different. By its very nature they are being commanded by federal commanders.
Andrew Weissmann: Mary, I just want to make sure this just sounds like an army that is being created that is under the control of the president but not to deal with external forces but to deal with internal forces.
Mary McCord: That’s right.
Andrew Weissmann: And so, I wanted to raise two provisions that caught my eye because the title of this executive order, I think, is extremely misleading.
Mary McCord: Yes.
Andrew Weissmann: And I want to make sure people understand this because the title that you mentioned is “Additional Measures to Address the Crime Emergency in the District of Columbia.”
Mary McCord: That’s right.
Andrew Weissmann: But, big but, I wanted to just focus on provision C and provision D2. And I’m not going to get super nerdy but I just wanted, we’ll put a link to the executive order in our show notes, but in C at the end of that paragraph, it says that this cadre that’s being developed is going to be available subject to applicable law, and I’m going to say this is a quote, “in other cities where public safety and order has been lost.” Unquote. In other cities.
Mary McCord: Right. Now this one, just to be clear, C is not about the National Guard. It’s about the D.C. Safe and Beautiful Task Force.
Andrew Weissmann: So that’s what I wanted to ask you about because there were two provisions that I saw that related very much to other places outside of D.C. So there’s C, and then in D.
Mary McCord: D2, yes.
Andrew Weissmann: One of the things says that this is now the Secretary of Defense is ensuring that the state’s Army National Guard and Air National Guard are resource trained, organized, and available to assist federal, state, and local law enforcement. And it goes on, but this is the last sentence, quote, “in addition, the Secretary of Defense shall ensure the availability of a standing national guard quick reaction force that shall be resource trained and available for rapid nationwide deployment.” Unquote.
Mary McCord: That’s right.
And this is something that, you know, I think it was the Washington Post a few weeks ago had gotten a hold of some internal memos that reflected some planning for this. And even that reporting said that there was a lot of debate about, you know, the legality of this. And here it is, stuck in an executive order that by its title seems to be directed at DC.
And so, yes, here what we’re talking about is training and resourcing and organizing a group of different National Guard members from different states to be this standing quick reaction force to deploy to other cities as necessary. And again, my question is, what authorities is the president invoking here? Is he suggesting that this training would be under the authority of the president, secretary of defense to call forth National Guard members for training? Anybody out there who’s a member of the National Guard is like, yes, I got to go do training sometimes that the federal government requires.
But then what about the next part? You’re trained and then you’re part of this quick reaction force. Is that going to be that the president then federalizes the National Guard each time he wants to send them out to a city and he’s talked already about Chicago and he’s talked already about Baltimore? Or is this going to be National Guard members from states where the governors are willing to send them voluntarily under Title 32, where they stay technically under the governor’s authority, but could be sent into states that don’t consent? This raises all kinds of legal issues. This is an ambiguous provision and we’re not sure. There are things that might be able to be challenged. There’s things that might not be able to be challenged until we learn more.
The other provision, the one about the Safe and Beautiful Task Force, that appears to me to be a law enforcement task force because as folks know, who are following D.C., the other thing that is happening here, in addition to the National Guard being deployed here, is that federal agents from lots of different federal law enforcement agencies, but the ones I think kind of creating the most havoc are those from DHS. That is ICE agents and other homeland security agents. They are actually going out into the community with the Metropolitan Police Department so that if the Metropolitan Police Department makes a stop, right, a legitimate stop, let’s just assume, whether it’s a traffic stop or it’s a stop on the street based on reasonable articulable suspicion, that’s called a Terry stop, a brief investigatory stop. ICE is there trying to get identification and documentations and then making ICE-related arrests. So essentially, we have the federal law enforcement kind of like riding along with local law enforcement and using that as a way to expand their immigration enforcement in D.C.
So the question here, of course, and now this is talked about public safety and order, not immigration, but this entire crime emergency in D.C. seems a little bit like a foil for more immigration enforcement.
Andrew Weissmann: So I wanted to focus on that for a moment because to me, not as steeped as much as you and sort of very important technical legal issues here, is that the ruse, and I use that word deliberately, of grounding this on safety concerns is the kind of thing that allows this to be done anywhere.
There’s crime in blue states, there’s crime in red states. There will always be crime in blue states and red states. You can lower it, you can have smart strategies, you can have different policies to attack it, but there will always be some crime. If the trigger for being able to militarize this country is the president having unilateral authority to say we have a crisis with respect to crime and point to the fact that there is crime, that is no trigger. And that is something that Abraham Lincoln talked about, which is that emergency powers beget emergency powers. Our favorite decision in the concurrence by Justice Jackson in the Youngstown case, where he talked about the concern about executive power in this country and across the globe.
Remember, he was the justice who took a leave from the Supreme Court to be the chief prosecutor in the Nuremberg case, and he talked about Germany and the emergency powers that were authorized pre-Hitler and then during the Hitler regime, and that the claim to needing these emergency powers to deal with a problem, they go on forever. And to me, that is, by grounding this on a claimed, feigned concern by a convicted criminal who has released and pardoned convicted criminals, hundreds and hundreds of them, in connection with January 6th, to have the feigned concern about crime be the trigger for ascending in the military, the reason this is so, to me, different in kind, is because it is not just the road to authoritarianism, it is.
Mary McCord: It is. We now have military doing general crime control. The Constitution leaves that to the states. And this is a huge, I agree with you, Andrew, this is just a huge step. And I know Garrett Graff wrote a piece, I don’t know if you’re familiar with his work.
Andrew Weissmann: I am, I am.
Mary McCord: Others have been writing. I thought it was a great piece.
Andrew Weissmann: I was on air with him. I was on with him yesterday.
Mary McCord: Let’s put it in the show notes where he says, we woke up Monday morning and things were different. You know, people wonder, like, when will you know when we’ve slipped into, he says, a fascist regime. And he says, this is when it is because we now have the excuse of crime to send military throughout the country under federal control.
Andrew Weissmann: So this is like the frog and the water boiling, which is that if you have the water boiling and you put a frog in, he like jumps right out because he’s like, I don’t want to be there. But if you put the frog in the cold water and you turn the heat up, it’s like, oh, oh, oh. And then before he knows it, he’s cooked.
And the analogy is obvious to the people listening to this, which is this is happening incrementally and it leads you to think, oh, we’re not there. Oh, we’re not there. Oh, we’re not there. But that’s where I think what you’re saying about Mr. Graff and his piece and how this is, it is a continuation, but it is sort of a stark break.
And people need to really wake up to what is going on. And, you know, you can say this about a Mr. Abrego-Garcia and think, well, that’s not me. You can look at D.C. and think that’s not me. You can look at L.A. and think that’s not me. But you have an executive order now talking about nationwide militarization, and it shouldn’t take a particular show of empathy to understand that. It should take a sort of common American decency to understand that concept.
Mary McCord: That’s right. And, you know, to the extent I listened to the president yesterday in signing these executive orders talk about things that are just not true, that restaurants are now bursting at the seams with guests because D.C. is so safe. No, they’re hemorrhaging. They have nobody coming. The streets, you know, I was downtown on the weekend. There’s just not many people out. It is extremely quiet. Yes, it is the last week of August in Washington, which is a big week for Washingtonians to vacation, but it’s also a big week for people from outside to come to Washington.
Andrew Weissmann: Of course.
Mary McCord: I was with an Uber driver, who also has a job working with timeshares like rental condominiums. He says they’ve been getting cancellations left and right from people who don’t want to come. And it’s not because they don’t want to come because they’re afraid of crime. They don’t want to come because they don’t want to be in a city that they feel like is going to be a military zone. Now, I will say I only saw a National Guard once. It was in one of the metro stations. Maybe I wasn’t in the right places. So I don’t feel like it is like teeming with military right now. And I do hope people will come to Washington, D.C. and go to the restaurants and go to the museums while they still have exhibits that haven’t been completely whitewashed so that you don’t know what our history is. That’s another topic we haven’t discussed.
But let’s think about like if this expands to other cities, this is not just. Everything you said and that I said. It’s like important. We don’t want militarization of our cities, but also economically, it is disastrous. It is absolutely disastrous. So people get out there, make your voices heard. This is not lawful. It’s not what we want.
Andrew Weissmann: Okay. Thank you, everybody, for listening. I know this was a lot today and it’s a lot to take in. And it’s so important that people are listening and staying engaged to shows like this.
So remember, you can subscribe to MSNBC Premium on Apple Podcasts 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. Bob Mallory is our audio engineer. Bryson Barnes is the head of audio production. And Aisha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcasts and follow the series.
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