Last Thursday, New York Attorney General Letitia James was indicted by a grand jury on two counts. This, on the heels of former FBI Director James Comey’s arraignment, where pre-trial motions were granted around vindictive and selective prosecution. Mary and Andrew use these two examples to explain why targeting individuals instead of crimes violates some of the Justice Department’s most sacred norms. Next, they walk through the latest court battles around federalized National Guard troops in Oregon and Illinois, with a 7th Circuit ruling in Chicago and oral arguments in the 9th circuit over the Portland deployment. Last comes a notable article from Professor Caleb Nelson, one of the nation’s foremost originalist legal scholars, who questions granting increasing executive authority to the presidency.
Further reading:
- Here is Professor Nelson’s article written for NYU Law’s Democracy Project: Special Feature: Must Administrative Officers Serve at the President’s Pleasure?
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Note: This is a rough transcript. Please excuse any typos.
(MUSIC PLAYING)
Andrew Weissmann: Hello, and welcome back to “Main Justice.” It is Tuesday morning, October 14th. I am Andrew Weissmann. I am here with, as everyone knows, my co-host, and Mary, I feel like I just saw you because we were both on the exact same time with Nicolle Wallace yesterday. And then, it was very funny because you said something that I was like, wait a second, I made the same point.
Mary McCord: We had a mind meld, Andrew.
Andrew Weissmann: And you know what, this is like, is it environment or heredity, you know, is it that we’ve been working together for two plus years, or is it that we sort of have the same experiences and makeup from our time in the Department of Justice? But whatever it is.
Mary McCord: Or is it both, or is it both?
Andrew Weissmann: Right. This is going to be a really interesting episode because when we were talking about it, even though there is a flood of information and things to cover, we actually are going to pull back a little to really talk, but inside baseball to the department and big picture issues. So, it’s going to be really a mixture. And it’s kind of nice because there’s so much drinking from the firehose, to use a hackneyed expression, since January 20th. So, Mary, what is on our dance card?
Mary McCord: Yes. And that’s all, a lot of foreshadowing of the first subjects, of course, will be the continued political prosecutions coming out of the Department of Justice at the direction of the president. And this was of course, last week, the indictment of Letitia James, the New York Attorney General, we will talk about that. We will talk about how that came to be.
We’ll talk also about the arraignment of James Comey and what is coming out of that and sort of, the impact of both of these, as well as other investigations of political enemies of the president, the impact of that on the Department of Justice, the U.S. Attorney’s Offices, and the department as a whole. And it’s not a good impact. That’s a spoiler alert.
Then we’ll catch everyone up on what has now been sort of a sustained week by week tracking of challenges to the president’s attempts to federalize and deploy National Guards in, just for lack of a better word, blue cities, where he claims that crime is out of control and that ICE is unable to do ICE’s job because of protests and other activity. And we have a new TRO issued out of Illinois, and we have had argument in the Ninth Circuit on the case out of Portland.
And so, we’ll talk about some of those things. That TRO opinion from the judge, Judge April Perry in Illinois, does make some points that have not been made in the past that I think are worth us talking about.
And then I’m just going to foreshadow right now. And we’ll probably talk about this next week after the argument. There’s a very significant Supreme Court argument —
Andrew Weissmann: Yes. Extreme.
Mary McCord: — tomorrow in Louisiana v. Callais. And this is a case about Section 2 of the federal Voting Rights Act. This is a section that prohibits election practices that would result in the denial or abridgement of the right to vote based on race. And so, this is the section that has been used when there has been redistricting that sort of cuts off a minority in a state from really having an equal opportunity to cast their votes.
And so, the remedy for that in the past and the remedy in this case was to redraw the maps so that the racial group was of course, Black voters whose right to vote was being abridged based on race and maps were redrawn. And that has now become under challenge. And this is something that the Supreme Court specifically asked the parties to address whether redrawing maps in accordance with Section 2 of the Voting Rights Act violates the equal protection act of the Constitution.
And so, obviously just articulating that shows how significant this is, because if the Supreme Court were to hold that you can’t do that, then this huge remedy for historic voter suppression by race would be eliminated from the toolbox to address these kinds of issues. So, we will talk much more about that next week after we’ve had a chance to listen to the argument and digest how the justices are responding.
But we will talk about something else that is very present in the Supreme Court’s term this fall. And that is a very, very conservative academic who has published a piece that really challenges the thinking coming out of this Supreme Court in its recent cases about the president’s authority to remove heads of independent agencies and members of bipartisan commissions that are the heads of independent agencies. And this conservative academic is suggesting that an originalist interpretation of the Constitution does not support this unitary executive theory that would allow the president to fire without cause even those who Congress has said, no, you need cause for so.
Andrew Weissmann: Yes.
Mary McCord: It’s kind of a big deal.
Andrew Weissmann: Yes. This is a big deal and we’ll get into the details —
Mary McCord: — yes.
Andrew Weissmann: — but just so people understand, this is a legal academic who is highly respected, who has raised questions about a key component of what the Supreme Court has latched onto, the majority has latched onto to support the unitary executive theory and the growth of presidential power.
Anyway, we’ll turn to that. Mary, can I just make one quick observation, because we’ll obviously talk more about the voting rights case —
Mary McCord: Yes.
Andrew Weissmann: — but one of the things that occurred to me is what the Supreme Court has done, and unfortunately, I think may continue to do, but we’ll know more from the argument tomorrow, is in many ways analogous to what the president has done with respect to January 6th, what the president is doing in connection with his effort to change exhibits at the Smithsonian, which is to whitewash history and to really ignore the historical record and what that means.
Mary McCord: I’ve used that term too. I don’t know what other term there is for it. I mean, we’re trying to take America’s history of enslavement and race-related issues and discrimination out of our history. And that’s not how history works. Okay. Should we dive in?
Andrew Weissmann: Yes.
Mary McCord: So, I have to say, and you and I ended up on Nicolle Wallace’s show last Thursday, too, when the indictment hit. I was in a meeting and got a text, could you jump on? I’m like, well, I’m in a meeting. It hasn’t even happened yet, has it? The indictment. And they’re like, well, the reporting is it happened.
Andrew Weissmann: Yes.
Mary McCord: Like, it was like, expected, but still a surprise, like that timing of it.
Andrew Weissmann: Yes. So, Letitia James has now been charged like James Comey. There are a lot of procedural irregularities. You have reporting from MSNBC, from Carol Leonnig, who’s just been amazing, along with Ken Dilanian on many of the stories. And there have been career people who have said that there is insufficient proof.
Let me just give you a quick overview of how I think about it. The thing that we know for sure is that there’s targeting, even if, that’s a big if, but even if there is a crime there, we know for sure that she has been singled out in the same way that we know that is true with respect to James Comey and others.
Mary McCord: That’s right.
Andrew Weissmann: And that in and of itself, whether it’s selective prosecution of vindictive prosecution, it violates tenants of the Department of Justice. It violates the idea of Robert Jackson, Justice Robert Jackson wrote a very famous speech about the role of a prosecutor, which is you investigate crimes, not people.
Mary McCord: That’s right.
Andrew Weissmann: And that is not what’s happening here. And so, you end up with this targeting of perceived enemies, and this is number two, after James Comey.
So, then there’s the issue of the actual charge. And, you know, again, this is one where we don’t know what the facts are for sure. We don’t know what the proof will be. It’s a bit convoluted because the reporting of what it is that she allegedly did, initially, the reporting in advance of any indictment was this issue about whether she claimed that a home that was a secondary home, not her principal residence, whether she claimed it as a principal residence, when it wasn’t, because that would allow her to get a loan at a cheaper rate. But that wasn’t in fact what ended up getting charged. What ended up getting charged was a very separate idea, which is that, the allegation is that she had a secondary home. Not that she was saying it’s a primary or secondary, but she had the secondary home. And the allegation is that she wasn’t going to use it to sort of generate income. It wasn’t going to be rented out. And again, the theory being that if it was going to be rented out and the bank knew that, that the rate of the loan would be different, it would be more expensive if they thought that it was going to be used as an investment property, as opposed to a personal one.
Mary McCord: And the reason there, right, is that it’s riskier, right? If you’re making a loan to someone to buy an investment property that they’re going to rent out, many things could happen. Renters could damage it. And that, you know, causes potentially the person with the loan to say, I can’t make my loan payments. Other things like that, it’s considered a riskier investment. That’s why there’s these differences in rates.
Andrew Weissmann: Right. And the delta that came out in the indictment, which is worth pointing out because there’s a forfeiture allegation. And they say they want to forfeit the difference, the amount that they claim she earned by doing this scheme. Again, these are just allegations was like a grand total over the life of the loan of $19,000.
Mary McCord: Eighteen thousand?
Andrew Weissmann: Yes. A little less than.
Mary McCord: Yes, $18,933.
Andrew Weissmann: Right. Right. So, you know, that’s not nothing, but for the world that Mary and I were in as federal prosecutors, that’s not the kind of guidelines, that we have guidelines as to what you could bring and what you can’t. Let’s just say, even if it met the guideline, it’d be really, really low.
Mary McCord: Yes.
Andrew Weissmann: Okay.
Mary McCord: I want to pause and talk about that, right?
Andrew Weissmann: Yes.
Mary McCord: Because I’ve had a lot of reporters and a lot of people ask about this. And first of all, you started well by saying, in my experience under the Department of Justice guidelines, you investigate crimes. You don’t investigate people, but significantly you also under Department of Justice guidelines, there must be a significant federal interest in the cases that federal prosecutors bring.
I mean, the vast majority of criminal prosecutions in the country are done not by federal prosecutors, but by local and state prosecutors, right. Working with local and state police. Now, granted, a lot of these are like street crimes, more violent crimes, and things like that. But they also prosecute white collar crimes. They prosecute fraud.
Andrew Weissmann: Yes.
Mary McCord: They prosecute all kinds of things like that. And so, for the federal government and the Department of Justice to use sort of its vast powers and bring cases in federal courts, there are far fewer federal courts than there are local and state courts, right. Far fewer. There’s got to be some discernment here. There’s got to be some use of judgment of, is this a case that is worth the federal government putting its resources in? So, it needs to always be done to advance a significant federal interest.
So, what’s the federal interest here? Well, there is a federal insurer, right, that ensures the bank that made the loan and that’s the federal interest. And that’s the only reason this could even be prosecuted in federal court. And so right now these are just allegations. And I could see if this case as frankly, petty $18,000, if it, this is even the case as petty as it is on, let’s just say a $137,000 property. This was not a $2 million or $3 million home she bought and reap this huge windfall in terms of the rates kind of like, hmm. A case I might remember in Manhattan potentially brought by Letitia James. And we could talk about that, but this was a small dollar amount property, a small dollar amount of supposed gain. I could see if this was a part of a pattern and the person alleged to have done this, did this hundreds of times. Right.
Andrew Weissmann: Right.
Mary McCord: And always, you know, engaging in fraud. I could see like, okay, maybe we have a federal interest here that’s worth prosecuting and stopping this. But I have never seen, certainly in my office, we would’ve never brought a case like this. It would’ve never even hit the radar to bring. And of course, hitting the radar is also interesting, because it doesn’t seem like it was the bank that complain. It wasn’t anyone that supposedly got defrauded that complained. It was, you know.
Andrew Weissmann: It was the president of the United States.
Mary McCord: Yes, that’s right.
Andrew Weissmann: But to your point about that, it is worth going back to the Manhattan case that Letitia James brought, which was a civil case. Well, you know who complained about that saying that this is picayune and this should not have been done, even though it involved millions and millions of dollars was just to be fair, they’re not totally the same context.
Mary McCord: That’s right. That’s right.
Andrew Weissmann: But involved substantially more money was the president. So, I mean, talk about hypocrisy, because this definitely would fall into two wrongs don’t make a right. I mean, he’s basically saying, hey, you did to me, so I’m not going to go after you criminally for something that, you know, really looks like the pimple on an ass of an elephant.
Mary McCord: Okay, there’s our title.
Andrew Weissmann: And you know, what remains to be seen is there’s been no arraignment. It’ll be interesting to see whether the Eastern District of Virginia, this is, you know, the same office that has the Comey case, whether they’re career people who are going to stand up on it.
I do want to point something out. The career people in the Eastern District of Virginia, some people have criticized them because they haven’t resigned en masse. I am not one of those people and I want to make sure people are picking up what they are putting down. They have not agreed to do the case. They are not on the case. I cannot tell you how, if we are not hearing that, that is our fault. These are the entire office of career people are not on that case. The Comey case had to be staffed by two people outside of the district. I have never —
Mary McCord: From North Carolina.
Andrew Weissmann: — in my life had that experience. That means they are quite aware they could all be fired any day of the week. So, they are voting with their feet in the sense of, they are not stepping into that courtroom. And I commend them for not wanting to engage in malicious, vindictive, selective prosecution, whatever label you want to put on it. It really is something that is violated all of the core principles that on a bipartisan manner the department stands for and has adhered to in Democratic and Republican administrations.
Mary McCord: Yes. I couldn’t agree more because they are still prosecuting other cases where there is a significant federal interest. Now, I will say, if, and when the time comes that various individuals in that office are asked to do something that they don’t think —
Andrew Weissmann: Of course.
Mary McCord: — they can ethically do. I think we’ll see people step down and we’ve already seen other people fired. We’ve seen people step aside and we’ve seen that not only in that office, but in many other U.S. Attorney’s Office and at the Department of Justice. And so, when I say that in the Main Justice, what our podcast is called, but for now people who are there and let’s also remember these are people who probably have mortgages and childcare and you know, expenses and just quitting. If you’re able to do your job ethically is certainly not required of them.
Andrew Weissmann: And not only not required, but like I want them there. I want career people, not only for what they’re doing, but also the ethics they bring to the table is something I want in all cases, regardless of, you know, who’s being prosecuted or not being prosecuted. So, freeing it up a spot for somebody who’s going to not have those principles would be a real cost. And resigning would also in many ways, Lindsey Halligan who’s now the interim U.S. attorney could be like great. Be my guest.
The thing to keep an eye on is in both the Comey case and the Letitia James case, keep an eye out for emotions that are going to be challenging the appointment of Lindsey Halligan are going to be making claims about selective and vindictive prosecution. Still, those haven’t been made yet. That’s going to be the battleground at first.
Mary McCord: And in the Comey case, these are coming right up. In fact, there’s been a lot that’s happened just over the weekend in terms of getting the schedule done. And the government is due to provide discovery to James Comey right now. And that includes like all the Brady information, right? Potential exculpatory or impeaching information that would undermine the government’s case against him. It’s all of his statements ever relevant to what he’s charged with. A big burden that they’re going to have a hard time meeting.
Andrew Weissmann: Including what a God’s Queen on Earth. He actually alleged to have done.
Mary McCord: Exactly.
Andrew Weissmann: Because we don’t actually know that. Mary, let’s take a break. We’re going to come back and I know we’re going to go up to Illinois, but I want to ask you a question.
Mary McCord: Let’s do it.
Andrew Weissmann: And so, that’s my cliff hanger.
Mary McCord: Okay.
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Andrew Weissmann: Welcome back, Mary. Before I turn it over to you, because I’m really interested in hearing what you have to say about the temporary restraining orders coming out of Illinois. I was looking at the Comey charge. In 2017, Director Comey testified and what he testified to is not the subject directly of the charge because 2017 was more than five years ago. And there he was asked questions and he basically said, I did not use a cutout. I did not instruct somebody to leak information for me to the press. Fast forward to 2020. And what appears to be charged is a conversation that he had with Senator Cruz where Senator Cruz sort of, refers back to that testimony and says essentially like, didn’t you say that? And isn’t that true? And what Comey says, he doesn’t repeat it. He says, I stand by my testimony.
If that’s the statement and notice that the charge that Comey charge does not quote what is the false statement, which is so unusual. Because Mary, when I’ve done these, I always have the exact statement that is quoted. So, if the only thing that Comey said is, I stand by my testimony, as you summarized it, that is not false.
Mary McCord: That’s a very interesting idea. And people might be saying, wait a minute, I’m looking at the indictment. There is something in quotes, but it was the question. So, what it says in count one is that, you know, he willfully made a false statement to a U.S. senator during a Senate judiciary committee that he, James B. Comey Jr. had not quote, “authorized someone else at the FBI to be an anonymous source in news reports,” and quote, “regarding an FBI investigation concerning person one.” And those quotes though, to your point were not James Comey’s statement. That was the question from the senator to him, that’s being quoted. And he said, I stand by my testimony.
So, I think you raised a really interesting and good point that I haven’t heard really people talking about. I have another thing that I’ve been thinking more about, which is that could this, even if it could be interpreted as a false statement, be with all the problems and baggage that go along with that, including what you’ve identified is it material because the subject matter of the 2020 hearing was not the subject matter of the 2017 hearing. So arguably, this question was really, was just a way for the Senator to try to get some dirt on James Comey, kind of get under his skin and try to point something out and catch him. But it wasn’t what the topic was. So, materiality is also important.
Andrew Weissmann: But this is one where, to your point that the government has to turn over discovery. The government is going to have to say specifically.
Mary McCord: Yes.
Andrew Weissmann: What is it that James Comey said? What the indictment says he said is not what he said.
Mary McCord: That’s right.
Andrew Weissmann: So, there’s going to be a problem. And that could really lead to a clear motion saying this is like, absolutely facially insufficient and it’s just not in the record. So, stay tuned.
Now, Mary let’s turn to Illinois and we have sort of what happened at the district court level with Judge Perry issuing a temporary restraining order. And then we have very quick ruling, a one-page order from the seventh circuit that I have to say largely affirmed her in many ways in terms of what I would say is it affirmed her on the import. So, anyway, what’s going on there?
Mary McCord: So, very similar to in Portland, right, after the president authorized the secretary of defense essentially to federalize the National Guard in Illinois and National Guard in Texas and have the Texas National Guard come into Illinois, supposedly to in get, well, it’s not entirely clear what they’re going to engage in. That’s a little unknown.
I mean, sometimes the president says crime control, crime is out of control in Chicago and we’re going to take care of that and we’re going to make it the safest city in the world, just like we did in D.C. where there’s no crime, he claims now. So sometimes he says it’s about crime. Other times, he seems to say that it’s about the protests against ICE and the vicious and violent terrorist attacks against ICE and ICE being unable to do its job.
So, it’s not entirely clear. Although we do know that it was at least based, in part, on the June 7th executive order that authorized the secretary of, I’m going to call them the secretary of defense because the Congress has not changed the name of the Department of Defense to the Department of War and only Congress can do that. That’s a subject for another day. So, authorized the secretary of defense to a federalized National Guard for when protests and other activity are equivalent in the person’s mind to a rebellion against the authority of the United States.
Okay. So that happens. And before they even get there, of course there’s a lawsuit brought by Illinois and the city of Chicago just like there was in Oregon, brought by Oregon and the city of Portland and there is a lengthy hearing and then it results in a temporary restraining order being issued by a federal judge who says you cannot deploy any federalized National Guard in Illinois.
And just to get to where we are in the seventh circuit after she ruled. And then, we want to talk about her ruling of course, after she ruled the government immediately peeled this to the seventh circuit, asked for an administrative stay, which would’ve —
Andrew Weissmann: Stayed her stay.
Mary McCord: Exactly.
Andrew Weissmann: Right.
Mary McCord: That’s right. And what the court said is we will grant that administrative stay as to the federalization of the National Guard, but we will deny it as to their deployment. What that means is the troops you’ve already sent there from Texas and the Illinois troops that have been federalized. So maybe they’re housed somewhere and they’re getting ready to do something. You don’t have to send them back to their homes.
Andrew Weissmann: You can federalize them.
Mary McCord: Yes.
Andrew Weissmann: You just can’t use them. So, this is like, knock yourself out. You want to federalized people, have at it, but you know what, we’re not allowing them. So, the seventh circuit left intact her temporary stay.
Mary McCord: That’s right.
Andrew Weissmann: And I thought the really interesting part is what you’ve been sort of teasing, which is let’s talk a little bit about what you found most interesting about her ruling here. And remember she is now joining Judge Breyer in San Francisco and Judge Immergut in Oregon in finding that this is improper. And how did she get there? What did you find, you know, without going through all the details, but what was sort of most interesting to you about how she ruled?
Mary McCord: Yes. So, the parts I want to talk about are really her legal analysis, but I will say just like the judge in Portland, she found that the federal government’s declarations about the situation in Chicago and in Broadview, which is where this ICE facility is. She found that they were not credible, that they just didn’t match up to the actual facts on the ground.
And this is one of the titles to one of our podcasts about the Portland ruling, where that judge said that the federal government’s representations were, quote, “untethered to the facts” and she made a similar determination here. But then she went on to look carefully at this authority Section 12406, 10 United States Code 12406. And the government had claimed essentially that these deployments were necessary under both subsections two and three of that. Two is about whether there’s a rebellion or danger of a rebellion against the authority of the government in the United States.
She agreed with really what other judges in Portland and L.A. have said is that rebellion, if we look historically what it means, it’s like an open —
Andrew Weissmann: Yes.
Mary McCord: — and organized rebellion against the authority that, you know, and she says comparable to Civil War, she goes historically that way. And we don’t have that. But then the focus even out in L.A. and the ninth circuit didn’t rule on the rebellion part, but said, this other part might be valid, which is when the president is unable with the regular forces to execute the law of the United States.
And here’s where I think what she did is really interesting. And I actually think she’s right. And it’s something that I’ve been thinking about for quite a while, but haven’t seen any judge rule on this.
So, what the government has been arguing is that, regular forces means other federal law enforcement. So, if we have to use any federal law enforcement that we don’t already have in that place, like what in Portland or in Chicago, if we have to call them from someplace else, that means we were not with the regular forces able to enforce the law of the United States. Therefore, we can call in the National Guard to enforce the law.
Andrew Weissmann: Even if we bring one person in from an adjoining office.
Mary McCord: Yes.
Andrew Weissmann: That means we were quote, “unable,” unquote, which is the word that’s used in the statute.
Mary McCord: That’s right. This is interesting. We’ll come to it because at least two of the three ninth circuit judges hearing an appeal from the Portland, TRO spent a lot of time talking about whether that’s the right test, but they didn’t really talk too much about what is regular forces meant. They just kind of meant, does it really mean that if you have to bring people in from outside that that’s unable, and actually do seem to suggest, yes, that does mean you’re unable, but we can come back to that. So, she rejects that argument, although she does make an alternate ruling saying even if that is what it means, there’s just been no showing here that, you know, the state law enforcement and other law enforcement present are unable to —
Andrew Weissmann: Do the work.
Mary McCord: — do the work that they do. And certainly, no showing that ICE has been unable to enforce federal law. In fact, I think any of us watching what ICE is doing around the country would see ICE has not been thwarted in doing raids and arresting people and, you know, shooting smoke guns and paintballs and everything like that at people. In fact, there’s a whole another TRO from last week about, you know, ICE’s excessive force and retaliation against journalists and religious leaders and protestors based on the First Amendment. So, all of this is happening.
Andrew Weissmann: Can I just interrupt there for a second and just say, it’s so hard to cabin those two things, because in addition to the lawsuit that you mentioned about how ICE is behaving with respect to journalists, let’s say, there also is wide reporting about the way ICE did a raid. And I use raid intentionally because it seems impossible for it to have been court ordered where the reporting is this sort of a raid of an entire apartment house.
And you and I have been federal prosecutors, that is not the way a court-ordered search warrant works, where you could get a search warrant for the entire apartment house in every apartment in it, or even the vast majority absent some extraordinary circumstance, which I have never, ever, ever seen. What usually happens is you say, I have probable cause with respect to apartment, you know, for W within that, or maybe two apartment. But here, the reason I find it so fascinating is when you’re thinking about illegality, there seems to be substantial argument that it is the ICE. I’m not saying all of them by the way.
Mary McCord: Right.
Andrew Weissmann: I’m not trying to tar them with a broad brush. And I’m sure there are many that are fine, but we are seeing what appears on its face and is certainly alleged by various plaintiffs to be violations of rights up to, and including constitutional rights under the Fourth Amendment. And yet, the same people the government is going in saying, wait, they’re unable to do their job. Well, if their job entails violating the Constitution, that is obviously not consonant with the statute authorizing this kind of activity.
So, to me, it’s hard to be so myopic in the analysis, unless you have both pieces of, well, wait a second, what are they doing there? And are they complying with the law? I mean, if they were being entirely within the law, once they got there and then, the reasonable minds could be differ (ph) in the real issues here. But when you have them behaving in the way that it’s least alleged to me, that really undermines the argument from the government as to why they’re needed.
Mary McCord: That’s right. And in fact, Judge Perry did reference not the case of the ICE raid on the apartment building, but the case that had been brought by a groups of journalists and media and religious leaders alleging that, you know, their constitutional rights, their First Amendment rights, their religious freedom rights and their right to be free of excessive force had been violated by the way that ICE and federal agents had been deploying, like I said, tear gas, and what’s called less lethal munitions, meaning they’re not live bullets. They’re like paintballs, and these types of things. And a judge issued a TRO against that based on First Amendment retaliation, religious freedom retaliation, and excessive force, again, a preliminary temporary ruling.
So, she does, she sees that big picture, but then she goes on to say, what does regular forces mean? And she does an entire historical analysis that says regular forces was understood at the time of the enactment of the statute. The statute being relied on to mean the soldiers and officers regularly enlisted with the army and the navy.
And when you think about it, first of all, that the statute relied on is in Title 10 of the United States Code. Title 10 is all about the U.S. Armed Forces. That is what Title 10 is. It governs the U.S. Armed Forces. That’s why when we talked before about the different statuses, the state National Guard can be in, they can be state active-duty status. They can be Title 10, which means they are federalized, which means they are now part of the U.S. Armed Forces and the U.S. military. Or they can be under Title 32, which means they’re still reporting to their governor.
Andrew Weissmann: Yes.
Mary McCord: They can just help out and do some things that are federal missions. And so, Title 10 is all about the military. So, it’s logical like, use of regular forces and armed forces throughout the rest of the title is always talking about the military. It’s not talking about FBI or Federal Protective Services or ICE or the park police or any of these other federal agents.
Andrew Weissmann: Right. So that’s just fascinating where that may go, because I agree with you that. That I thought that was the first time I’d seen that picked up and that’s no knock on Judge Breyer, Judge Immergut, they’re all acting very, very quickly, but I thought that was a fascinating point. Obviously, this is going to wind its way up. One of these cases, if not all of them are going to sort of win their way up to the Supreme Court, it’ll be fascinating to see how that is argued.
Mary McCord: It is. And just before we break, and I know it’s time to break. She does, like I mentioned, even say, alternatively, even if it means other federal agents, you have not shown that regular forces under any interpretation —
Andrew Weissmann: Yes.
Mary McCord: — are necessary because you have not shown that the civil power has failed. She says the courts are open. The marshals are ready to see that any sentences of imprisonment are carried out, resorts of the military to execute the laws is not called for. It violates arguably separation of power. She goes on to say, —
Andrew Weissmann: Yes.
Mary McCord: — because there’s no independent source of authority that the president can point to other than this statute. And if the statute is not complied with, and this is kind of like what the judge in Portland did, right.
Andrew Weissmann: Yes.
Mary McCord: Then there’s no constitutional authority. There’s no statutory authority. It’s a constitutional violation.
Andrew Weissmann: And this very often happens, particularly at the district court level where a judge issues sort of alternative findings.
Mary McCord: That’s right.
Andrew Weissmann: Like essentially, you lose for this reason, but if I’m wrong on that, let me go to the next issue and roll that way. And it makes it stronger sometimes, but also allows the Court of Appeals to sort of, have all of the reasoning and all of the grounds and all of the fact-finding by the district judge. So those kinds of alternative rulings happen very, very frequently, particularly at the district court level.
Why don’t we take a break and then briefly come back and talk about what’s happening on the West Coast because Judge Immergut’s decision has been appealed and there was an oral argument on that, and we can sort of briefly touch on that and then turn to our next topic. There was a statement I wanted to get your reaction to because you know, at this point I can’t always say I’m shocked, but my jaw, it hadn’t quite clattered to the ground, but it was darn close.
Mary McCord: Yes. Yes. And that’s the Ninth Circuit argument of course that I briefly referred to a moment ago. So, let’s take a break and then get into it.
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Andrew Weissmann: Welcome back. So, Mary, there was an argument in front of three judges. It was the appeal from Judge Immergut’s temporary restraining order with effect to Portland. And there was one of the judges, Judge Ryan Nelson, who is a Trump appointee. And I listened to the argument, and one of the things he said, and I’m going to just quote it, because I was so interested in what you thought of this. He said, “what I’m struggling with is the president gets to direct his resources as he deems fit. And it just seems a little counterintuitive to me that the city of Portland can come in and say, no, you need to do it differently.” Unquote. So, reaction. By the way, do you think I read that in a completely neutral way?
Mary McCord: Yes, totally. So, as we were just discussing before the break, right, the Constitution and statutes are where the president’s authority derives, and the Constitution gives Congress, not the president, the power to call forth the militia. Militia being the National Guard. It gives Congress, not the president, the power to provide for the organizing and the disciplining of the militia. And that’s why Congress created, ever since the 1790s, the National Guard system through a series of militia acts over the decades. And at this point, the centuries.
So, if the president doesn’t have authority directly from the Constitution, which he doesn’t, he’s the commander in chief, but he’s the commander in chief, you know, of the military, not about the calling fourth of the militia, if he doesn’t have the power under the Constitution, it’s got to come from a statute. And the statute that he’s been using Title 10 Section 12406 is the statute that now three different district court judges have said he has not complied with.
Andrew Weissmann: I was just like, we were a nation of laws. The question is basically doesn’t the president get to do whatever he wants, so, who are you to tell him no? I have to say if that’s the way that the ninth circuit rules, I could see an en banc hearing coming up. The en banc being when a greater group of judges within that district hears the case, and it’s not left to three, because it just seemed kind of nutty.
Again, I think that there are real issues that can be debated. And we have talked about this issue of how much discretion the courts have to second guess the president, whether they should subject his decisions and his orders to at least a good faith requirement as the district judge had done. And those are weighty and thorny issues. And I’ve talked about where we come out, but this was sort of an unusual argument. So, there is no decision. We’re waiting to hear that, but this is maybe a very good transition.
Mary McCord: It’s a good segue to Professor Nelson’s new article, a very, very conservative academic.
Andrew Weissmann: We’ll put a link to it. It’s relatively short and it’s written, admittedly, it helps if you’re a lawyer, but it is written not as a lengthy, some might say turgid, law review piece. It is fairly short and written for sort of a lay audience. And it comes out of a new project that NYU is doing about democracy. So, we’ll put it in our show notes that if people want to read what Professor Nelson has to say, they will have it.
I’m going to turn it over to you, Mary. But let’s just for the level setting of this. Please remember that the reason it’s getting such attention is because it is coming from somebody who is a professed originalist. In other words, he believes in the original intent of the founders, he looks at the text of the Constitution where that is some ambiguity. He looks at what the framers were thinking about. What does the context tell us they were concerned about? And he is a widely, widely respected conservative jurist.
And so, that’s why this sort of has taken the legal academy by storm. And that means it is certainly going to be something that the Supreme Court justices are aware of. You know what, Nelson did clerk for Justice Thomas. And so, what is his basic point here?
Mary McCord: Yes. And also, just to add, to sort of his credentials, he has been cited by all six members of the conservative, sort of, faction of the court right now in various opinions and many times by Justice Thomas, but other justices as well. And that’s because oftentimes justices will look to academics who publish law review articles that most of the public doesn’t read.
Andrew Weissmann: Yes.
Mary McCord: But justices will sometimes quote from those articles when they are relevant and supportive of the justices’ positions. Because of course an academic who’s able to really dig into the history and of different constitutional issues has more sort of like time to put into that kind of work than most judges and justices who have a busy schedule.
So, he starts by saying, look, article two of the Constitution says the executive power shall be vested in a president of the United States of America. And this is essentially the vesting power that the federal government right now uses to support its unitary executive theory. Right? That pretty much all of the power, the plenary power of the executive branch is in the president. And frankly, that theory sort of elevates. I don’t think they’d say it this way, but the reality is it ends up elevating the executive over the other branches of government.
But what Professor Nelson says is the framers though anticipated that Congress would enact the statutes that create the offices and other positions that are in the executive branch, right? So, Congress creates departments and agencies, right.
Andrew Weissmann: And just to be quick, can I just, so people know, those are not created by the president. The president is not sitting there going, I’m going to create the Department of Transportation or the Department of Justice. Those are created by Congress.
Mary McCord: As part of their legislative power, as part of their power of the purse. Right? So, for every department agency exists, there is a statute going back to its founding, right, that created it and creates the different positions in it and can even determine sort of, like what those positions should do, what their authorities are.
Andrew Weissmann: Can I give you an example? When I was general counsel of the FBI and there was an issue about to what extent could we help state law enforcement and other people, I went back to the congressional authorization to see —
Mary McCord: Yes.
Andrew Weissmann: — what could we do because for an agency, those are the Constitution, in the sense we could only do what has been authorized. And yes, sometimes it’s ambiguous. Sometimes it’s great, there’s interpretation, but that’s what you look to. It’s not that the president can just be like, just do it. To paraphrase the night circuit judge who said, why are you getting in the way of the president?
Mary McCord: Yes. And the other thing that article one makes clear with respect to Congress’s powers is the necessary in proper clause, right? It allows Congress to make all laws which shall be necessary and proper for carrying into execution. Not only Congress’s own powers, but also all other powers vested by this Constitution in the government of the United States or in any department or officer thereof. That means including the executive power vested in the president, Congress makes the laws for that.
Andrew Weissmann: Can I just pull the lens back a little so people understand why is this coming up? And there is a school of thought that the president and the unitary executive theory means that after these positions are created and agencies are created that the president has unfettered ability to control what happens to them and can fire people at will.
So, the civil service wouldn’t exist that you don’t have to have good cause. We have seen that already operating where lots of people being fired. We’ve seen the Supreme Court actually bless that, at least temporarily, with respect to Ms. Wilcox.
Mary McCord: And Ms. Slaughter and so many different people, but not Ms. Cook, not the Federal Reserve Board Governor, that one is stayed.
Andrew Weissmann: So, there is this issue of like, what is the role of the president? He doesn’t have the power to appoint certain people. He can appoint them, but they have to go through Senate confirmation. The question is, can he just get rid of them at will whenever he wants, even though the Senate and Congress has to bless they’re being hired? It’s so much about what is the relationship of the Congress to the president and what has been in the ascendancy and chiefly from the chief justice, Chief Justice Roberts is this idea that the president has this power to fire at will anybody within the executive.
And I should say one sign of this. It’s like, here’s a little telltale sign as to how the chief justice thinks about this. In the Trump versus United States presidential immunity decision, he describes the executive branch as he says, well, the executive branch is the only branch of government, which is one person, but that is actually absolutely false to me. I read that and I was like, and that’s the problem. And this is an article about that is actually not the right way to look at it. The executive branch is headed by one person, but is not actually one person because guess what, Mary, you and I were in the executive branch and we’re people.
Mary McCord: That’s right. I count.
Andrew Weissmann: And our positions were created by Congress. And so, that to me is this tension that Professor Nelson is getting at. So, he is saying that it is far from clear if you look at the history, that this is what Congress intended when the Constitution was framed.
And can I just quote something that I thought was great and I’ll turn right back over to you. Which is when the first Congress confronted the same ambiguities in the Constitution. More than one member warned against interpreting the Constitution in the expectation that all presidents would have the sterling character of George Washington going on. As one member of Congress argued in 1789, we should not gravitate towards interpretations of the Constitution that legalize the full exertion of a tyrannical disposition.
Mary McCord: Okay. I am so bummed, because you totally stole exactly what I wanted to quote.
Andrew Weissmann: Thank God I got to it.
Mary McCord: Yes. That’s how he ends his essay. But to this ambiguity that you focused on, that is the ambiguity of, yes, there’s the appointments clause that allows the president to appoint officers, fine, with the consent of the Senate. And there’s nowhere in the Constitution that says anything about the removal power, right? And so that’s this ambiguity is pointing out, but he says in his view as an originalist, he does not interpret the vesting clause to be so broad that it allows the removal without any cause where the whole rest of the structure of the Constitution, as we’ve been talking about, gives Congress that power to create the departments and agencies and create the positions within them, put limitations on what they do or don’t do. And so, this is what leads him ultimately to the conclusion that you just quoted from. And you did skip over a —
Andrew Weissmann: I left it for you, Mary.
Mary McCord: Yes. You did skip over a kind of a key sentence in the middle that I think is important because I read this. Well, let me just read the paragraph before that and then jump to that one. He says, I am an originalist. And if the original meaning of the Constitution compelled this outcome, meaning that the president has this authority, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through proper processes. But both the text and the history of article two are far more equivocal than the current court, meaning Supreme Court, has been suggesting. In the face of such ambiguities, I hope that the justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations they choose.
To me, that was this professor, and I do not know him personally, going through first the history, and there’s lots we haven’t been able to discuss, the whole history and then having what I call the oh shh (ph) moment, which is we got to be worried about what happens with this expansive interpretation and our Supreme Court should be worried about it, right?
Andrew Weissmann: And you have leeway. He’s saying that your hands are not tied.
Mary McCord: Exactly. They’re not tied. And after then the sentence you read about the first Congress, and you know, not everybody might have the character, the sterling character of George Washington, his next sentence is, the current Supreme Court may likewise see itself as interpreting the Constitution for the ages.
No, a little side for me. Remember for the ages was Justice Gorsuch’s term when he said we are writing a rule for the ages and the immunity decision. They may see themselves as interpreting the Constitution for the ages, says Professor Nelson, and perhaps some of the justices take comfort in the idea that future presidents will not all have the character of Donald Trump.
But the future is not guaranteed. A president bent on vengeful, destructive, and lawless behavior can do lasting damage to our norms and institutions. And then he ends with the quote you read about being careful not to gravitate toward interpretations of the Constitution that legalize the full exertion of a tyrannical disposition. I hope Professor Nelson is going to file an amicus brief in the Slaughter case.
Andrew Weissmann: Yeah.
Mary McCord: This is about the removal of a member of the Federal Trade Commission. It is going to be argued in the Supreme Court in December. And we will see if the court decides to overturn 90-year-old Supreme Court precedent that says, yes, the Congress can impose restrictions on the removal of members of bipartisan boards of independent agencies.
Andrew Weissmann: Because what’s really at stake here is this whole idea of having career people, professionals steeped in professionalism and being career people and not doing things for political reasons. And that is why Congress has created positions where they say the president has lots of discretion to appoint people with the approval of the Senate, but doesn’t have absolute discretion to remove them without a reason and says there at least has to be good cause.
If the Supreme Court were to reject Nelson, you really sort of end up with a situation where we could see the end of civil service and go back to patronage positions and all of the corruption that that leads to. And if you think about advances in this country and the rule of law, that is a critical one. You know, Mary and I worked in the Department of Justice. I worked at the FBI also, and it’s so deeply felt within those institutions, or at least it used to be, and I think for many people, it still is, that you are acting in a completely apolitical way, and this would really be taking a real sledgehammer to that norm.
And I just so appreciate that Professor Nelson is saying, you know what? You can actually consider policy here and the wisdom of this because your hands aren’t tied. And you know, we’ve seen in the Trump immunity decision that when they were basing it on sort of policy considerations, in my view, they just completely blew it. And I know you and I have had lots to say about that and we’ll have lots more to say about it, but this is one where I really do encourage people to take or read. Trust me, it’s not as dense as it may sound.
Mary McCord: Yes, absolutely. Okay. Now that we’ve had con law, you know, 301.
Andrew Weissmann: I know. This actually was pretty unannounced. So anyway, thanks everybody for listening. Remember, you can subscribe —
Mary McCord: It was.
Andrew Weissmann: — to MSNBC Premium on Apple Podcasts and you can get this show and other MSNBC originals ad free. And you’ll also get subscriber only bonus content, like the latest premium episode of our colleague, the wonderful Nicolle Wallace and her podcast, ”The Best People.” And it features somebody who is really, really terrific. And that is the former Principal Deputy Director of National Intelligence, Sue Gordon. Sue draws on her deep knowledge of America’s intelligence apparatus to help understand the scope of the damage inflicted on our intelligence community by the Trump administration. So that is one, which I haven’t listened to yet, but I am definitely going to. So, as soon as you finish listening to ours, you should listen to Nicolle’s.
Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producer is Ranna Shahbazi, and our intern is Colette Holcomb. Bob Mallory is our audio engineer. Katie Lau is our senior manager of audio production. And Aisha Turner is the executive producer for MSNBC Audio. Without all of them, we would not have this podcast.
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