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Main Justice
A Choke Chain
00:56:25
Andrew and Mary dive deep into the clash over the DOJ’s directive to drop the case against NYC Mayor Eric Adams.
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- [00:00]
Mariam Cord
Foreign.
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Andrew Weissman
Hello, and welcome back to Main Justice. It's Tuesday morning, February 18th. I'm Andrew Weissman here with my co host Mariam Cord. And Mary, I was going to say hello, but the first thing I thought of is the title. Main justice, the new title of this podcast which you had been prosecuting Donald Trump, could not be more apt for today's episode.
- [00:33]
Mariam Cord
Yep. No, you're absolutely right. Although when you say welcome to Main Justice, I kind of think, well, I wish we were welcoming people to Main Justice.
- [00:41]
Andrew Weissman
That is a little spoiler alert for the main thing that we're going to talk about. So why don't we jump right in? What are we going to talk about?
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Mariam Cord
Yeah. So obviously we're going to spend a lot of time today kind of dissecting things that people have been hearing about since really the day after we recorded last week, the things that have happened in response to the acting Deputy Attorney General, Emil Beauvais, directing that the case against Mayor Eric Adams, the New York City mayor, directing that that case be dismissed without prejudice. And we did talk about that directive in our podcast last week, and we talked about how it sort of said the quiet part out loud. Like, we want to hold this prosecution over his head by dismissing without prejudice so that he can essentially assist the federal government with their immigration enforcement initiatives, particularly in New York City, in case.
- [01:35]
Andrew Weissman
People are trying to figure out what is the difference between us, because we always are in violent agreement is you're like held over his head. And I have been on air saying it's a choke chain.
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Mariam Cord
Yes.
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Andrew Weissman
You know, this is, we both have dogs and it's a choke collar.
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Mariam Cord
It is.
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Andrew Weissman
So we're gonna definitely walk through sort of everything that's happened since then after that. And some breaking news as to a hearing tomorrow. So that's going to be sort of a big chunk of what we talk about. And then what else we got on our plate?
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Mariam Cord
Well, Trump's acting solicitor general has already requested that the Supreme Court take up a case. It's the first time we've seen one of the challenges to the many, many, many executive actions that have been taken in the last four weeks. It's the first time that the Trump Department of Justice has asked the Supreme Court to take it up. And that has to do with the firing of the. This is going to be so confusing. And we will straighten it out. The special counsel. But special counsel, we don't mean Jack Smith. He already is gone.
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Andrew Weissman
Not that special counsel.
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Mariam Cord
There is something called the office of special Counsel. It's really A. An internal executive department agency that handles whistleblower complaints and things like that. And it is headed by a person who is a political appointee. But it was always anticipated that that person, kind of like the FBI director, would extend sort of beyond just one term. They are five year appointments. And that firing is now something that the Acting Solicitor General of the United States has asked for the Supreme Court to take up because the district court had issued a temporary restraining order prohibiting that firing. So we are in the world of everything is a temporary restraining order or a preliminary injunction. Exactly.
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Andrew Weissman
And so glad that we have your primer on that from two weeks ago, because we're in TRO and PI layout.
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Mariam Cord
Exactly. Everyone must know those terms by now.
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Andrew Weissman
Yep. And then we're briefly going to just. Just flag some issues for people involving Kash Patel and other moves that are sort of on our radar screen. But, Mary, why don't we jump right in to the main thing? Because I know, just so people understand for you and me, Mary, what has happened in the past week is it's personal in this sense. It's part of who we are and our makeup, and it's why we went to the Department of Justice. But I want to make sure people understand you don't have to have been at the Department of Justice to have this feel personal, because I. To the extent that people feel like the rule of law is part of who they are and what it means to be American, that is the fundamental issue that is so upsetting about the events of the last week. With that, Mary, do you want to take us through sort of a TikTok? My students always tell me I can't use that word anymore as a verb. Good point. But.
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Mariam Cord
But we were using it this way long before TikTok was ever a social media platform. So I think we get to.
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Andrew Weissman
Yeah, I was using it when I walked barefoot to school.
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Mariam Cord
Yes.
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Andrew Weissman
In snow. An hour and a half each way. In snow. So.
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Mariam Cord
And to your point also, you know, I think sometimes I'm hearing from listeners about how all the news we talk about in this podcast is so sort of bad news right now. And can we bring some levity or some hope? And I will say the response by Department of Justice attorneys in both the U.S. attorney's office and at Main justice is what exemplifies, I think, true adherence to the impartial rule of law. And that's something to be very proud of. And we will get into that as we talk more about this. So here's what happened February 10th. That was last Monday. That's when Emil Bove, the acting.
- [05:08]
Andrew Weissman
That was four years ago, right?
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Mariam Cord
Yes, four years ago. Did the directive to the U.S. attorney's office, literally it started with, you are directed as authorized by the Attorney General to dismiss the pending charges. Is in US Versus Adams. That's what we talked about last Tuesday morning. Okay. Two days later.
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Andrew Weissman
But Mary, just to be clear, that is directing the sort of acting U.S. attorney in the Southern District to make a motion in court.
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Mariam Cord
That's right.
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Andrew Weissman
In other words, she can't just dismiss, she has to go to the court.
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Mariam Cord
That's right.
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Andrew Weissman
Judge Dale Ho is the judge who has the criminal case and this. So he has the authority.
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Mariam Cord
That's right.
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Andrew Weissman
Okay.
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Mariam Cord
But it was a directive straight to the prosecutors who had worked up the case.
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Andrew Weissman
Right.
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Mariam Cord
Who had built the case, who had indicted the case. Although I think the acting U.S. attorney, Danielle Sassoon, was not so much involved in the investigation. Prosecution of the case. Okay. And that's the one we've talked about, which was basically to move to dismiss without prejudice, to put the choke chain on the mayor to ensure that he. In fact, this got much worse when he went on TV with Tom Homan, the I guess, czar for immigration, who basically sat there and in my opinion, humiliated Eric Adams by saying, we're going to basically keep you on a short leash and make sure you're doing what you promised to do. And, you know.
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Andrew Weissman
Leash. Yes, I know. Yes, totally. Right.
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Mariam Cord
So February 12, we have the acting or interim U.S. attorney, Danielle Sassoon, write a letter to the Attorney General, Pam Bondi, explaining why this direction from the acting Dag ML Beauvais, directing her to move to dismiss the indictment against Mayor Adams is something that she could not do, consistent with her ethical obligations, consistent with what the Department of Justice, you know, binding guidelines for all prosecutors and Department of Attorneys requires. And she explained, I think in a. And we'll dig into this in eight pages, why there was no valid basis to seek dismissal. She couldn't do it. She sought to talk to the Attorney General, Pam Bondi, because Paul, by this time, of course, Pambani had been confirmed. She sought to discuss this with her and said if not, she's prepared to tender her resignation. Okay, so that's February 12th, February 13th, an eight page, really nasty memorandum, in my opinion. Not memorandum, letter from Emile Beauvais to Vituperative, unhinged. Yes.
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Andrew Weissman
I mean, it was. You remember when we talked about the language that we thought was unfortunate, that's sort of a polite term by Trump's counsel In various court filings.
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Mariam Cord
Yes.
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Andrew Weissman
And so when Todd Blanche and Emil Bove were filing things in Manhattan, we thought, this really is inappropriate language. And I remember, maybe naively, I was thinking, you know, it's possible when they become that leaders in the Department of Justice, they will realize they have a different role and that they need to be sounding and speaking differently. When you're representing the department.
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Mariam Cord
This is that. I think we talked about that on the podcast. Yes. That did not happen.
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Andrew Weissman
So, Mary, this is Exhibit A to our naivete.
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Mariam Cord
Yes. Yeah, 100%. Yeah. I mean, it starts out with, your resignation is accepted. This decision is based on your choice to continue pursuing a politically motivated prosecution despite an express instruction to dismiss the case. You lost sight of the oath that you took. Remember, he's writing this to Danielle Sassoon, when you started at the Department of Justice by suggesting that you retain discretion to interpret the Constitution in a manner inconsistent with the policies of a democratically elected president and a Senate confirmed Attorney General. And it goes on and gets worse. So this comes out the next day, basically.
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Andrew Weissman
Can I just say one thing that's wrong with that? There's so many things.
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Mariam Cord
Oh, so many things.
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Andrew Weissman
But one of the things is she isn't saying she's continuing it. She was resigning. So just as a practical matter, she herself was doing the honorable thing. If you cannot stomach what you're being told for the reasons she put forward, it's not an indentured servitude that she's under. She was not saying, I'm going to pursue it. She said, I cannot do what you're ordering me to do. And so I'm resigning. And so, I mean, this was just unhinged.
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Mariam Cord
Yes, absolutely. So that's the 13th, right? That's essentially, you know, it's the 18th.
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Andrew Weissman
So there's five more days.
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Mariam Cord
That's right. So, you know, Danielle Sassoon had offered in her letter to resign if she couldn't, you know, have a chance to talk with the Attorney General. The response was, bove, I'm accepting your resignation. She then sent an email saying she was resigning. Then the fallout begins. ML Bove says in this letter to her, I am now taking back this case from the Southern District of New York, bringing it to Main justice, to the Public Integrity Section, which is called PIN at Department of Justice. And here's a moment of levity. You may say the acronym for Public Integrity Section, wouldn't that be PISS and not pin? But guess what? They didn't want to go by piss.
- [10:14]
Andrew Weissman
So it's exactly, exactly. I know that. That's because I was at the Fraud Section. We were in the same building in D.C. and we're very aware of, like, acronyms, so pin. The Public Integrity Section.
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Mariam Cord
Yes. Right.
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Andrew Weissman
So just to be clear, he could remove the case in terms of the prosecutors on it. So he could say, I, as the Deputy Attorney General, are having the supervision of this case, and the team that's gonna be on it is now gonna be the main justice team and not the Southern District of New York prosecution team. But the case, just so people are aware, he cannot move the criminal case. The criminal case is still before Judge Ho. He has no authority to do that.
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Mariam Cord
That's right.
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Andrew Weissman
And so the case is still in New York before the same judge, but the team that's on it is now no longer anybody on the Southern District of New York. And it's now been assigned to the Public Integrity Section, public corruption cases. And that's what they do. They bring it against Democrats and Republicans. So.
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Mariam Cord
Right.
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Andrew Weissman
What's next?
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Mariam Cord
So a couple of other things that he did in this memo. He said, I'm putting everyone who worked on the case in the Southern District of New York on administrative leave, taking their electronic devices, I think he also said, taking their badges so they can't get in the building. And then he named two of those people. So at the same time he said, instead, we're taking over the prosecution, or really the motion to dismiss here in Main justice in Penn. That prompted one of those two attorneys who was specifically called out and named from the Southern District of New York to write, I think, a very pointed letter saying, you know, he explained that people can have different views about different prosecutions, et cetera, but this prosecution was a well founded prosecution. He had been the lead investigator and prosecutor on this case. And he basically said, if you can find anybody who's fool enough or cowardly enough to sign a motion to dismiss, you go do that. But I was never going to be that person.
- [12:11]
Andrew Weissman
Exactly. And as our listeners may know, both Danielle Sassoon and this lead prosecutor, both are very conservative by background. They clerked for very conservative judges and justices and justices. They have very conservative. One is their federal society military background. So there was no. You couldn't label them as some sort of deep state. This was really. They were saying out of principle, we cannot do this. And basically, just to make it sure, everyone understands, the lead prosecutor on the case basically said, you cannot use the Department of Justice in a criminal case as a way of coercing politicians to further your political Ends.
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Mariam Cord
That's right.
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Andrew Weissman
That was the point of the. Danielle Sassoon's point. And that was his point as well. That's sort of the big picture point. Okay, but what's next?
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Mariam Cord
So that happens, that prosecutor, his name is Hagan Scotten, that letter is sent. Meanwhile, as soon as the folks at Penn and in the Criminal Division hear that, you know this is now going to be put on them to handle the two leaders of the, one of Penn and one in the Criminal Division, they resigned. They didn't send letters like the letter that Sassoon or Scotten sent, but they pointedly resigned.
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Andrew Weissman
And to be fair, they also didn't have a lot of time. Danielle Sassoon could sort of. This coming. Yes. So there was no way for Public Integrity to sort of know this was suddenly going to be dumped on their lap, but they resigned. And just to be clear, because a lot of attention has been focused on the Southern District of New York, correctly and admirably. But in terms of what they did, but it's really important to know that what they were doing was matched by what was happening in the Criminal Division at Main justice and the Public Integrity Section at Main justice with people saying, I'm not doing this.
- [14:05]
Mariam Cord
Then, as it's been reported by the New York Times and elsewhere, Inel Beauvais sat down the two dozen or so prosecutors in the PIN section and gave them a limited amount of time and said, I need somebody to step up and be willing to sign a motion to dismiss. Now, we can talk about what all happens with this, but just let's be clear. He didn't have to have one of those people sign a motion to dismiss. I mean, he is at the Department of Justice. And ultimately, the next day, on February 14, he did email Bove, put his name and signature on the motion to dismiss that was filed. But what he did after this series of memos, he sat them all down. He said, I need somebody to step up. He left the room, apparently, or they left the zoom room. Gave them some time. And it has been reported that there was a lot of debate about whether the entire group of attorneys in PIN should all resign or whether somebody would go ahead and say yes to this. Ultimately, someone who was a real veteran of that office, a veteran of previous controversial cases coming up upon retirement, named Ed Sullivan, said he would sign this motion to really save and protect the other attorneys in the PIN section in Public Integrity. And that is what then happened. One of the acting deputies in the Criminal Division, as well as Ed Sullivan, put their names on the motion below their names, M.L. bove signed it and that motion was filed on Friday. So that's the 14th what has happened since then. There's actually been somebody in the DAGS office, I understand, who has resigned. I think there were a few other prosecutors who resigned, we've been told, but I haven't seen their names.
- [15:51]
Andrew Weissman
So I think there was a total of seven that resigned, whether from Southern District or from Public Integrity. As you said, there was somebody who was on detail, sort of temporarily assigned to the deputy attorney general's office on detail from sdny. Right, exactly. Who said, I'm out of here, went back to sdny. I want to make sure everyone understands this does not happen.
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Mariam Cord
This is not normal.
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Andrew Weissman
Yes, exactly. It is not normal. The last time we saw this, Mary, was in the Roger Stone case, and that would be Trump 1.0. And then the most notable time before then was Watergate.
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Mariam Cord
That's right.
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Andrew Weissman
We'll take a break right after this. But I just think I one thing that you talked about, the letter from the lead prosecutor that so it was terse and to the point. But one of the things he said about Tamil povey, he said, you know, you're wrong when you said I actually refused to carry out your order. You're actually wrong because my U.S. attorney didn't ask me to do it.
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Mariam Cord
Right.
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Andrew Weissman
And she essentially, she wouldn't have asked me to do it. And so I didn't actually refuse.
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Mariam Cord
That's right.
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Andrew Weissman
But I certainly would have.
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Mariam Cord
Yeah. And that's so important because to your point, she knew I can't ask the prosecutors in this office to do something that is unethical and she wouldn't ask.
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Andrew Weissman
And so with that, this is, you know, it's I knew this was going to happen.
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Mariam Cord
It's a table setting.
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Andrew Weissman
Yes. But one other quick table setting, which is breaking news today. Judge Ho in the Southern District of New York, the judge who oversees this case has in fact set a hearing for tomorrow at 2pm and we'll talk about that order and what he has asked for. And I will on this one, I'm not going to say pat myself on the back, but it's like I fully expected that he would want to know the answers to the questions that he posed in the order that he wants the parties to be prepared to answer. But let's take a break and we'll come back and talk about that and then do our bigger reflections on what's going on.
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Mariam Cord
Sounds good.
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Andrew Weissman
Hi, welcome back. So let me read the key part of Judge Ho's order issued today requiring the parties to appear tomorrow at 2pm it says that the parties shall be prepared to address, among other things, the reasons for the government's motion, the scope and effect of Mayor Adams consent in writing, and the procedure for resolution of the motion, unquote. So that really is key because there are various reasons that are put forth by Emile Beauvais in the submission. They are different than the ones that he has previously stated. They are also quite different and at odds with what Danielle Sassoon says are the reasons. And so there is a conflict that the judge could resolve because Eric Adams, his lawyers have said there's no quid pro quo. Emile Beauvais has said that there was no quid pro quo. In a footnote, on the other hand, Danielle Sassoon says that what happened at the meeting on the Friday before the directive to her was tantamount to a quid pro quo. That's the famous meeting where she says that her deputies took notes but were ordered by Emile Beauvais to give them to Emile Beauvais.
- [19:27]
Mariam Cord
That's right.
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Andrew Weissman
And confiscate them. Emile Beauvais has said he did that to prevent leaks. That doesn't make any sense to me because all it does is provide a contemporaneous record of what happened. It doesn't prevent leaks in any way, shape or form. So those notes are something that the judge could ask to see, but there could be a hearing, a factual hearing. And then there's this issue of essentially the judge saying, I want to know what you think the procedure is for resolution of the motions, which means that he's going to hear from the parties with respect to whether there should be a hearing or a factual hearing. Like, well, how. What's the procedure? And I think it's so responsible for the judge not just to say, we're having a hearing as opposed to, I'm going to let the parties be heard. And one of the questions for you, Mary, is not just your take on this order, but the judge is going to have before him two parties. He will have the government lawyers and he will have Eric Adams, the defense counsel there. They're in agreement. But the court may want to hear from, for instance, Danielle Sassoon or somebody who has got a different view as to whether this is proper to dismiss the case or not. And so, in other words, the conflicting evidence and the conflicting view of the law is not something that one of the parties will necessarily be presenting. And so there is some precedent for what a judge can do in that circumstance. And I wanted to sort of turn that over to you. Like, like, what do you think the judge's options are? And I don't need to ask you sort of what do you think he'll do?
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Mariam Cord
Right, right. So. And the reason this comes up is because Rule 48 of the Rules of Criminal Procedures say that the government may move to dismiss an indictment with leave of the court, which means, and you flagged this at the top of the episode, Andrew, the government can't just go in and dismiss and that's that and walk away. It's over. The leave of the court means the court has to grant it or deny it. And normally the reason is you don't want the government to be trying to take unfair advantage of a defendant. And, you know, if the defendant is not necessarily in a. Like to try to. Well, to do exactly what's happening here. You don't want the government to take unfair advantage by using a dismissal, particularly without prejudice, to put the chokehold or the choke chain on the defendant to have to Sword of Damocles or the Sword of Damocles to have to do something in return to getting that dismissal. And for example, here, I think Danielle Sassoon put it so perfectly in her letter to the Attorney General. Rather than be rewarded when Adams had come in and sought a dismissal from the Department of Justice, his advocacy should be called out for what it is, an improper offer of immigration enforcement assistance in exchange for a dismissal of the case. Although Mr. Bovet disclaimed any intention to exchange leniency in this case for Adams's assistance in enforcing federal law, that is the nature of the bargain laid bare in Mr. Beauvais memo. That's exactly the memo we talked about that came out the directive to move to dismiss the case.
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Andrew Weissman
Mary, can I just foot stomp on that? Yes, because one of the documents that has just been made public today is Adams's lawyers submitted something to Emile Beauvais last week saying why it is that they think the case should be dismissed. And they pointedly say, I'm going to read it. If Mayor Adams is removed from office, he would be replaced, at least temporarily, by Public Advocate Jermaine Williams, a frequent outspoken critic of Mayor Adams desire to protect New Yorkers by combating the migrant crisis. And it goes on again to talk about the fact that essentially Mayor Adams is the one who would be furthering Donald Trump's immigration policies. And to your point, we've actually then seen that where Mayor Adams has said, I am going to permit ICE agents to arrest people within local Jails here. And just to be clear, as New Yorker, that's against the law here. The mayor has no ability to do that. So the remarkable thing is you have a mayor currently under indictment for five felonies. He is out on bail, and he has just said, I'm allowing ICE agents to violate the law. He has no authority to do that. The law applies to everyone here in New York City.
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Mariam Cord
They can file administrative warrants, right. Civil warrants for immigration detention that can, you know, they can be prepared when someone is released from a detention center to pick them up on this administrative warrant. But that's very different than just opening the doors and saying, come right. All in.
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Andrew Weissman
Rolling over.
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Mariam Cord
Yeah, rolling over. Rolling over.
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Andrew Weissman
And so this is this idea that there's such an inherent conflict now with respect to his position that the person who is mayor is supposed to be representing the city of New York unconflicted. And one of the options here in New York is that we have a provision where the governor of New York can actually remove a mayor. It's never been done, but if it's ever going to have been done, it's here. And one of the things we're seeing is the way we talked about prosecutors resigning, the four top deputies, including the very top two deputies in that four have resigned.
- [24:55]
Mariam Cord
Deputy mayors, I should say deputy mayors.
- [24:58]
Andrew Weissman
Again, that does not happen. And so they see the conflict and they cannot be a part of it.
- [25:05]
Mariam Cord
Right. So all of that is my very long winded and your long winded both of us together. Way to get back to your question is why might Judge Ho want to hear.
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Andrew Weissman
Oh, yeah, right. That was the question.
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Mariam Cord
Yeah, it's my fault. I completely digress. Because really, this is why everything we just said is why he, I'm sure, has seen this Sassoon letter. He knows there are other interpretations of what is happening here, that this isn't all about the timing of these charges vis a vis the mayoral election, which, by the way, was like, the charges were more than a year before the mayoral election and many, many, many months before even the primaries. So they don't even come close to this unwritten policy of not taking any overt charging decision or bringing charges within 60 days of an election. We're way outside that.
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Andrew Weissman
And Danielle Session points that out as well. If you were going to have that be your policy, there were a whole bunch of other cases that you would be dismissing.
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Mariam Cord
Yes, that's right.
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Andrew Weissman
So it was just. That was just a complete make wave. Totally in the same way that one of the arguments was well, I'm. I'm hearing this is Emile Beauvais saying, I'm hearing that the mayor is having trouble getting classified information and seeing secured information that would make it hard for him to do his job. I mean, it's like, guess who's in charge of classified information? The President of the United States. So, like, that can't possibly be a reason. And can I just, for a moment, just talk about one of the things that Emile Beauvais is representing to the court? And by the way, one thing I found really interesting is the two career people who signed this didn't actually make representations. They kept on saying, and Emil Beauvais has said this, and Emil Beauvais has found that. So it's pretty careful in that the things that they're representing are just the anodyne things, like the mayor was indicted at this time, but all of the sort of reasons are put on Emil Bovet, which is what should be. But anyway, here's the key part. The acting Deputy Attorney General also concluded that continuing these proceedings against Eric Adams would interfere with the defendant's ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies. Federal immigration initiatives and policies. First of all, that is the quiet part out loud. So since when do you discontinue a case against a politician because it would interfere with their ability to govern? Under that theory, why ever have public corruption cases?
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Mariam Cord
Why is there any public correction cases?
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Andrew Weissman
Again, that's c E g, he just pardoned again, Rod Blagojevich, the he there being Donald Trump. So that rationale is one that I fully expect Judge Ho, who's one smart person, to be like, can you just walk me through how that applies here and not in every other case? Like, are you moving to dismiss the Senator Menendez case, which the Southern District of New York brought against this sitting Democratic senator from New Jersey? You know what? Any indictment's going to interfere with a sitting politician's ability to do something.
- [28:12]
Mariam Cord
It's by its very nature. Right, right. So all of this means what are the options that the judge has? I mean, he could very well appoint an amicus, appoint an attorney to represent sort of the other side of this, represent, I would say, the public interest. Because the law, in terms of when a judge reviews a motion to dismiss a criminal case, is it in the public interest to do so? And that includes even when the defendant consents to that, consents to the dismissal. And so someone, if neither the government or the defendant's lawyers, is going to make an argument for the public interest in maintaining the prosecution. The judge very well may appoint an attorney to do so. That attorney then could potentially say, you know, we should hear from Danielle Sassoon. We should hear from others. We should hear about, you know, what happened in this meeting where Eric Adams attorneys essentially pledged a quid pro quo if the case were dismissed against him. You know what? Dig into all of this. Now, I say all of that because that's what the public interest seems to require. That's what the rules allow. But it's still a very difficult thing, especially since the Supreme Court's ruling this summer that investigations and prosecutions are uniquely the province of the executive branch under the direction of the president. Remember, this ruling on immunity said that the president is absolutely immune for things that are within his core constitutional functions. They read that expansively to include all investigation and prosecution, and said he's immune from that. That's just talking about Donald Trump. But it relates here, because would it really ever be the case that a judge, over the objection of the government, really could say, I'm not dismissing the case, who would then prosecute the case? Does the judge appoint a special prosecutor? Now, we came very, very close to having to have this resolved back in the first Trump administration when Michael Flynn, the president's national security advisor, for a hot minute before he had to resign under a cloud.
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Andrew Weissman
Do you mean a New York minute?
- [30:26]
Mariam Cord
Yes, a New York minute? Yes. Hot minute. New York minute, yeah. He had to resign because it was revealed, essentially had lied about his contacts with the Russian ambassador, Sergei Kislyak. Before Trump was in office, he was the national security advisor. He had had conversations with the ambassador about asking Russia to just hold off on some things, hold off on responding to the sanctions that the Obama administration was putting on Russia because of its attempts to influence the election, because of lies about that to the vice president, who went on national TV and said, I've talked to Michael Flynn. He claims he never talked to the Russian ambassador. I could go on and on about that because I was at the Department of Justice and was involved in much of this. At any rate, he ultimately pleaded guilty not once but twice to lying to the FBI about this very thing. And then under Bill Barr and under Donald Trump, the government moved to dismiss the case against him again after he had pleaded guilty. The judge, Judge Sullivan, under Rule 48A, said, I think I want to hear, you know, a little bit of the other side on this, and I'm going to appoint a lawyer, an amicus to arg for the public interest here.
- [31:41]
Andrew Weissman
Right. It was former Judge John Gleason who was appointed to represent and give the court the other side.
- [31:48]
Mariam Cord
Yeah. So meanwhile, the Department of Justice took this up to the D.C. circuit Court of Appeals on a writ of mandamus, asking the court to immediately reverse Judge Sullivan and order that he dismiss the case. There was a panel decision that said, we will order him to dismiss the case because prosecutions are in the province of the Department of Justice. And the court then took that case en banc at the request of Judge Sullivan, but really at their own suisponte. Enough judges on that bench said, we want to rehear this. And they heard this case en banc. That meant all of the active judges sat and heard this case. They came back with a decision 8 to 2, saying, no, we're not going to direct that Judge Sullivan dismiss the case. We're going to let Judge Sullivan have a hearing. Right. Hear about the public interest. That's the hearing that Judge Gleason was going to represent that public interest. And then we never had to get a resolution of what would have happened if Judge Sullivan said, I refuse to dismiss the case because Donald Trump pardoned Michael Flynn.
- [32:53]
Andrew Weissman
And just for the avoidance of doubt, after there's guilty plea and their reaffirmation of the guilty plea, Michael Flynn did seek to withdraw his guilty plea. So that's the precedent. And what's interesting here is many people would ask, well, why doesn't Donald Trump, since he has the pardon power, why doesn't he just pardon Eric Adams? And then it clearly is out of the judge's hands because he's been pardoned. And the same way that you could ask, why is it the motion that the government made to dismiss without prejudice, not a dismissal with prejudice? And the answer is the same to both, which is, if you pardon Eric Adams or if you move to dismiss with prejudice so the case can't be brought, you do not have the choke collar you don't have because it's over. So this is all about leverage. And that is very much sort of like front and center as to what's going on here. And the idea of Judge Ho being very concerned, I would imagine, by what exactly is happened at that meeting. Is it what Adams's lawyers and Ama Bove say? Is it what Danielle Sassoon says, and what's the extrinsic evidence that could help prove that one way or the other?
- [34:06]
Mariam Cord
So, yes, I want people to think about what this could mean if a judge really can't deny a motion to Dismiss even when a judge thinks it's in public interest. And I'm not saying he can't. I'm just saying when you think about what the Supreme Court has said about the absolute core executive function of making decisions about investigations and prosecutions, I am very skeptical that our Supreme Court would uphold a judge saying, I'm not going to grant a motion to dismiss where the defendant is agreement with it, because who would be the prosecutor? Now, I can make up other arguments on the other side, but just think for a minute, if that's the world that we are in, what we've seen here, this type of leverage, right. Bring a prosecution, extract a benefit for the administration, then offer to dismiss that without prejudice, to come back later to see if that benefit has been, you know, achieved. That is what you would be opening the door to. And I think that is something that is so flies in the face of the rule of law. As Danielle Sassoonin said in her letter, this type of quid pro quo is in violation of ethical rules by the, you know, state bar associations. It's in violation of ABA model standards. It's in violation of the Justice Department binding guidance sense. It's not okay under any way ever of looking at the rule of law in this country.
- [35:33]
Andrew Weissman
Absolutely. And if you put it together with the language in the presidential immunity case that the government can apparently bring sham prosecutions and the president is immune from that, you put that together with this idea of using it to extort a person.
- [35:48]
Mariam Cord
That's right.
- [35:48]
Andrew Weissman
I mean, this is Russia redux. And I would say not even Russia.
- [35:53]
Mariam Cord
It'S worse, but there are potentially other options. Right, Andrew, which you've written about today in Just Security, what is another option?
- [36:01]
Andrew Weissman
So my piece is about, if this case does get dismissed without prejudice, is there something that can still be done? And it turns out, as we saw, the Manhattan district attorney has already, in connection with the Trump cases, stepped into the breach and brought that case when the feds faltered. And so there are state analogs, actually really clear ones, to the five felonies that Adams has been charged with federally. And so the Manhattan district attorney has the ability to investigate, and of course, potentially, if he thinks it's fair to go forward and ask a grand jury to charge at the state level. And I think, Mary, we've talked about this, but writ large, I think this is a good lesson for what people really need to be expecting during these four years, which is state prosecutors and state AGs picking up the slack and trying to impose the rule of law in A whole range of things. We started by talking about public corruption cases kind of being dead, but there are state prosecutors out there and that, I think is where we really have to look. I'm not going to get into all the details, but essentially I talk about the fact that the DA's office really does have an option here, if the case is dismissed, to go forward and bring this at the state level. DA Bragg will be accused of all sorts of politicization, et cetera. But you know what? Kudos to him in this case. To me, it would be taking up the baton that was sort of handed to him by Danielle Sassoon and so many other people within the Department of Justice, including the FBI, because I think one really wants to look at all of this as a big picture that we're seeing so much pushback from so many different parts of the department, department to what they perceive as, and I think correctly as sort of lawless conduct on the part of the administration.
- [37:56]
Mariam Cord
Yeah, we shall see. We will definitely be able to report more on the hearing when we meet again next week.
- [38:02]
Andrew Weissman
So the link to the piece that I wrote for Just Security is in our show notes, in case anyone wants to be super nerdy and read that.
- [38:09]
Mariam Cord
And then we can all figure out later, you know, if it comes to pass, we can call it a prophecy.
- [38:13]
Andrew Weissman
I like it. Oracle Weissman. Seems like a good title.
- [38:16]
Mariam Cord
Yes. What have I stepped into? My goodness. Okay. Okay. Shall we take a break then? And then we'll talk about what is up in the Supreme Court right now.
- [38:23]
Andrew Weissman
Sounds great. Merit. Let's talk briefly about what is in the Supreme Court because this case, I think, is very much a harbinger with respect to so many mass dismissals that we're seeing within many, many different agencies. Agencies. As you said at the outset, this has to do with the head of the Office of Special Counsel. And the issue is whether the President has unilateral authority without cause to dismiss him or whether Congress is entitled to put any sort of restrictions on that, whether it's procedural restrictions, whether it's substantive. In other words, for cause that you have to articulate some reason. Is there that balance? We talked a little bit about this issue previously and there is obviously the Supreme Court decision we just talked about about sort of whether this is exclusive and preclusive within the president's power or whether there is some joint overlapping jurisdiction. I'm going to give you my spoiler alert. I don't understand where Congress is funding the position and they have the power of the purse that they don't have some ability, like how this could possibly be exclusive and reclusive, that they can't say if we're going to be creating this agency, if we're going to be doing this, we want to have some ability, including like, is the Supreme Court going to say you can't even have oversight hearings? I mean, it can be carried to an extreme. It's like, no, you just have to pay the money, but then you can't look behind the screen as to what you paid for.
- [40:13]
Mariam Cord
Right, right. And of course you're referring to the spending power. Right? That's Congress's constitutionally committed power under Article 1, the power of the purse as we so frequently call it. So this case is interesting because it's really sort of a continuation of, you know, a series of cases where the Supreme Court has been very open to arguments that the executive has the power, the executive, meaning the president, to fire heads of agencies, including heads of independent agencies, even without cause. Now just to level set, we all know that he can fire his cabinet officials, right? Without cause. These are these pure political appointees that are part of his cabinet that actually enforce executive power. Then there's this whole other category of agencies. They're not part of the legislative branch, so they're part of the executive branch, but they're made to be independent agencies. And they're made to be independent agencies purposefully by Congress, by statute and funded by statute to your point, so that they will have, as the name suggests, some independence from the politics of whomever is in the White House. So some of these are agencies that have multi member commissions in the top and oftentimes these are bipartisan commissions with half of the commissioners are Democrats, half the commissioners are Republicans. And then sometimes there are single head independent agencies. And one of those is this Office of the Special Counsel. Those are people who Congress has written into the statutes authorizing and creating these agencies, has written into the statutes that they can only be fired the head of the agency for cause like malfeasance and a corruption and those type of things. Right. Not just because the President wants to fire them. I will say historically it hasn't only been presidents of one party who've bristled at this restriction on being able to fire the heads of independent agencies. So this is an issue that has something of a nonpartisan history to it. This issue of a President not wanting to feel constrained that they can't fire somebody that's ahead of an independent agency. It's something that, as you just indicated in the immunity decision the court reiterated that the power of removal is a core presidential power. And it's something that over the last just really a few years, 2020 and 2021, the Supreme Court has held that where we are talking about single heads of agencies, they can be fired. The CFPB was the first and then the Federal Housing Finance administration was the second. In decisions in 2020 and 2021 where the Supreme Court said the exceptions we've recognized where the President doesn't have the power to fire without cause, all involved either multi member commissions as the heads of the agencies, bipartisan commissions where we've upheld the four cause requirement, or inferior officers, not the primary heads of agencies, but inferior officers. And that was in the context of the old Independent Counsel act, which allowed for independent counsels, kind of like the special counsel Jack Smith, which is the what that process turned into after the Independent Counsel act expired. So they've said we only have two exceptions to the President having plenary authority to fire at will. And those exceptions are multi member commission and inferior officers. That's what they said in these more recent cases. But they left open the possibility of the Office of Special Counsel, again, not to be confused with a Jack Smith or a Rob her type of special counsel, but the Office of Special Counsel over essentially the agency that hears whistleblower complaints, it hears appeals of employees who think they were fired in violation of the Civil Service Reform act. To go to your point of mass firing.
- [44:03]
Andrew Weissman
And it's also responsible for the Hatch act, which restricts what government employees can do that's political in nature, to keep it outside of politics. That's very famously Trump's chief of staff in Trump 1.0 said, oh, no one really focuses on the Hatch act anymore.
- [44:20]
Mariam Cord
Yes.
- [44:21]
Andrew Weissman
Which isn't true in any normal regime. One really quick way, I think of the difference between the special counsel like Special Counsel Mueller and her and Jack Smith and Office of the Special Counsel, the Office of the Special Counsel that you're talking about, Mary, that's a separate agency.
- [44:37]
Mariam Cord
Right.
- [44:37]
Andrew Weissman
The Special counsel's that everyone sort of knows, you know, because of how much public attention that's within the Department of Justice.
- [44:45]
Mariam Cord
Right. Appointed by the Attorney General.
- [44:47]
Andrew Weissman
Right, Exactly.
- [44:48]
Mariam Cord
Not by the President, by the Attorney General.
- [44:50]
Andrew Weissman
Exactly. So that's all sort of things within the department they do investigate. They have criminal cases. That's all within doj. This is something just outside of the department and it's a separate congressionally created agency.
- [45:01]
Mariam Cord
That's right. So in the case from a few years ago involving the head of the Consumer Finance Protection Board, cfpb. That is one where those who argued that the head of that agency should not be able to be fired without cause pointed to the Office of Special Counsel, which had been headed by a single officer since 1978, and sort of said, hey, the head of CFBB should be treated the same as the special counsel. And what the court there said is that essentially we don't have to decide about special counsel right now. But in any event, the osc, which is how they refer to the Office of Special Counsel, exercises only limited jurisdiction to enforce certain rules governing federal government employ and employees. It does not bind private parties at all or wield regulatory authority comparable to the cfpb. So what they've been doing in the past is drawing this distinction between sort of like, does the independent agency have investigative and sort of prosecutorial functions as opposed to just sort of adjudicative legislative functions. I know that all sounds like a big bunch of gobbledygook, and those distinctions have honestly kind of collapsed at this point. But the Supreme Court did said in 2020, in the case I'm referring to Sela Law versus CFPB, say Office of Special Counsel. There are some things different about that. Well, that is the issue that is now in front of the Supreme Court, although on a procedurally weird mechanism that may fail, the District Court issued a temporary restraining order forbidding the firing of the special counsel. The government took that up to the D.C. circuit, which said, you can't appeal a temporary restraining order. There's only a few very, very limited circumstances where that's the case, and this is not one of them. In other words, let it play out through preliminary injunction. You can appeal a preliminary injunction. Then the government went up to the Supreme Court and says, basically, you should make an exception here. You should review this even on an appeal from a temporary restraining order. And they did exactly what we would expect them to do right on page one in the second paragraph of their motion, their application to vacate, the order issued by the District Court, and a request for an immediate administrative stay. They say this case involves an unprecedented assault on the separation of powers that warrants immediate relief, as this court observed just last term. And then they quote from the immunity decision, quote, congress cannot act on, and courts cannot examine the President's actions on subjects within his conclusive and preclusive constitutional authority, including the President's unrestricted power of removal with respect to executive officers of the United States whom the President has appointed. So they're going straight to that immunity decision. They're Going hard and wanting to again, expand the executive's authority here.
- [47:56]
Andrew Weissman
Yeah. Again, the issue is going to be what is the end point? Do you get rid of all civil service rules and why or why not? What are the distinctions going to be? Is civil service only for lower level people or is it for higher level? Does it depend on the nature of the agency? What is going to happen to congressional oversight? Are they allowed to have congressional oversight if they're not allowed to actually affect in any way, shape or form what the department's doing and deciding what they're going to fund? Where are they going to draw the lines? An issue I've always been very interested in is there's a body of law that criminal defense lawyers use and it's good law still, which is, has someone brought a prosecution for selective reasons? And you can bring a claim of selective prosecution and they're sort of related claims. Is that something that's no longer good law because the court has no power to oversee that because this is exclusively and preclusively? Or is the court going to say, no, no, no, it's exclusive preclusive as to Congress, but we didn't mean it to apply to us. Yeah, right, right. All of these are very much open the door. And it's worth noting that this is an area where Amy Coney Barrett, in her concurrence, is a person to keep your eye on because she said the area of presidential power that's exclusive and preclusive is limited within the Constitution. There's nothing within the Constitution limited by Congress's powers, right? Yes, exactly. And the court's powers. This goes back to of Justice Jackson in the Youngstown case. This is now very much Law School 2.0, but it really deals with the Supreme Court being myopic about sort of what's going on in terms of executive power. And that's the way I'm seeing this case. It's like another test of where the Supreme Court is going to draw the line. The presidential immunity decision ended up being a decision where they gave gave more to President Trump than he asked for.
- [49:57]
Mariam Cord
That's right.
- [49:58]
Andrew Weissman
And so I understand why if you are the White House counsel or if you are the Solicitor General of the United States, you're going to be like, we should take a shot on this. If you're not feeling any restraint in terms of what should be the law.
- [50:13]
Mariam Cord
Yes. Now, just so people don't panic at this moment, I mean, I agree that this is what we're going to see as additional cases get up to the Supreme Court. Like, where are they going to draw the lines on executive power? This case could be written really narrowly. And I think in some ways, this is why the acting Solicitor General is trying to take this one up as one of the first opening gambit in front of the Supreme Court, because they probably have a stronger argument here, at least based on the existing recent precedent and the current makeup of the Supreme Court, a stronger argument than they will in many other cases. And so the court could definitely rule on this at some point. I don't know that it will take it as an appeal from the tro. I think that's an important procedural thing. They might say, we're not taking this now. You need to go back and, you know, deal with this in lower courts. And we'll take it potentially in due course. Come back to us, you know, in due course. If you want to try again, we'll find out what the other side is just going to say. They're due to respond to this emergency position, I think, by 2:00 tomorrow. So lots of things are happening tomorrow. But they could write it narrowly and it wouldn't necessarily open the door to all these other things. We are definitely, though, going to be seeing the government pushing through the Solicitor General's office more and more expansive executive authority, because that's exactly what's being pushed in the lower courts right now. Okay. So we are now going to not be able to get to all the other things that we had hoped to get to. I do want to flag one thing before we end, though, because it's likely to happen this week.
- [51:38]
Andrew Weissman
I bet you it's got two words for you. Kash Patel.
- [51:42]
Mariam Cord
Kash Patel.
- [51:43]
Andrew Weissman
How did I know?
- [51:43]
Mariam Cord
Yeah.
- [51:44]
Andrew Weissman
It's like these are things so dear to our heart.
- [51:46]
Mariam Cord
Yeah. I mean, we're talking about the Director of the FBI, back to our core careers at the Department of Justice, working hand in glove with the FBI, knowing and respecting many of those agents, even when we would disagree with them at times. And so since, you know, we talked last about him, there's been some, I think, some pretty significant revelations. Whistleblowers have said that, you know, they were in meetings with Emile Beauvais when Emile Bove was directing that eight of the top FBI supervisors be fired and that the lists of those who worked on J6 be brought forward so that they could be considered for personnel actions, including termination. There are notes from that meeting that said that this was coming from Kash Patel, this directive to do this. And these meetings were happening at the same time Kash Patel was testifying before Congress that he didn't know what was happening over at the FBI. He didn't have anything to do with any firings over there. And so there's a real question about whether he told the truth. There's also been a lot more revelations about his connections with foreign corporations, including a company that he continues to hold stock in even as the potential incoming FBI director. That is a Chinese company that has been accused of by Republicans and Democrats here of engaging in child labor practices and things that violate our laws. And his connections to not only that company, but other consulting that he's done that we don't have any transparency into for foreign governments. These are all things that are coming out out that the Senate really does need to address before they hold a vote. He's been reported out of committee, but still the Senate as a whole body has an opportunity to get more answers about these things.
- [53:35]
Andrew Weissman
Absolutely. Let's just go to the big picture, which is the acting deputy attorney general has said and has now received a list of thousands of people for heightened scrutiny with respect to employment decisions. The category for those thousands of names was that they worked on the January 6 cases. By the way, footnote here stated Emile Bove.
- [53:58]
Mariam Cord
Yes.
- [53:59]
Andrew Weissman
The acting deputy attorney general and wanted to lead it. And Kash Patel has said under oath during his confirmation hearing, has said that he would apply all FBI internal policies and procedures with respect to those kinds of employment decisions. Well, that is something this would not be allowed. And I can tell you that as the former general counsel, there's no such thing as just rounding people up for no good cause laws imposing these kinds of restrictions and without due process. So you would want to have further hearings on that and to get answers. So let's. That is a great way to end. It's something to keep your eye on this week. Obviously, there's the Supreme Court, as you talked about, Mary, that's also happening this week. And in case there isn't enough to keep your eye on tomorrow, there's the hearing before Judge Ho in the Adams case case. And that is just the small bit of what we have talked about on this podcast. So there's a lot to keep your eye on. And Mary, thank you so much. I learned a lot from you and thank you for keeping it sane this week.
- [55:06]
Mariam Cord
I don't know how sane I am. I'm barely, I'm barely managing there, but okay.
- [55:11]
Andrew Weissman
And, and by the way, listeners, if you heard that from Mary, that gives you it that is like a perfect, perfect temperature gauge for like the level of crazy that we're dealing with. So thanks for listening. Remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free, as well as subscriber only bonus content.
- [55:36]
Mariam Cord
To send us a question, you can leave us a voicemail at 917-3422 or you can email us at mainjusticequestionsbcuni.com this podcast is produced by Vicki Bergolina. Our associate producer is Jamaris Perez. Our audio engineers are Katie Lau and Mark Yoshizumi. Our Head of Audio Production is Bryson Barnes. Aisha Turner is the Executive Producer for MSNBC Audio.
- [56:06]
Andrew Weissman
Search for Main Justice Us wherever you get your podcasts and follow the series.