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Main Justice
100 Days of Hypocrisy
00:57:53
Themes of intimidation and flouting due process emerge as the Trump administration hits 100 days in office.
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- [00:00]
Adam Pally
Adam Pali here and I'm John Gabris.
- [00:02]
John Gabris
We're a couple actors and best friends who you may know as the host of the TV show 101 Places to Party before youe Die.
- [00:07]
Adam Pally
Now we're bringing you a comedic look at health and wellness with our new show, Staying Alive.
- [00:12]
John Gabris
We'll have guests like our friend actor.
- [00:13]
Adam Pally
Jerry O'Connell, ketamine therapist Dr. Steven Radowitz.
- [00:17]
John Gabris
Paul Scheer, Ego Wodem, Gillian Bell, Dr. Dolittle.
- [00:22]
Adam Pally
Staying alive with John Gabris. And Adam Pali is out right now.
- [00:25]
John Gabris
Get them a week early and ad free with SiriusXM podcast plus on Apple Podcasts.
- [00:31]
Unknown
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- [01:01]
Andrew Weissman
Hello and welcome back to Main Justice. It is Monday evening, April 28th. I'm Andrew Weissman. I'm here with my co host, Mary McCord. But it's a little weird because, Mary, you're in D.C. i'm in D.C. but.
- [01:18]
Mary McCord
We'Re not in the same room. We should have tried to be in the same room.
- [01:21]
Andrew Weissman
Exactly. We're in the same city, different locations. But it is great to be with you. We have a ton on our plate. I was thinking before we get into the substance that we're about to be at the hundredth day, and I think our discussion today is, I think, gonna be very fitting for that idea of the hundredth day. So before we get into that, we have to thank everybody, everyone who's listening, including the MSNBC producers and sound people and the whole team that supports us because one, they always. All of you, always.
- [02:04]
Mary McCord
We thank them always. That's right.
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Andrew Weissman
But we again this year. So we've only been on for two years. So our first year we won two Webby Awards. And this past year we learned we just won two Webby Awards. And it's just such an honor. One is voted by the judges and the other is voted by the people.
- [02:26]
Mary McCord
You. All of you listening.
- [02:28]
Andrew Weissman
Exactly. So thank you all very, very much. It is very gratifying to be engaged in this adventure and know that people are getting something out of it.
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Mary McCord
Yeah. Very exciting to get that and very appreciative. Just like you said. So back to our theme. We want to start with the news that broke Friday about a Wisconsin state court judge, Judge Dugan, being arrested, I believe in the parking lot of the courthouse on Friday morning as she was presumably going to work, arrested and actually by the reporting, actually handcuffed and charged with obstructing or impeding a proceeding before a department or agency of the US and concealing an individual to prevent his discovery and arrest. And we'll get to that. It all has to do with, with ICE seeking to make an administrative arrest arrest on a immigration warrant, not a criminal warrant of a person who was appearing in her courtroom that day. So we'll talk about that and then we will talk about a lot of the other immigration related cases. And I think the through line there is the lack of due process. And even when there is some process, the utter lack of evidence that the government is bringing forth in so many different arenas. We're seeing judges across the country all lament more than lamenting, really starting to get if words on paper could like have a voice. It feels like they're getting pretty testy, these judges.
- [03:58]
Andrew Weissman
And we're going to read some of that because it is language that you do not see, except when somebody is really going off the rails.
- [04:09]
Mary McCord
They've had it.
- [04:10]
Andrew Weissman
They've had it, really had it. And it will be the instances, not just the Abrego Garcia case, where the government has admitted a mistake. So you understand why there's due process. A case out of Texas that originated in Virginia is another example of that where it's going to be a really live example for people about why due process matters. Because when there was a hearing, the government fell flat.
- [04:39]
Mary McCord
They absolutely did. Absolutely did. So no wonder they didn't want to provide due process. And then we will close out with a discussion of what some people may have seen on the news or maybe thought what is the, what is this all about? And that is a change in the Department of Justice. We call it their media policy, something that Andrew and I were both very familiar with in our many years at the Department of Justice and for Andrew, also at the FBI, which governs when the prosecutors can use legal process, that means subpoenas, search warrants, all of the like to get information from members of the news media. And that has always been controversial because the news media likes to think that they are a fourth branch of government. They actually aren't. But it is something that does threaten, particularly under this administration, does threaten the freedom of the press. And we'll talk about that. And if we have time, we'll mention the fact that last week we wanted to talk about the mass exodus from the Solicitor General's office and we ran out of time. And this week reporting is mass exodus from the Civil Rights Division. The bottom line is a lot of people leaving the Department of Justice, a lot of career experienced people who've been there through many different administrations are leaving.
- [05:49]
Andrew Weissman
So before we turn to the arrest of the judge and what the criminal complaint against her says and what we think of all that, can I just give a little spoiler alert for our third topic with respect to the changing rules about when the Department of Justice will permit subpoenaing reporters or notes and documents from reporters? The memo from the Attorney General of the United States, Pam Bondi, dated April 25, 2025, begins with the following sentence. And I just think it's a good overview and another theme for this, which is abuse and hypocrisy. And I'm just going to read it, see if you can catch the hypocrisy here. This is the way her memo reads, quote, safeguarding classified, privileged and other sensitive information is essential to effective governance and law enforcement, unquote, pot, kettle. I mean, so it turns out, I.
- [07:03]
Mary McCord
Mean, I, I don't disagree with that. Do you?
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Andrew Weissman
No, it's like I was going to say, I think she forgot to change that intro language that might have been Attorney General Garland's memo in connection with what the events in Mar a Lago. I mean, it is really rich.
- [07:20]
Mary McCord
Ooh, boy. Once we get to page two, she clearly did not use Garland's memo. So let's not again, let's save it. Let's save it. People will come back to it. But actually, this is something of a good transition because one of the things that has annoyed me, among many things about the arrest of the judge in Wisconsin is the way that the attorney general spoke about it. And one of the things the attorney general did, and there's all kinds of, like, policy issues about not speaking about cases, you know, on TV and giving press conferences, except for in really extraordinary situations. But if I put all that aside for a minute and just talk about some of the things she said, one of the things she tries to argue is that this is so necessary to go after these judges who are impeding immigration enforcement and, you know, putting law enforcement officers at risk, ICE officers and other law enforcement officers at risk by what we're going to get into by maybe as alleged, trying to prevent the arrest of this person appearing in court. And I thought Weren't there some police officers put at risk on January 6th of 2021? I mean, I just don't think that this attorney general, this president, this vice president, this FBI director should ever get to say that without the response being, what about police officers on January 6? Because every single one of the attackers, including the attackers who violently beat law enforcement officers, got pardoned or their sentences were commuted or their cases were dismissed. All right, I'm off my rant.
- [08:51]
Andrew Weissman
So, Mary, I think it may be true that we've done this for two years together, because in my notes under hypocrisy. Yes, I had the exact same point. And so while we're sort of on the attorney general reaction to this and the government's reaction and the statements in the press and the way they handled it, why don't we cover that and then let's go into sort of what's actually alleged with respect to this judge. But as you said, the attorney general made these comments and made them about it. Now, a pending criminal case, the FBI director also used X, formerly known as Twitter, to do the same thing and then took it down because it was.
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Mary McCord
Before it was public. Right.
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Andrew Weissman
And at least to his credit, he took it down. But you know, that is also against dojo guidelines to have that kind of denigration of a defendant in a criminal case and prejudging that. And you know, in your day and my day when the rules still applied, you know, people got in all sorts of trouble for doing that. So you have that sort of reaction and then I think you have even the bigger, not just what they said, but I think it tells you and speaks volumes even big if, even if it was appropriate to charge this judge. Right. And we still don't know all the facts. But even if it was appropriate, the idea that you would do an arrest, as opposed to saying, as happens all.
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Mary McCord
The time, arrest with hand cases in the parking lot.
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Andrew Weissman
Exactly. That's just not how you handle. Do you know every single case in the Mueller investigation that people want to, you know, constantly denigrate in the magasphere, everyone self surrendered because there was not a sort of palpable risk of flight or danger to the community.
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Mary McCord
Right.
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Andrew Weissman
And so people are allowed to surrender to a field office to be processed and you don't engage in these kinds of perp walks. And so it tells you everything about what they're doing here and the message to judges and also to jump from this situation to suddenly the fact that judges around the country of all sorts of political persuas are loudly decrying what the executive is doing. To me, this is what we had expected, the war on judges, because they are pushing back. In the same way there's been a war on the media, a war on members of Congress. Anyone who's pushing back, it's an intimidation tactic.
- [11:31]
Mary McCord
And, you know, our good friend and listeners who's been with us for a long time will remember Judge Michael Ludig. He was quoted in the paper this morning saying, this is about intimidation. I'm not reading it directly, but it was that this is to scare judges into not one. I mean, putting aside that this particular arrest was over some things that she allegedly did to obstruct the arrest of this man this way, it was done, as you just described, with an arrest in the courthouse parking lot, handcuffs and everything, only to have the magistrate release her immediately when she was presented in front of him. But this is about scaring people.
- [12:05]
Andrew Weissman
Right? And that actually is the big story. I mean, there's a story about her and the charges and what happened. But the big story, the big takeaway, is the government's response, both what it's saying, which is improper, and the fact they actually did the arrest this way, which tells you everything. To me, that is, I think, why we're starting there, because that is really the story. And there is a violation here, and the violation that we know for sure is of the DOJ guidelines about how you're supposed to speak and not speak. Shall we turn to what's alleged in the criminal complaint?
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Mary McCord
Yeah, if anybody doesn't know, they're kind of like, what are you guys talking about? You've already talked for 10 minutes, and we haven't told the story. So let's tell the story.
- [12:52]
Andrew Weissman
Okay. This is a state court judge. She had a defendant showing up at a hearing before her on some misdemeanors.
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Mary McCord
Domestic violence charges, I think. Yes. You know, nothing to praise him for. I mean, this is at least as alleged improper and illegal and unlawful behavior.
- [13:10]
Andrew Weissman
Right. And apparently there were victims who were had appeared or alleged victims of what he was being charged with. And what happened was six agents, ICE agents, FBI, dea, come to the courthouse, and they are seeking to arrest the defendant. And there hasn't yet been a policy set by the chief judge in that courthouse as to exactly how it can be done. The government says in its filing that they had done a couple arrests in public spaces, but there hadn't been a policy yet. And so.
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Mary McCord
And people might be thinking, why do we even need a policy regarding where arrests could take place. And it's because the courthouses, lots of people are there. Victims show up there, witnesses show up there, jurors show up there. If this becomes a place where you have armed agents making arrests, particularly of immigrants, it becomes a very scary place for people to go. And you would really see, I think, a real reluctance of victims of crimes, witnesses of crimes, jurors, to want to go and do their civic duty if potentially, if any of them have immigrants in their families, or maybe they're immigrants themselves, or even if they aren't, and they're just worried about the dangerousness of the situation. So many courthouses have had policies about, we understand if you have an arrest warrant, but let's talk about where you can make that arrest so that it does not interfere with the proceedings in the courthouse.
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Andrew Weissman
Exactly. And the government had an immigration warrant. That's not a judicially, sort of like an Article 3 federal warrant, but it is a warrant.
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Mary McCord
It's a civil warrant. Right. To arrest for violation of civil immigration laws. And to your point, it's not signed by a judge. You don't have to even go in front of a judge, something that agents themselves can swear out a warrant.
- [15:05]
Andrew Weissman
And so they were trying to figure out how to do this. There's some back and forth with the deputy clerk that's sort of somebody who helps the judge and saying that there's sort of a don't do this in the courtroom. You should do it in the public space. The judge then learns about it and basically is saying, you need to go to the chief judge. There's some back and forth described with the chief judge, where the chief judge basically is saying, it's not totally clear the whole conversation, but basically in public spaces. But he does say there's apparently there's no policy yet, they're working on it.
- [15:41]
Mary McCord
Or something like that. Now, we get all this from the complaint filed by one of the officers doing the rest. If people are wondering, how do we know this, we're just taking this from what the government alleges.
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Andrew Weissman
Right. And that's in the complaint, the criminal complaint against the judge.
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Mary McCord
Right, Right. Not against the defendant who was to be arrested. Right.
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Andrew Weissman
And so the key allegation here is that the judge, when the agents come back, the six of them, and they at one point are in the courtroom, then they're out of the courtroom, they indicate that the judge sort of forcefully waived the defendant and his counsel to not go out the sort of public door, in the sort of front of the courtroom, but to go out a Side door. A side door that's used apparently by the judge, by jurors, by the marshals, the sort of court staff and jurors. And we don't exactly know the configuration. But while there's a private area, when you go outside that door, it then connects to the public hallway right here. The defendant and counsel do go out that door, but then go to the public space. And notably to me, they then are seen by at least one agent. They go down the elevator with one agent in the elevator is one of the federal agents. In other words, the judge doesn't secrete them into, like, a private elevator or a private space. They just go to the public space. And then when they get downstairs. And to be fair to the agents on this, if there was only one agent in the elevator, you could understand why the agent would not do an arrest with just one person there. And they say the agent is communicating to the other agent, saying where he is. And they then see the person go into the public space of the courthouse, go outside, and then it looks like. I mean, they describe it as he sort of tries to run, but the agents are there and arrest him. And so the issue is, by allegedly directing him or encouraging him to take this, or permitting him, actually is a better word to take this side door, is that sort of the obstruction of justice, which, by the way, continuing hypocrisy. Everyone will remember that obstruction of justice was. Two of the schemes that were charged in the Mar A Lago case were.
- [18:00]
Mary McCord
Obstruction, obstruction of an official proceeding. People will remember us using that phrase a lot last summer.
- [18:06]
Andrew Weissman
Yeah.
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Mary McCord
And the other crime, though, too, we should mention, which is concealing a person from arrest. Right.
- [18:12]
Andrew Weissman
Yeah. And the concealing is a little. I was looking at that going. Concealing seems a little tricky when the person goes from a public courtroom to a public hallway. And I do think that there's an argument that the judge's intent was to slow this down. But here's the conundrum, factually for me, and by the way, I'm putting on my former law enforcement hat, like, people should not obstruct justice. No, but this seems like a very, very weak case to me. And the reason is not just that the person went from public space to public space. In other words, it wasn't like secreting him at the private way, like, he clearly could get arrested. But I think you could imagine a very innocent explanation on the judge's part, which is, I don't want an arrest in my courtroom, and I don't want an arrest right outside my courtroom door where the public is going in and out. I don't want to have that scene with people being there who have to come in and out. Again, we don't know all of the evidence yet. We don't know what her intent is. But it seems like such a weak case that, you know, Mary, you and I would have said, is there a grownup in the room before you? Briegma's case?
- [19:23]
Mary McCord
And you know, it's particularly weak if you compare it, at least in my opinion. There was a case from the first Trump administration where a judge in Massachusetts did something similar. But the allegations are much more, I mean, if believed and this never had to be proven up in court. And I can say why. The allegations were that when she knew ICE was there to arrest a defendant appearing before her, the allegations are she had the defense counsel come up, ask the court reporter to go off the record, allegedly in violation of the courthouse rules, had a 52 second conversation in which the government alleged she concocted a plan with the defense counsel, then went back on the record, said, you may go down to the cell block in the basement with your client to talk to him, Mr. Defense Counsel. And once down there, the defendant was let out a called a Sally Port door, essentially a back door of the courthouse. And she was charged with similar offenses. She was not charged with the concealing somebody for whom there's arrest warrant. She was charged with the other version of obstruction of an official proceeding, the same one that was narrowed this past summer in the Supreme Court in the Fisher case. But there again and that case never went to trial because ultimately the US Attorney under the next administration worked out a deal by which the charges would be dropped and she would essentially turn herself over to the judicial discipline commission in the state. And she's facing allegations there that could result in her losing her license, I assume, and certainly her judgeship. But if you take that, those allegations are much more significant if they were proven than what we have here. So I think you're right that on the facts this seems to be a weak case with a lot of ambiguity. And then we've got the legal questions, which of course we can talk more about when we get to them. But those include things like does the statute even cover this? Like, is the procurement of a civil arrest warrant for an immigration violation where it doesn't even have to go in front of a judge, Is that really an official proceeding of a department or agency that you can be obstructing? Or is the arrest the effectuating of arrest itself part of a proceeding. So that's unclear to me. And then there are issues involving judicial immunity and you know, some federalism types of concerns and commandeering concerns which may or may not be dispositive. So the point, and I think you've made this numerous times since this happened, Andrew, that there's factual and legal issues here.
- [21:46]
Andrew Weissman
Yeah, absolutely. And you know, the Supreme Court has been no fan of the obstruction statute. I know that very well from over 20 years ago in the Arthur Anderson case where they changed the law and made it more restrictive. We talked about the Fisher case.
- [22:01]
Mary McCord
Yep.
- [22:01]
Andrew Weissman
There are a series of cases in not exactly the same statutes but where the court has concerns about the vagueness of the statute. And here if you think about the idea of does it really mean to cover which door you go out the courtroom and when it's still going to a public space that raises factual issues but even legal issues about is it clear enough? Because here's the hypothetical from the Supreme Court is what if she had just said don't do the arrest in my courtroom? What if the agents had wanted to do that under their view is what stops that from being charged. And those kinds of hypotheticals are the things that leads the Supreme Court to be concerned about abusive prosecutorial discretion. And it really goes back to. And it tells you why the idea of doing this very public arrest in cuffs of the judge is the story.
- [22:53]
Mary McCord
Yep, that's right. And you know what, actually this is a perfect segue to break because when you talked about vagueness, the reason vagueness is a problem is because it violates a person's rights to due process, which we're going to come and talk more about after the break. This kind of God.
- [23:07]
Andrew Weissman
Mary, you're good. You're good, Mary.
- [23:10]
Mary McCord
That's right. So anyway, let's go to break and then we'll transition into due process when we come back.
- [23:16]
Andrew Weissman
Sounds good.
- [23:25]
Adam Pally
With HubSpot's suite of AI powered tools, you can get more done way faster, speed up your lead generation and create attention grabbing, lead driving, quota crushing campaigns in an instant. Get started today@HubSpot.com AI Adam Pali here and I'm John Gabris.
- [23:43]
John Gabris
We're a couple actors and best friends who you may know as the host of the TV show 101 Places to Party before you die.
- [23:48]
Adam Pally
Now we're bringing you a comedic look at health and wellness with our new show, Staying Alive.
- [23:52]
John Gabris
We'll have guests like our friend, actor.
- [23:54]
Adam Pally
Jerry O'Connell, ketamine therapist Dr. Steven Radowitz.
- [23:57]
John Gabris
Paul Scheer Ego Wodem, Gillian Bell, Dr.
- [24:00]
Adam Pally
Dolittle Staying Alive with John Gabris and Adam Pali is out right now.
- [24:06]
John Gabris
Get them a week early and ad free with SiriusXM podcast plus on Apple Podcasts.
- [24:12]
Unknown
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- [24:47]
Andrew Weissman
Welcome back. Okay, Mary, lots to discuss. So in the due process vein, this week saw so many different types of immigration cases and so many ways in which judges are pushing back not just the Abreco Garcia case, who, by the way, I want to just keep reminding people, is in jail still today in El Salvador. In El Salvador, an admitted mistake by the government and he is still, as a result of the government's actions and now in action, sitting in jail with the government not doing anything that we know of to get him back.
- [25:27]
Mary McCord
Well, there is an amendment there because one of the reasons right now that the judge in that case stopped requiring the daily reports and paused the discovery, remember she'd ordered depositions is because the government filed a sealed pleading. The attorneys for Mr. Abrego Garcia filed a sealed pleading. The judge said in light of these sealed pleadings, which means the public doesn't see them, I'm going to pause the discovery. I don't know about you. I think that means the government is saying that it's doing something. Now, whether that something will actually facilitate his release from custody remains to be seen. But I can't imagine this judge pausing things if she didn't feel like things were moving in the direction that she wanted them to. What do you think?
- [26:10]
Andrew Weissman
I hope and pray that you are right. And my initial reaction was exactly the same as yours, Mary, that that must be what's going on. Like there's just so many times it was going to get yelled at by the court, be told it was wrong, including, you know, the Supreme Court, Judge Wilkinson, the district court. However, what gives me pause is there's no question in my mind that if the Trump administration said we want him.
- [26:38]
Mary McCord
Back to it, like it would be, he'd be here.
- [26:41]
Andrew Weissman
Exactly. But don't you think the flight is not that long?
- [26:43]
Mary McCord
Yes. Don't you think they want to play it out as though this was a big negotiation and then kind of get the credit for.
- [26:50]
Andrew Weissman
Here's the thing. Yes, they could be engaged in fraud and cruelty because not only it would be fraud and then the cruelty would be that we're going to keep in there longer to make it.
- [27:00]
Mary McCord
Yes.
- [27:00]
Andrew Weissman
So it looks like cover for this.
- [27:02]
Mary McCord
Yes. And to the listeners we are. I am engaged in rank speculation.
- [27:06]
Andrew Weissman
Yeah, me too.
- [27:07]
Mary McCord
Speculation.
- [27:08]
Andrew Weissman
Mary, tell us, where do you want to start?
- [27:10]
Mary McCord
Well, first I want to finish off that transition. The due process I was just talking about that was about the vagueness of the statute. That's because part of the due process clause basically says people have to know that what they're doing might violate the law. And if a statute's too vague, you don't know. And that's a matter of due process because you're not that first piece. You don't even know that what you're doing could subject you to criminal liability. The due process we're about to talk about now, that is a through line, not just through the Abrego Garcia case, but through many of the other deportation and immigration related cases. But beyond that is about the ability to have your day in court. When the government is taking something away from you. You get to go to court and say, no, you might lose, but you get your day in court. And that was what was made so clear by the nine justices who were all in agreement in the Alien Enemies act case that this was brought in the wrong place. When it was brought in D.C. it should have been brought as habeas in the different jurisdictions where the people were detained. But all nine, just that each of these people was entitled to notice that they were going to be deported under the Alien Enemies act. And the opportunity with enough time and in such a manner that they could go to court and challenge, at the very least challenge their being members of Trend Aragua and certainly also challenge more broadly the Alien Enemies Act. And I wrote about this also in an op ed that published actually in yesterday's physical paper but a few days before in the Washington Post, pointing out that even Justice Alito last weekend, I guess when he dissented from emergency relief overnight when people were being bused to planes. And we talked about this extensively last week, even in his dissent, you know, he said we shouldn't have done this on an emergency basis, but the executive needs to abide by the law, as we already directed, which referred to due process. And one of the points I made here is that due process exists to protect all of us, not just Abrego Garcia, not just the Venezuelans who are being accused of being terrorists. As part of trend, it also protects the law firms that have been blacklisted from engaging in their profession. It protects the universities who have had their funds cut off without following the procedures that the law requires. It protects in many of these cases we are seeing challenging the Trump administration's executive overreach right now. Due process is a part of that because there's been restrictions or utter deprivations on any type of process before the government deprives someone of rights or something that they have otherwise had and been entitled, entitled to under the law. And that nothing could be more clear on that than the memo that we're about to talk about from the attorney general.
- [29:50]
Andrew Weissman
So what I was going to do is I was going to read this seems to be the episode where I'm going to be reading from the quotes from Pam Bondi.
- [29:57]
Mary McCord
That's our theme.
- [29:58]
Andrew Weissman
And then I thought we would then talk about the Texas case because it's such a great illustration of why due process matters. And so, Mary, Your point is it's 9090 in the Supreme Court that these people are entitled to due process, a notice and a meaningful opportunity to be heard. So everyone remember that. That's the Supreme Court on March 14, 2025. I am reading now from a memorandum from the attorney general of the United States, Pam Bondi. And what does she say about the implementation of and it's guidance for implementing the Alien Enemies Act. That is for many of these cases, not all that is what we're dealing with. And this is what she says about this need for due process. The alien is not entitled to a hearing, appeal or judicial review of the apprehension and removal warrant. Everyone got that? It's on page three of her memo. It then is repeated verbatim with all of that making it absolutely clear that there is not to be a hearing for these people. So just to be clear, her memo is something that the Supreme Court has said is wrong, legally.
- [31:26]
Mary McCord
That's right.
- [31:27]
Andrew Weissman
That they're entitled to this hearing. Now, why don't we talk about the facts of the Sanchez Puertas case? It's a husband and wife. They actually get their hearing well after.
- [31:37]
Mary McCord
Their third time, right?
- [31:39]
Andrew Weissman
Oh, yeah.
- [31:39]
Mary McCord
I mean, they get hearings each time, but yes.
- [31:41]
Andrew Weissman
Yeah, they ultimately get a hearing. There's a long history and a tortured history. The government looks horrible in the way it and it's all recounted in the decision, but they ultimately get their day in court to say the issues of the Alien Enemies act, the issue that the judge deals with, he says, I don't even have to get to, is the statute legal? In other words, does it lawfully apply to them because there's an invasion or the gang is a part of the government? Says, I don't need to get to that. And I'm not dealing with that. I'm dealing with the issue of has the government proven that they're part of this gang. I'm going to tell you what I think the standard of proof is. In other words, that's a big part of deciding an issue.
- [32:27]
Mary McCord
Everyone says what he announces in his ruling.
- [32:30]
Andrew Weissman
Yep. He says, I'm going to tell you the standard of proof. I'm going to talk a little bit about the nature of the evidence because the federal rules of evidence comply, and then I'm going to talk about the evidence about her and him. The hardest part of this ruling is I can't tell you how many parts of it I underlined.
- [32:46]
Mary McCord
I know, me too.
- [32:47]
Andrew Weissman
So, Mary, what does the judge do here on those various issues, the issue of the standard that he applies and then how does he deal with the facts that the government or lack of facts that the governance presents?
- [33:01]
Mary McCord
Well, let me skip right to one of the key phrases. This court takes clear offense to respondents, meaning the government wasting judicial resources to admit to the court it has no evidence. Now, that was with respect to the husband, but it's pretty much what the judge said with respect to the wife.
- [33:19]
Andrew Weissman
As well, in case people want to look for it themselves. That is on page 32 with respect to the husband, where literally the governance physician is. Well, he's married to her. Right.
- [33:31]
Mary McCord
And even for her. And that's where the judge is like, are you kidding me? That's it. He's married to her.
- [33:35]
Andrew Weissman
That's all you've got, Guilty by association. Right.
- [33:39]
Mary McCord
But even for her, he finds basically no evidence. He says, government, what you've given me are just some reports based on multiple levels of hearsay hidden within declarations of declareance, meaning the person who is, you know, putting down the information, the report that was supposed to know the facts, declarens who have no personal knowledge about the facts they're attesting to. They're not the ones who interviewed Ms. Sanchez Garcia. They're not the ones who captured her allegedly making incriminating statements. They're not the ones who collected quote unquote intelligence and generated reports that contain quote unquote highly reliable and verified information. He says what is astonishing is that these declarants cannot even so much as identify what government official did receive the alleged information directly. They asked this court to accept their claims, going off of nearly nothing to substantiate their mammoth claims that the petitioner is a senior member or perhaps just a member, or maybe at least an affiliate of Trent Aragua. The court would not accept this evidence even in a case where only nominal damages were at stake, let alone what is at stake here.
- [34:51]
Andrew Weissman
So the other things that he points out is he says, you know, the government's all over the place on the facts in front of the court. They say that she is a senior member of tda and they tweeted about that. I mean, God knows what are they doing tweeting about at cg, the statements by Kash Patel and Pam Bondi when there are these pending cases. But now when they're in court, it's like suddenly she's not a senior member, she's possibly a money receiver and lookout. And they describe the changing testimony and so essentially it's like, which is it? You know, these are contradictory statements. Is this person a senior person or not?
- [35:34]
Mary McCord
And even then, what that was based on is what the judge says is people who don't have any personal knowled.
- [35:39]
Andrew Weissman
Right, Exactly. And it all comes down to that. She says 10 years ago, her first husband she thought was in the tda and she's like, that's. What does that have to do with like whether she is in it? And now 10 years later, and the court is so definitive on citing that this is really. You just don't have it. It's not. There is a kind of very strong language and, and cites to Judge Brinkama, who's a very well respected judge in Virginia who had had an earlier iteration in this case, saying, oh, it also said the facts are just not there. And so this judge is in sort of violent agreement that the facts just don't support it. And the court says, with respect to the standard that needs to be applied, the court says, even if it was applying just a preponderance standard, which means just, is it more likely than not that they haven't met it? And there's even if you applied a really low standard, but this is one where what the government is doing and its position in the Abrego Garcia case really plays into this because the court says, you know what? I'm looking at what the standard should be. The standard here, given how dire the consequences here of shipping somebody off to a foreign prison where God knows they may never come back. The court says, that the standard needs to be that it would rise to clear, unequivocal and convincing evidence. That's a standard that the court says the government must reach. Clear, unequivocal and convincing evidence. And the court just says it is not there. It is not there, even under a lower standard, and throws this out and says these people have to be released, both him and her.
- [37:30]
Mary McCord
And he says everyone in the Western District of Texas, anyone who is currently being held for deportation under the Alien Enemies act or might be, needs 21 days notice before they're deported. And that opportunity to actually have a hearing like this, I think at this point, he thinks it could be all of them for which there's no real evidence. And that, you know, he on his own said this is now extending to everyone in the Western District of Texas. So really, really serious stuff. And it's just one example of some of the, I think, really serious reactions that we've seen of judges in the last week.
- [38:09]
Andrew Weissman
Before we get there, I just wanted to read one other thing. I told you there was so much I underlined, but I just thought there was one thing he said that I thought sort of gets to our idea of due process and what's at stake here. And I think it resonated for me. On page 18, he says, while the president claims grave national defense concerns in its TDA proclamation and then says, quote, it would indeed be ironic if in the name of national defense, we would sanction the subversion of one of those liberties which makes the defense of the nation worthwhile and cites a 1967 Supreme Court case.
- [38:49]
Mary McCord
And that's due process.
- [38:51]
Andrew Weissman
Right, Exactly. So, Mary, we talked about Judge Brinkama, we talked about the judge here in Texas, but there was more. These are not the only two judges.
- [39:00]
Mary McCord
There is more. It turns out that somebody else was unlawfully deported to El Salvador and another alleged member of tda. But it was also a mistake because he had come here as a minor, undocumented minor, and as part of a court ordered settlement, he and other members of a class action of undocumented minors, all who have asylum petitions pending that court ordered settlement, that is that none of them could be deported until they had had their asylum claims, you know, finally resolved on the merits, through all of the due process they're entitled to, yet he was deported, same as the others, without that due process, in violation in the court order. And the judge says, you know, the government came in and said, well, that settlement agreement doesn't apply if you're a trend member. Well, the judge says, first of all that settlement agreement is a contract. It had no exceptions for members of Trend members that are part of being deported under the Alien Enemies Act. None of that. None of that was in the contract. You don't get to just devise additional provisions of this contract. And he also got no due process like everyone else that they've deported to even challenge whether he was a member of that gang. Remember, he came here as an undocumented minor. And the judge there says, like Judge Zenas in the Abrego Garcia matter, this court will order defendants to facilitate Christian's return to the United States so that he can receive the process he was entitled to under the party's binding settlement agreement. And remember, John Sinas ordered that for a Mr. Abrego Garcia after the Supreme Court said that, you know, the government needed to facilitate return.
- [40:43]
Andrew Weissman
And wait, she ordered one more thing?
- [40:45]
Mary McCord
Well, that's the best part.
- [40:46]
Andrew Weissman
I love this part.
- [40:47]
Mary McCord
The court further orders that facilitating Christian's return includes, but is not limited to, defendants making a good faith request to the government of El Salvador to release Christian to US Custody for transport back to the United States to await adjudication of his asylum application on the merits. In other words, just ask them. At a minimum, ask them. Just ask them.
- [41:11]
Andrew Weissman
I feel. I feel heard and seen.
- [41:13]
Mary McCord
Oh, gosh, I know.
- [41:15]
Andrew Weissman
So, by the way, this judge was. Who wrote this decision, was appointed by Donald Trump. But there's more.
- [41:22]
Mary McCord
There's more.
- [41:23]
Andrew Weissman
In Massachusetts, there's a case where the judge said that people are entitled to sort of appeal and their sort of final order of deportation. They're entitled to due process, and ordered the defendants before him to not remove anybody to hold them. And that was principally the Department of Homeland Security. And he orders that, well, what happens? The Department of Homeland Security appears to have simply transferred them to the Department of Defense. And a filing is.
- [41:57]
Mary McCord
Well, that's what they claim. So what's that? Let's say what physically happens. These people all get sent to Guantanamo Bay, right, Where DOD is running a detention facility, and then, whoop, suddenly they're not in Guantanamo Bay anymore. They're in El Salvador.
- [42:13]
Andrew Weissman
Right.
- [42:13]
Mary McCord
And when the judge says what happened?
- [42:15]
Andrew Weissman
Yes, right. DHS is told they can't do this. And they were in DHS custody, by the way, under agreements. I think even in Guantanamo, they're still in DHS custody.
- [42:27]
Mary McCord
That's the big point. I thought we were coming to. I've got the memorandum of understanding right in front of me on the screen. So they come into the court and they say, oh, not us, not Us. They were flown out on a Department of Defense flight where no DHS agents or employees were even on that flight. They never say specifically DOD made the decision or anything like that. But they're very kind of cagey there. It was a DOD flight. No DHS people on that flight. Kind of like, not us. Not us. Well, guess what? That memorandum of understanding. So when agencies agree to work together or departments, they will often enter in essentially, a contract of how it's going to work that makes clear that legal custody of those who are sent to Guantanamo Bay. Ias, they call them illegal aliens, remain in the custody of dhs. It's dhs, then, that is responsible for any transfers, releases and removals of those people, not dod.
- [43:22]
Andrew Weissman
Right. So DHS is clearly on the hook here, by all accounts, because they were in the custody, but before they got to Guantanamo. Mary, what we're talking about is that even at Guantanamo, they're in custody. So that they're transferring them to DOD is in violation of the court's order. But by the way, the court's order isn't limited to just dhs. It says. And not only can DHS not do this, but no one can essentially aid in a bet or conspire and engage in this conduct with them. So DOD is gonna have to say, I had no idea that there was this court order. And no one told me about this court order. I mean, this seems like, again, a blatant violation. And so stay tuned. But you know what? There's more. Should we.
- [44:09]
Mary McCord
There's many more, but last one we have to talk about.
- [44:12]
Andrew Weissman
Yes.
- [44:12]
Mary McCord
People have probably read about US Citizen children being. And I don't even like, deported is not really the right word, I guess. I mean, except they were deported. But, I mean. Well, I guess you could say deported's not the right word for anyone because they didn't get process in, only physically extracted. Physically extracted. Right.
- [44:30]
Andrew Weissman
And then just to be clear, they're physically extracted. And the people going to El Salvador, not only are they seized in this country without due process and flown out of the country, but it's not like they're then in London going to the theater. They're actually in jail.
- [44:47]
Mary McCord
Now, that is the case for the people we've been talking about so far, not for the children. So let's move to the children. Yes, but just to be clear on that. Yes. Everyone else we've talked about, right. It's not like, here goes, go, you know, make a life in El Salvador. It's like, no, you're in prison in El Salvador. These cases involve children whose mothers are being taken into detention and deported. And at least insofar as the allegations in the case that I've read in the memorandum order I've read, the mother allegedly by the government says, well, if I'm being deported, I want to take my child with me. So the government's position is kind of actually, to use the term I use, oh, they're not being deported at all. They're just, the mother said that she wanted to take the child with her and so we sent the child with the mother. Problem is, at least in the case I have up on my screen, there's a father, right? And the father had the child's birth certificate and the child tried to get into contact and the lawyers tried to get into contact with the mother and you know, with the authorities to say, hang on, hang on, hang on, this is a US Citizen child here with a birth certificate. And I guess there was some brief maybe contact, but not enough to do anything about it, not enough to stop the flights from taking off. And by the time they went running to the judge to get an order and the judge, you know, was quickly trying to resolve to keep this child here. What do you know? Judge says he gets the petition. He tries to get counsel for the government to get a hearing together so that they can speak to the mother, see if she really had consented to take the child with her. And then learned by counsel for the government, just less than an hour after he called the government to try to arrange this hearing, that a call with the mother would not be possible because she, and presumably the child had just been released in Honduras. So what the court says is in the interest of dispelling our strong suspicion that the government just deported a US Citizen with no meaningful process, it is ordered that the matter be set for a hearing on May 16th. In other words, government, you come explain yourself.
- [46:50]
Andrew Weissman
Two things. That judge appointed by Donald Trump, yet another just you get the continuous.
- [46:56]
Mary McCord
This is not partisan.
- [46:57]
Andrew Weissman
Remember, we started with 90 in the Supreme Court. That's why you're seeing or calling out who appointed these judges. This again, this is not the so called MSNBC crowd. This is not the deep state. These are people speaking up for due process of law. And these cases put meaning into it. Final beating a dead horse on this. When you want to think about like, does this make any sense at all? There's no reason for the rush. There's no legitimate reason. In other words, there is no reason if the people are in custody, there's no danger that's going on. It's not like a bomb's about to go off. This is all about wanting unilateral power. That is about acting through executive order, not congressional action. It's about not having people have their day in court, not having judges be heard. That, to me, is the theme of the hundred days. It's a theme of our discussion today is this idea of not unitary executive. Unitary government is really the theme of what's going on here. And there's so many ways to understand that. And I think kudos to the various judges who are sticking to their guns on this and insisting that is not who we are.
- [48:14]
Mary McCord
Yeah. Judge Dougherty says this directly. The government contends this is all okay because the mother wishes that the child be deported with her. But the court doesn't know that. Like.
- [48:24]
Andrew Weissman
Exactly.
- [48:24]
Mary McCord
I don't know that. You're just telling me that in court. That's what due press is about. Get in front of me. Let's talk to the mother.
- [48:30]
Andrew Weissman
Exactly. And go back to the March memo from Pam Bondi saying no hearings. No hearings. That obviously was in connection with the Alien Enemies Act. But if you think about the whole point of what we're talking about, it's the denial of due process, whether it's in the Alien Enemies act case or any other, there are real life consequences. They're real people. With that, let's take a break and come back and talk about something else that Pam Bondi has done, which is change the rules of the road within the Department of Justice with respect to to reporters and when they and their notes can be subpoenaed in investigations.
- [49:09]
Mary McCord
Sounds good.
- [49:18]
Adam Pally
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John Gabris
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Adam Pally
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John Gabris
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Adam Pally
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John Gabris
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- [49:50]
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- [50:41]
Andrew Weissman
So, Mary, let's talk about the Attorney General revising the media guidelines at the Department of Justice. I started us off by reading the first line, which is the safeguarding classified, privileged and other sensitive information is essential to effective governance and law enforcement. But this essentially changes the policies that the holder adm, you know, when he was ag, he had policies that Attorney General Garland actually tightened those even more on when you can actually subpoena somebody from the media or their documents. But this is now a new policy from Pam Bondi and essentially, what's she doing and what's your takeaway?
- [51:26]
Mary McCord
Yeah, well, I think a little background is probably necessary here because these policies have been controversial for years and years. I mean, when I was the criminal division chief in the U.S. attorney's office in D.C. there were cases where we had used legal process to get records of reporters in national security. Cases where we were trying to determine whether there was somebody in the government who had leaked, yes, classified information. And I shouldn't say not just classified, but information that would be particularly, particularly dangerous. Right. Serious or grave danger to US Nationals, US national security, US Interests in trying to determine who had leaked some of these things, things that put lives of, say, our covert agents at risk, lives of cooperators at risk. In one of these cases, that's exactly what was happening. And, you know, you're. You're cautious to do it. I actually have a journalism background hugely respectful of the free press. But sometimes when you're hitting up against a brick wall and you're trying to figure out who unlawfully communicated this information that put lives at risk, sometimes you just do want to get a hold of records of what phone numbers a journalist might have been making with phone numbers of people in the government who were the ones who knew the information. And I can tell you also in my experience, I think we talked about this a year or so ago and probably in yours, too, I've been the person that journalists and reporters have tried to call to try to kind of like, urge me to share classified information before. And I've often thought, you know, who goes to jail if I do that? Not you. I'm the one who goes to jail and I'm not doing that. It would also be wrong and blah, blah, blah.
- [53:05]
Andrew Weissman
Can I just say that on the competing interests, just, you know, when I was in government, you're sitting there going, God, it would just be so easy if we could just subpoena this stuff from, you know, reporter A, these sort of phone records or email records or if we.
- [53:19]
Mary McCord
From the phone company.
- [53:20]
Andrew Weissman
You don't even have to do that. Exactly. And so could we just get them and it's just going to short circuit this. But when you're out of government, you realize that this is like, you know, sometimes the medicine is worse than the disease and that that's exactly what happened. The issue is the chilling effect on reporters and the role that they're supposed to play and also the abuse that could happen when the government is using it improperly. The one thing I will say in this area is there's no, you know, I think these are all interesting efforts and it's, and they obviously have evolved. And so I do think it's a difficult issue. If Pam Bondi were doing this in good faith, if she didn't have all of the background that we just talked about, I might be saying, well, this is a different, it's not illegal for one, as opposed to the things we've been talking about. This is a policy difference. And if you could assume good faith and you could assume that there in fact was going to be clear oversight and good judgment being used, it's a different approach. I'm not sure I would do it, but that was sort of my general take.
- [54:30]
Mary McCord
Yeah. And I think that's where I was trying to get to with that background. So that, you know, under the Holder Department of Justice there were new, more stringent requirements put in place for when a prosecutor could seek to use legal process. It could be a subpoena. It could also be a search warrant. Right. You know, it had accepted for things like when the reporter is willing to provide it to you or when the reporter might be involved in an actual crime and other things like that. But it was a process to make sure that you couldn't just have prosecutors out there willy nilly, you know, subpoenaing reporter's records. Then under Garland that got, like you said, it got made to where basically you couldn't do it. You just weren't going to be able to even run it up the flagpole in important cases, unless in fact, the reporter was alleged to have committed a crime unrelated to news gathering. So, you know, hacked into a computer system to get the information. Something like that. And, you know, that I think some people might think went too far and made it too hard to get information where it might be warranted. So what Bundy has done, like you said, is backed off of that. Until we actually see the regs, her memo, it's not entirely sure exactly how it would match up to the policies before Garland or even under, you know, the Holder Department of Justice. But it definitely is easing up on what Garland did. And as you said, I mean, reporters on Friday were saying all kinds of things, and I don't disagree with them about the salt on the free press and things like that. And I think part of it is also an intimidation tactic, like so many things. But to your point, if we had better faith and trust in the government, it might not be quite as alarming. But here's what makes us lose that faith, because paragraph three, after the lovely and non controversial first sentence, you read Andrew, and some other not entirely controversial sentences in the first two paragraphs, we get paragraph three. However, under the Biden administration, elitist leaders in government weaponized their undeserved influence to silence perceived political opponents and advance their preferred and often erroneous narrative about significant matters of public debate. This weaponization included prosecutors trying to muzzle First Amendment speech criticizing the Biden administration, including through gag orders targeting not only President Trump, but also other criminal defendants such as Dr. Ethan Heim. The Biden administration also abused Garland's overly broad procedural protections for media allies by engaging in selective leaks in support of failed lawfare campaigns. The leaks have not abated since President Trump's second inauguration, including leaks of classified information. So here's where we're like, oh, boy. Okay, now I know what this is about. This is about weaponization.
- [57:14]
Andrew Weissman
Yeah. So some of the things that she says that are less controversial because it really is going to be like how this gets implemented. She does say, you know, this is not some going to reporters and going to their records is sort of a last resort, not a first resort that she's going to look to see whether there are other means have first been used. She's going to be looking to see, except in unusual cases, whether there's been an effort to negotiate with the news media and that before anyone would be arrested in the media, that that has to be approved by the Attorney general. Again, all of this, that reads a.
- [57:49]
Mary McCord
Lot like the policy before Garland.
- [57:51]
Andrew Weissman
Honestly Yeah, exactly. And so a lot of this comes with the context and the overlay, and particularly that paragraph on page two. And I have to say, we're sitting in the middle of Signal Gate, where the attorney general has said that she's not investigating at least the first part of Signal Gate because she sort of unilaterally determined that there's no classified information there, and it was inadvertent. I've already talked about the inadvertent part only deals with somebody on the Atlantic being on Signal. But the use of Signal and the dissemination of material on it was intentional. And the idea that it was not classified as something that has been very much challenged in news reports. I mean, I mean, let's get real. I mean, let's just be Granthams for a second. The location of where we're going to have military strikes, that's classified.
- [58:41]
Mary McCord
That's classified.
- [58:42]
Andrew Weissman
And so people are in jail now for leaking classified information. I'm certainly no fan of that, but here, it's hard to read this against that backdrop.
- [58:55]
Mary McCord
It's like several things we've talked about today. You know, don't talk about protecting law enforcement while you've, you know, let go all these people who attacked law enforcement. Let's not talk about protecting classified information while high levels of our government are using an unapproved, commercially available app to communicate classified information. The hypocrisy.
- [59:16]
Andrew Weissman
Mary, I'd love to say it's so great to be with you.
- [59:20]
Mary McCord
Yeah. I just wish there was some good.
- [59:22]
Andrew Weissman
Yeah, yeah, there.
- [59:24]
Mary McCord
This is the good is, hey, there is good judges. They are judges really doing their jobs, people bringing these cases, supporting the constitutional rights of so many. Again, it's not just, you know, immigrants like Abrego Garcia or Venezuelans. It's it's all of these cases. And judges are really stepping up, and let's hope that continues all the way up.
- [59:45]
Andrew Weissman
Judges of all political stripes, which is so important for people to understand. This is not a partisan issue. It's an American issue involving the rule of law. Mary, with that, thanks so much. And thanks to everyone for listening. And a note to listeners. Mary, you and I have another date this week.
- [60:06]
Mary McCord
This one in person.
- [60:07]
Andrew Weissman
Exactly. We'll be joining Ari Melber for an MSNBC special. I think it's at 7pm on Friday Eastern. It's featuring a legal review of the first hundred days of the Trump administration. So all the stuff that we haven't gotten to and some of the stuff we did, be sure to stay tuned. Mary, I look forward to seeing you in person in my city.
- [60:30]
Mary McCord
That's right.
- [60:31]
Andrew Weissman
And remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content.
- [60:42]
Mary McCord
To send us a question, you can email us@main justicequestionsbcuni.com this podcast is produced by Vicki Bergolina. Our Associate producer is Jamaris Perez, our Audio engineer is Katie Lau, our Head of Audio Production is Bryson Barnes and Aisha Turner is the Executive Producer for MSNBC Audio.
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Andrew Weissman
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Adam Pally
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John Gabris
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