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Main Justice
An Unrecognizable Justice Department
00:53:18
Ghislaine Maxwell questioned by Todd Blanche, sanctuary cities continue to clash with Trump. Plus: a misconduct complaint against Judge Boasberg.
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- [00:00]
Rachel Maddow
Avoiding your unfinished home projects because you're.
- [00:03]
Andrew Weissmann
Not sure where to start. Thumbtack knows homes, so you don't have to don't know the difference between matte.
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Rachel Maddow
Paint, finish and satin or what that clunking sound from your dryer is.
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Andrew Weissmann
With Thumbtack, you don't have to be.
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Rachel Maddow
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- [01:01]
Andrew Weissmann
Hi and welcome back to Main justice. And welcome back to the Tuesday schedule. It is Tuesday morning, July 29th. I am Andrew Weissman and that other voice is my wonderful co host Mary McCord. And we're all back. Welcome, Mary.
- [01:19]
Mary McCord
It's good to be here on a Tuesday morning. We have got just a jam packed. I know, I think I say this every single week, but every single week I think, oh my gosh, this is so much. We're not going to be able to cover it all.
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Andrew Weissmann
Well, Mary, last night we were, look, we had sort of, you know, people sort of know by now that we, we've learned not to do too much planning. But we do think about the topics, but we don't do it too far in advance because things change. But I mean, seriously, like last night, early this morning, right, we're like, we need to add this, we need to add that, we need to add this. But with all of that banter out of the way, we do, we got.
- [01:53]
Mary McCord
We will start as we did last week with the continuing Epstein saga. Shortly after we recorded last week the first court to have one of the petitions to unseal grand jury transcripts. Denied that request. There have been other developments. Ghislaine Maxwell is still pursuing her petition for Supreme Court review. And of course, since we talked, we've had the deputy attorney general spend two days personally meeting who with Ms. Maxwell.
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Andrew Weissmann
And so that's really typical, isn't it, Mary?
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Mary McCord
Oh, yeah. Happens all the time.
- [02:27]
Andrew Weissmann
Yeah.
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Mary McCord
I mean, facetious, bing, bing, bing, Right?
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Andrew Weissmann
I mean, I always had cases where, I mean, I preferred it when it was the attorney General. But you know, from time to time the, the deputy, if you're going to.
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Mary McCord
Butt into my case, it really better come from the Very top right if you mess with my case.
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Andrew Weissmann
Anyway, as you can tell, I'm into digressing.
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Mary McCord
We're getting triggered and we haven't even started. Okay, then we will move on to. There's been so much that has gone on in the sort of immigration and deportation related area and cracking down on so called sanctuary cities. We had a first ruling dismissing the Department of Justice's case against Chicago, the State of Illinois, the county of Cook County. And we had at the same time, almost the same moment the DOJ bring another new case against York City alleging that its sanctuary city policies violate the Supremacy Clause and discriminate against the federal government, etc. But we've also had developments in cases like the Abrego Garcia case. And we've had the first effort to litigate against the DOJ by somebody who was part of that deportation flight to El Salvador, who has since been sent to Venezuela pursuant to this sort of weird deal by which the El Salvadoran president sent all of the Venezuelans to Venezuela and Venezuela released Americans that it was detaining. And then that leads kind of directly to something that did happen that really broke late last night was this, it feels unprecedented to me, misconduct complaint that the Attorney General directed her chief of staff, I guess to write and file against the chief judge of the D.C. district Court. That is Judge Boasberg, the judge people will recall, who in the emergency motions hearing on a weekend, March 14th and 15th, when the very first flights took off for El Salvador, he was the one who held those emergency hearings and ordered that those flights be turned around because people had a right to due process. So you've got to really think through. And the complaint we'll talk about it talks about those activities of that day and really does seem to be potentially filed as a retaliatory measure. But it's an extraordinary thing. We'll talk about that. And as well as other things going on sort of internal DOJ, we have had now some of the fired assistant U.S. attorney and other people who staffed U.S. attorney's office and the Department of Justice have now filed suit against the Department for their firings which were completely without any basis or cause. The Department of Justice did what he has, what it has done in all of these firings just said under the authority of Article 2 of the Constitution, you're separated from service. And talk about some of the other things that have been happening within the Department of Justice to the extent that we are able and have time.
- [05:16]
Andrew Weissmann
And it's really interesting, there's a theme to this. There's so much of what we're going to talk about raises big systemic issues. There are individual cases raising really big issues about the government, the role of government, the abuse of power. It's sort of remarkable just listening to you, Mary. But should we start with the Epstein matter?
- [05:39]
Mary McCord
Yes.
- [05:39]
Andrew Weissmann
And as you said, there's sort of two pieces that are new ish. There's the grand jury decision out of a district judge in the 11th Circuit down in Florida. And there's this two day, what's called the proffer session with Ghislaine Maxwell. I thought maybe a good way to start, just so we frame it and we don't forget what we're dealing with. Like, what is going on is. I wanted to read just a couple quick things. One is the opening lines from the Second Circuit decision that affirmed Ghislaine Maxwell's criminal conviction. That's now something that she is seeking to have the Supreme Court review her legal arguments. But the Second Circuit, in affirming the trial judge's decisions during the trial phase and in the sentencing phase, started this way. And I thought it was a really useful reminder about who is she? And it says, defendant Ghislaine Maxwell coordinated, facilitated and contributed to Jeffrey Epstein's sexual abuse of women and underage girls. Starting in 1994, Maxwell groomed numerous young women to engage in sexual activity with Epstein by building friendships with these young women, gradually normalizing discussions of sexual topics and sexual abuse. Until about 2004, this pattern of sexual abuse continued as Maxwell provided Epstein access to underage girls in various locations in the United States. So when we're talking about Todd Blanche, meeting with her and her counsel, that's who we're talking about. She has been sentenced by the trial judge to 20 years. Something that I think is also relevant is the victims had no sort of notice and opportunity to be heard before this meeting between Todd Blanche and Ghislaine Maxwell occurred. And I also thought at the sentencing, various victims were able to present and talk to the trial judge. Who is Allie Nathan. She was the trial judge. She's now in the circuit, the circuit judge now. And this is what one of the victims said afterwards. It actually felt very powerful to finally have a chance to speak and have my voice on the record and say the things that I wanted to say about her crimes, impacted myself and the people that I know and care about. And that was factored into this decision by Judge Nathan, who did not go with what the defense wanted, but also did not go with what the prosecution wanted. And in terms of sentencing, just to be fair in terms of this sentence. Exactly. And made it clear that Ghislaine Maxwell was being sentenced for her own conduct, not, as she said, not as a stand in. As she said, Ms. Maxwell is not punished in place of Epstein. Ms. Maxwell is being punished for the role that she played, and she called it direct and repeated participation in a horrific scheme. So I just thought that was important. When we then are going to talk about sort of these legal issues, to remember who we're talking about and the righteousness of this prosecution and of her landing in jail. And that's to say nothing, for she can present legal issues on her appeal. She's raised the legal issues to the Supreme Court that they may or may not take. But in terms of the facts, this has been adjudicated by a jury. It has been found by the trial court at sentencing and by the court of appeals.
- [09:19]
Mary McCord
Yeah. And I think that's so important because the swirl now is. Is really very far afield from the core of what she was convicted of and what Jeffrey Epstein was convicted of in Florida and then was awaiting trial on when he killed himself in jail in New York. And, you know, the power of these victim impact statements, this is a right that victims have under federal law at the time of sentencing. You know, early in my career as a prosecutor, I prosecuted child sexual offenses and exploitation of children and also, you know, young women. Obviously not all of them wanted to give impact statements because it's very traumatic to do so, but when they did, they read similar to the excerpt that you just mentioned, and it gave those victims a voice, a chance to actually talk about the impact on them. Because if they testified at trial, they're just talking about what happened to them. Right. Like the actual crime and not so much the impact on them, because that actually shouldn't be affecting the jury's decision about whether they're guilty or not, because. But it certainly affects the judge's decision about sentencing. And so those are very powerful statements. And victims of all kinds of crime get to submit those if they so choose. So, because you mention it before we get into some of the other issues with respect to the grand jury transcripts, this petition for Supreme Court review is about whether when Jeffrey Epstein entered into a plea deal in Florida, whether that covered Ghislaine Maxwell as well, because that plea deal was very interesting. It basically said, if you plead guilty to state law offenses, we, the U.S. attorney's office there will not prosecute you for federal crimes in Florida, and we'll not prosecute any of your co conspirators. And they mention in particular four co conspirators. But apparently it said including. So it didn't necessarily say these were the only four. Then after that, subsequent to that is when the Southern District of New York, the federal prosecutors in New York indicted Jeffrey Epstein, indicted Ghislaine Maxwell. The agreement in Florida was clear with respect to Epstein that it didn't preclude other U.S. attorney's offices from charging him, only precluded that U.S. attorney's office in the Southern District of Florida. The plea agreement was less clear, at least according to Ghislaine Maxwell and her attorneys, about whether the agreement that no other, no co conspirators would be prosecuted, whether that was limited to just the Southern District of Florida or anywhere in the country. In New York. The judge held no, these for a lot of reasons that we don't have to get into these types of deals unless they are explicit that no U.S. attorney's office in the entire country could prosecute, then it is assumed that it is limited to the U.S. attorney's office that brought the case that was upheld by the 2nd Circuit. That is the issue that Ms. Maxwell is trying to take to the Supreme Court. She's saying we have a circuit split, meaning different circuits have ruled differently about whether these types of agreements bind the whole country or not the whole country. The government is basically saying, just look at the language of it. And the language of it was limited to the Southern District of Florida.
- [12:35]
Andrew Weissmann
And that is to be fair, sort of to both sides. It's a really standard practice. It is extremely unusual for one U.S. attorney's office to purport to bind every other part of the Department of Justice, so every other U.S. attorney's office and main Justice. Why? Because could you imagine, you would have to get their approval and you'd have to just imagine logistically it would be sort of a nightmare.
- [13:03]
Mary McCord
And actually the, the DOJ guidelines require that consultation. You can't just, you know, give away other U.S. attorney's offices cases.
- [13:12]
Andrew Weissmann
So that is the norm. And prosecutors and defense lawyers know that. They know that the language is just for that district. On the other hand, as a matter of practice, that's not, that's not legally binding. But as a matter of practice, a good defense lawyer knows it isn't really going to happen because the system breaks down if somebody charges and sort of says we're not going to prosecute for other crimes. If you plead to X, if suddenly, you know, the next day the neighboring jurisdiction, you know, the U.S. attorney's office in New Jersey says, oh, we can prosecute the person who was just prosecuted in Philadelphia. And so as a practical matter, it doesn't really happen. But that's different than legally.
- [13:58]
Mary McCord
That's right.
- [13:59]
Andrew Weissmann
And so before another U.S. attorney's office were to jump in, there would have to be really good, insufficient reasons to not undermine that general understanding. So that is the legal issue going up to the Supreme Court. It's really about the language and the agreement.
- [14:18]
Mary McCord
And the other interesting thing about it is that agreement in Southern District of Florida was about crimes during a particular time range. And the Southern District of New York, the indictment there was broader than that. It covered time ranges that weren't even covered by the Southern District of Florida. So there's a bunch of arguments it did.
- [14:34]
Andrew Weissmann
But if they were to prevail, there's still a chunk of time that was covered. So you would think she would get a new trial, right?
- [14:41]
Mary McCord
That's what I meant. Yeah, yeah, it overlapped. But there's a chunk of time that one covered. Yes, exactly. So that's what's happening there. And it's kind of timing wise. Interesting, right, Andrew, because here you've got the government saying, yes, don't take this case, Supreme Court, nothing to see here. She was properly prosecuted at the same time, literally, they filed that last week. She filed her reply yesterday. At the same time last week, the government saying, Supreme Court, don't take this properly convicted. You've got Todd Blanche going down and meeting with Ms. Maxwell to talk to her. We don't know exactly about what, but presumably about people who might have been implicated in the crimes and people potentially that the government wants to determine were not implicated in the crimes.
- [15:22]
Andrew Weissmann
Speaking of ironies, as we predicted, the general law with respect to release of grand jury information is extremely hard. It is even harder in the 11th Circuit where the, the 11th Circuit Court of Appeals has a much narrower definition than the in terms of the leeway that the district court has than in New York. So we don't have a New York decision yet. And that's going to, that's in front of Judge Paul Engelmeier, an excellent district court judge, and that's wending its way. But in the meantime, the Florida court said, look, our hands are tied. I mean, and you recognize that because the 11th Circuit has very, very strict rules and you concede you don't fall into those.
- [16:01]
Mary McCord
So which means it has to be one of the exceptions in Rule 60 that we talked about last week.
- [16:05]
Andrew Weissmann
And it's not one of those exceptions. It's not one of those. And I'm not transferring it up to New York for their standard to apply. It doesn't meet the transfer rules, so that, as we predicted, would be denied. But the reason it's ironic is at the same time they're saying, oh, we want to release this. The government is in possession of. And I looked it up. According to the government, they have 30 gigabytes. That's with a G and a B. Yeah, yeah.
- [16:32]
Mary McCord
Giganto bites.
- [16:33]
Andrew Weissmann
Someone asked me, I think it was Tim Miller said, like, well, what does that mean? And I said, you know what that means in legal? It means a lot.
- [16:40]
Mary McCord
A lot. Yeah. And we talked last week about they could release some of that properly redacted if they wanted to do so. And that's why this whole thing seems to be really politically motivated, in my opinion.
- [16:53]
Andrew Weissmann
Yeah. I did want to give one thing because it's gotten so much press, which is people have talked about Todd Blanche being on this podcast with the defense lawyer and praising the defense lawyer for Ghislaine Maxwell and being friendly. I just want to make sure if that was the only thing here, that's a big nothing.
- [17:12]
Mary McCord
It's a nothing burger.
- [17:14]
Andrew Weissmann
You, if you were really close friends, you might decide to accuse yourself. If you were just sort of colleagues or knew each other or respect each other, of course, would make sure someone else was in the room. You typically do proffer sessions, always with the case agent and people actually always a witness, always steeped in the case.
- [17:33]
Mary McCord
Yes.
- [17:34]
Andrew Weissmann
And that's one of the things. We don't know the answer to that yet. But it doesn't appear that the career people on the case were present. And so we don't know who else was there. But the mere fact of having a collegial relationship or even praising one person on one side or the other is just not that unusual, especially the longer you're in the business. And particularly, you know what I would say in Washington, there's sort of a fairly close knit legal community in the criminal law world and people know each other and develop reputations. So that in and of itself is not the same.
- [18:07]
Mary McCord
That's right. I agree. Last point we should make before we break is there is another avenue for some of these records to potentially be made public. And that has to do with a defamation suit that was brought by one of the victims who has actually since died, as well as the media organization has intervened a defamation suit against Ms. Maxwell because of Ms. Maxwell sort of denying what happened to this victim. And that suit has its own set of records. And the media organization is now asking for those records to be made public. And the Second Circuit just was it yesterday or Friday? I can't. A day since the last time we recorded on a day that is not this day and was not that day, has said there should be a review of those to see what might be able to be made public. And we also have the House and Senate Congress members, Republicans and Democrats, pushing for things to be made public. We've got some Democrats now asking for the records of the meetings between Mr. Blanche and Ms. Maxwell, which they're never going to give up. But like, anyway, my point is there's like a full court press through multiple different political and legal channels by which more information could be made public.
- [19:24]
Andrew Weissmann
Yeah. I mean, there's Freedom of Information act. There's that. As you mentioned, the Miami paper and Julie Brown, this excellent reporter who's written about the Epstein Ghislaine Maxwell case in a wonderful, wonderful book, she is seeking this information. She got material. She didn't get some material. But the court basically said we're going to send it back to the district judge for applying a different legal standard for some of the documents. But that is another avenue remains to be seen. But this is what's so ironic is the government, any day of the week, if they wanted to be transparent, could just turn this over. So it's just so bizarre that they're saying that the grand jury transcript should be made public. And I do think it puts a court in an interesting position if somebody is seeking this information or the Freedom of Information act, where the government is going to say, oh, we have a strong interest in not disclosing it when they're at the same time saying we want to be really transparent and the President has told us to be really transparent and we're seeking information that is typically never disclosed and yet we don't want to turn over the FOIA information.
- [20:30]
Mary McCord
Yeah. I mean, there's a lot of these sort of inconsistent positions in this whole area of Epstein.
- [20:35]
Andrew Weissmann
Yeah. That's like to me, the big picture is like they're asking for this stuff that they know that they won't get disclosed and is least likely to have damaging information to the President. But they're not disclosing the information that they could disclose and does have by all, at least the reporting information that I wouldn't say it's criminal, but information that can be reputationally difficult for the president and others.
- [21:00]
Mary McCord
That's right. Okay, shall we break?
- [21:03]
Andrew Weissmann
We shall.
- [21:14]
Rachel Maddow
Saturday, October 11th, from New York City, it's MSNBC Live 25. Join your favorite MSNBC hosts Rachel Maddow, Joe Scarborough, Mika Brzezinski, Nicole Wallace, Ari Melber, Alicia Menendez, Simone Sanders Townsend, Michael Steele, Chris Hayes, jen Sotti, Lawrence O', Donnell, Stephanie Ruhle and more. Visit msnbc.comlive25 to buy your tickets today.
- [21:43]
Mary McCord
Hey everyone, it's Chris Hayes.
- [21:45]
Andrew Weissmann
This week on my podcast, why Is this Happening? Former senior policy advisor at the National Economic Council, EA Ibrahim I don't think.
- [21:51]
Mary McCord
That any American is going to bed being worried about who has the most compute, who has the highest number of GPUs, US or China. That's not what people are worried about. They're worried about housing, healthcare, education, job opportunities. So to the extent that AI is either an enabler or an obstacle to those things, that is what I think they will end up worrying about.
- [22:12]
Andrew Weissmann
That's this week on why Is this Happening? Search for why Is this Happening? Wherever you're listening right now, and follow.
- [22:17]
Rachel Maddow
Start your day with the MSNBC Daily Newsletter Each morning. Read sharp insights from the voices you trust. Catch standout moments from your favorite shows.
- [22:26]
Mary McCord
The second Trump administration has gone to unprecedented lengths to radically transform America.
- [22:32]
Rachel Maddow
Stay up to speed with our latest podcasts and documentaries, and get fresh perspectives from experts shaping the news. It's everything you love about MSNBC delivered to your inbox. Sign up now@msnbc.com.
- [22:50]
Andrew Weissmann
Welcome back. Okay, let's talk about sanctuary cities. Let me sort of set the stage. There are certain states and localities within those states that have passed various laws. Illinois is one of them, New York is another. And so New York City has various rules. It's interesting, I was reading over the Illinois case and also the New York case, and the provisions of law, while they're slightly different, are actually quite similar. And I suspect, you know, a lot of cities talk to each other about what they're doing that as they should. And basically, one way to think about this is one, the term sanctuary city is a misnomer because sanctuary city might suggest that if you're in that city, you're immune completely from outside law enforcement in this situation, outside meaning federal, that's not what's going on. Sanctuary really relates to what the locality will do and what the locality will not do, but it doesn't prevent the federal government from taking lawful action. And the real issue is how much can the federal government dictate to the states and to localities what they must do versus what they can do. We talked about this a little bit early on earlier when there was a Department of justice memo that we thought was, let's just say, without saying whether it was deliberate or not, let's just say it was not clear. And it gave the impression that if the locality does not help federal law enforcement, that they somehow are obstructing justice, that not helping is obstructing.
- [24:47]
Mary McCord
Yeah. They suggested criminal. Criminal advice.
- [24:50]
Andrew Weissmann
Exactly.
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Mary McCord
That's right.
- [24:51]
Andrew Weissmann
But not helping is different than obstructing. And that sort of tension is what runs through the decision in Illinois rejecting the governance position. And the new case that you said, Mary, was filed, you know, like as nightfalls in New York.
- [25:11]
Mary McCord
Yeah.
- [25:12]
Andrew Weissmann
By the way, here's a little factoid before I turn it over to you. It was so interesting to me that the federal government chose to file this in the Eastern District of New York, my old stomping ground. And it's before Judge Reyes, excellent district judge, longtime federal magistrate judge, and it's pending there. And it's just interesting to me that the federal government thought that they might have a better shot at a favorable bench in the Eastern District of New York than in the Southern District of New York. I don't really know why they would have thought that. They're excellent nonpartisan judges of all stripes and appointed by Democrats and Republicans in both districts. But I just thought that was an interesting factoid as to where the government chose to file because they didn't have to file. I don't think in the Eastern District of New York they had a choice of different districts.
- [26:05]
Mary McCord
I wouldn't have thought so. Yeah. I want to also come back to. And I know months ago when we first talked about sanctuary cities, I got on my bully pulpit on this, but I've done a lot of speaking to mayors across the country, police chiefs, sheriffs, and in fact, my organization, icap, has published guidance on what is required by federal law in terms of cooperation by local and state officials with federal immigration enforcement. And the reason that jurisdictions. It could be like local ordinances, it could be a state law. In the case of Illinois, it's all of that. It's a state law, it's a county law, it's a city ordinance. The reason they pass these types of legislative measures is for public safety. It's when a police chief or sheriff and the mayor, they all say look, or the governor. We prioritize public safety in our communities, which means we need the cooperation of everyone in our communities. Immigrant, non. Immigrant, citizen, non citizen, documented, non documented. Because we need people to report crimes. We need people to show up as witnesses to crimes. We need people to feel that they can also send their kids to school. Right. And take their kids in for health care. And if everyone in our community is constantly thinking that our local law enforcement is just a branch of ICE and is always going to be looking for our documents and reporting us to ice, our community is going to shut down. They're not going to work with law enforcement. They're not going to send their kids to school. They're not going to send their kids to the doctor when they need to. And that is going to harm public safety in our communities. So that's what motivates these. It's not this, you know, middle finger to ice. This is like we make decisions which the Constitution and principles of federalism leave to the states. We make decisions at the local and state level about what's best for public safety in our states. And so these policies, they typically have several features that are common across them, like you indicated, Andrew, and that is that they're prohibited by law from prohibiting the maintaining of information about the immigration or citizenship status of a person. But what they will say is, we are not going to ask people about it unless it's pertinent to something in our investigation. So we won't even have the information about somebody's immigration status to give it to ice, or we won't even maintain it to give it to ICE if they ask it, because we're not going to ask those questions of everyone we encounter, whether it's seeking health care, reporting a crime, whatever, unless it's actually relevant to the investigation. They also, almost all of them say, we will not hold in our detention facilities, our jails, we will not hold a person on a civil, administrative, immigration detainer or warrant. And we'll talk about what that means passed when that person is otherwise eligible for release. We won't hold them there for ICE to come, even though ICE wants us to do that, because that's a seizure. We need probable cause of a crime. And an ICE warrant is not based on probable cause of a crime. It's just based on information known to ICE that a person might not have legal status in this country, which, remember, is not a crime. It is not a crime to be here undocumented. You don't have legal status, you can be removed, but it's not a crime just to be here undocumented. And so for their own reasons of being consistent with the Fourth Amendment, they're like, we're not going to hold people when we have no authority to hold them and they are due to be.
- [29:43]
Andrew Weissmann
Released and as the judge said in, in the Illinois case, a detainer by ICE is a request, not a condition. And talking once again about irony, this is the Republican Party that is trying to again, in the words of the district judge, commandeer state practices to tell the state what they can and cannot do and hear what they must do to facilitate the federal government. We are so far away from the civil rights fights in the 50s and 60s where the Republicans who are very much on the other side of this issue and very focused on states rights, because here what the judge found was a violation of the sort of anti commandeering rules, which is that Congress has no power to make the states just part of the federal government and carrying.
- [30:42]
Mary McCord
Out their rules, enforce federal immigration law, do any kind of enforcement of a federal regulatory scheme and federal immigration law by design is for the federal government because they actually Congress is like, we don't really want all of the states having their own immigration regime. Right. And forcing it in ways that might be inconsistent. So very much by design, it's like, and the Supreme Court has upheld this. It is a federal regulatory scheme. And the anti commandeering principle that you mentioned that of course the judge relied on in dismissing, just outright dismissing the Department of Justice's case against Illinois and Cook county and Chicago was this would, first of all, the federal law doesn't preempt state law. And if it did, it would violate these anti commandeering principles of the Constitution that sort of have their Genesis in the 10th Amendment, you know, that gives states the rights, the police power, et cetera, because it would be in fact forcing states and local jurisdictions to carry out a federal regulatory scheme.
- [31:44]
Andrew Weissmann
So one way to connect this up to a second thing before we move on to this really interesting lawsuit by a somebody who is extracted is when you said that the localities are concerned about like ICE may have said something and ICE may want to do something, but they don't have to sort of take their word for it or and enforce that is what's happened in the Abrego Garcia case.
- [32:08]
Mary McCord
That's right.
- [32:09]
Andrew Weissmann
Where you have two judges within minutes of each other rejecting the government's view. And we talked a lot about the magistrate judge in the criminal case rejecting the idea that Mr. Abrego Garcia should be held in jail pending that criminal case that was appealed to the district judge, while the district judge, in a lengthy, another lengthy, thorough decision affirmed the magistrate judge and said that Mr. Abrego Garcia will be out on bail pending the resolution of the criminal case. Now fast forward four minutes, right exactly to Maryland where the judge who had this civil case, the one that started it all, Judge Sinis said that I see that he's going to be released pending that criminal case. Well, if you, the government want to take him back into custody and deport him, there has to be 72 hours notice to him. And as we talked about over and over again, if there's any case, any single case where you would want to give notice, it's this one.
- [33:23]
Mary McCord
Oh gosh.
- [33:23]
Andrew Weissmann
Because. Because everybody, including the government agrees that he was deported, extracted, removed, whatever word you want, whatever verb, in violation of court order.
- [33:35]
Mary McCord
That's right.
- [33:35]
Andrew Weissmann
And without due process. So she is saying that you have to comply with the 72 hour provision. So a double law, first of all.
- [33:42]
Mary McCord
She says, yeah, she says you've got to return him to the status quo before you send him away. Which means in Maryland, his immigration case is in Baltimore. You don't get to just start over someplace else or resume someplace else. And if you decide that you are going to deporting to some third country because that's one of the things that his attorneys are really worried about. Right. And they've talked about the deportations to South Sudan. Right. And to Mexico. If you're going to do that, you got to give him those 72 hours notice. Now the other crazy thing here is that right after all this happened another four minutes, Andrew, we had the magistrate judge back in Nashville after the district court judge says, I agree with the magistrate judge that there could be conditions of his release so he does not need to be detained and he should be released on the conditions that the magistrate judge imposes. And those can be things like regular check ins with pre trial services and you know, sometimes ankle monitoring. I don't think that's going to be one here, but you know, those kind of things. Then his own attorneys went in before the magistrate judge and said timeout. Can you just keep him in detention for up to another 30 days while we figure out what is going to happen? Because the government has just not been clear about whether it's really going to try to deport him to a third country or not. In fact, have not only they not been clear, they've just refused to answer questions about this in either place.
- [35:06]
Andrew Weissmann
And so to the court, to the court, to the court.
- [35:09]
Mary McCord
And isn't this something to think that a person would rather stay in pretrial detention for up to another 30 days when a judge has said you can be released because that person is so worried that if they're released the government will spirit him away to someplace like south sudan.
- [35:29]
Andrew Weissmann
To quote Ms. Osterk in the article that we read from and referenced last week, I didn't think this could happen in the United States.
- [35:39]
Mary McCord
Yes, agreed.
- [35:41]
Andrew Weissmann
So speaking of which, one of the people who was extracted and removed to El Salvador is now taking steps to file a claim against Homeland Security for what happened there.
- [35:56]
Mary McCord
That's right.
- [35:57]
Andrew Weissmann
And to be clear, he was denied due process. We know that from the Supreme Court of the United States. And we'll see what happens with that lawsuit. He is seeking over a million dollars in damages and there are various challenges to bringing a civil case against the government that indeed we will cover as this case progresses. But it is very much a vehicle to both give justice to an individual, but also to deter the kind of conduct going forward. And so we will have to spend more time talking about this because it's a very complicated area and it's not as I actually have to do this every year in my Fourth Amendment class because a lot of times people are saying, well, couldn't people bring a civil suit? And it's like, well, this is where lawyers get bad names. It's sort of like yes and no.
- [36:56]
Mary McCord
We're gonna have to talk about Bivens one day. Right, exactly about Bivens.
- [37:00]
Andrew Weissmann
So we wanted to flag that for you, that there is that case. Mary, let's take a break and when we come back, we want to talk about something that broke last night about Chief Judge Boasberg that I know the two of us are dying to talk about and frame and bring everyone up to speed on what we know so far.
- [37:21]
Mary McCord
Sounds good.
- [37:30]
Rachel Maddow
MSNBC's Jen Psaki, host of the Briefing.
- [37:34]
Mary McCord
We've never experienced a moment like this in our country and it leaves us all with a choice. Are we going to speak out or are we going to be pressured into silence? I've worked for presidents. I've faced the tough questions from the press and and even threats from the Kremlin. And if there's one thing I've learned, it's that you can't cower to bullies. You don't need to be hopeless. We have our voices and I will continue using mine.
- [37:54]
Rachel Maddow
The Briefing with Jen Psaki Tuesday through Friday at 9pm Eastern on MSNBC. Subscribe to MSNBC Premium on Apple Podcasts for early access, ad free listening and bonus content to all of MSNBC's original podcast, including the chart topping series the Best People with Nicole Wallace. Why is this Happening? Main justice and more. Plus new episodes of all your favorite MSNBC shows. AD free and ad free listening to all of Rachel Maddow's original series Ultra Bagman and Deja News. Subscribe to MSNBC Premium on Apple Podcasts.
- [38:34]
Mary McCord
Welcome back. Well, as promised and as related to the topic we were just discussing yesterday, in a misconduct complaint that was sent via hand delivery to the clerk of the court and addressed to Chief Judge Sri Srinivasan, who is the chief judge of the D.C. circuit, there was a complaint filed by Attorney General Pam Bondi's chief of staff, Chad Mizell. It is five pages long and it is a misconduct complaint about Judge James Boasberg, who is the chief judge of the district court in the District of Columbia. So it's an interesting thing because there are a bunch of circuits around the country which are the courts of appeals, and every single one of them, other than the District of Columbia, has jurisdiction over a number of different states and a number of different district courts in different states. But DC Just has one district court and one circuit court, and those judges are all in the same courthouse. And it's not like, you know, the Fourth Circuit, for instance, has Maryland and Virginia and North Carolina all reporting up to it. But D.C. is different. So this went to Judge Srinivasan. The complaint is that on March 11, Judge Boasberg was attending a session of the Judicial Conference of the United States, which we'll talk about. That is a conference led by the chief justice, and it includes the chief judge of each circuit of all the circuits and then one district.
- [40:03]
Andrew Weissmann
So that's 11. 11 circuits, that's right.
- [40:06]
Mary McCord
Well, 11 plus D.C. right. So 12 by my math, I think that's all.
- [40:10]
Andrew Weissmann
You're right.
- [40:11]
Mary McCord
And then one judge from a district court within each circuit. So for all the others, it might just be one judge from one court in one state within the circuit. But in D.C. that means both the chief judge of the circuit, Judge Srinivasan, and the chief judge of the D.C. district Court, Judge Boasberg. That's the Judicial Conference. And they meet regularly to talk about administrative matters and things like this and sometimes rules and other things like this. So the complaint is that while attending a session in the Judicial conference, this is not a public thing, by the way. This is a meeting of judges. While there, I'm reading from it. Judge Brosberg attempted to improperly influence Chief Justice Roberts and roughly two dozen other federal judges by straying from the traditional topics to express his belief that the Trump administration would, quote, disregard rulings of federal courts, quote, and trigger, quote, a constitutional crisis, unquote. And then the Complaint goes on to say, although his comments would be inappropriate even if they had some basis, they were even worse because Judge Boasberg had no basis. The Trump administration has always complied with all court orders, nor did Judge Boasberg identify any purported violations of court orders to justify his unprecedented predictions. The complaint then goes on to say within days because the date of this judicial conference meeting was March 11th. According to the complaint, the very next weekend, 3-14-15, is the weekend that the government, without being transparent about it at all, boards people on planes to send them to Seacoast, the terrorist detention center in El Salvador, allegedly under the auspices of the Alien Enemy act, which only got made clear, like in the middle of Judge Boasberg handling emergency proceedings on a weekend, those proceedings where he did order those planes to be turned around so that people could have due process. And they are essentially making the point in this misconduct complaint that all of that is part of his misconduct.
- [42:08]
Andrew Weissmann
There's so much to say. One is that this broke last night. So we don't have the position of Judge Boasberg or the Chief justice or anyone else. What you're reporting is only what's in the complaint.
- [42:21]
Mary McCord
That's right.
- [42:22]
Andrew Weissmann
Two, the fact that the complaint keeps on talking about these as public statements by Judge Boasberg at the conference is odd because it's not public. One of the reasons that you might be thinking, so why do they say that? And that's because the ethical canons that they cite all relate either explicitly or implicitly to public statements. So they have A judge should act at all times in matter that promotes public confidence in the integrity and partiality of the judiciary. Or can. 3A 6A judge should not make public comments on the merits of a matter and a judge should uphold the integrity and independence of the judiciary. So this would all be furthered if you could somehow argue that these were public statements that he made outside of the courtroom as opposed to as part of judicially discussing something factually. The reason for your cough is Judge Boasberg a is not alone in the judges who are concerned about this. Judge Zinnis has the same concerns. Judge Young, Judge Gallagher, appointed by Donald Trump in the first term, same thing. So the idea that Judge Boasberg is singled out is, is very much sort of a war on the judiciary is the way I look at this in an unprecedented, unheard of way. This is full frontal assault on courts that are pushing back because Congress they have under control because of the way that's composition. And the courts are the last remaining sort of political Check that we have in terms of the branches of government, obviously, the voters are the ultimate political check. And so there's that piece of it. And then the final thing, factually, is leave aside what is happening in court, where we could look at all of the judicial cases that, Mary, you and I have talked about so often on this podcast. But there are now not one, not two, but three whistleblowers who have gone to Congress and reported about events involving Emile Beauvais, who is the number two to the number two, very high level position at the Department of Justice. And talking about his essentially blowing off the courts. You're saying we may need to. And he used very explicit language, something which he hasn't directly denied. He actually said he doesn't recall using that language. But you have these various whistleblower complaints. It's not like there isn't a factual record here, not just from the judges, but from internal people to the department, including, just to remind people, Mr. Roveni, who was the first whistleblower, had been advocating on behalf of the Trump administration in all sorts of ways. This is not a deep state DOJ attorney, as he said. I just didn't sign up to lie.
- [45:14]
Mary McCord
That's right. I mean, the read, it's short. We can put it in the show notes. It's just pretty extraordinary. I mean, like you said, they're claiming it wasn't in the part that I read. But they're very clear. These comments to the Chief justice and other federal judges in a public setting undermined the integrity and impartiality of the judiciary in violation of cannons 1, 2A and 3A, 6. But it's not public. And then this notion, the Trump administration. I'm just going to read it again. The Trump administration has always complied with all court orders. That is not what we have judges across the country finding. So, you know, sometimes I wonder when things get written by this Department of Justice and submitted to courts, like, did anyone else read this? Did anyone fact check it? Did anyone pay any attention to whether the assertions being made in there were true? Is it possible that Mr. Mazzell didn't realize that the Judicial Conference does not meet publicly? It's not like you can be like, hey, can I go, like, sit in the audience and listen? It's just not that. And what this asks for, it asks for a special investigative committee to be appointed and to inquire into whether Judge Boasberg's conduct constitutes conduct prejudicial to the effective and expeditious administration of the business of the courts want some order interim corrective measures to reassign all of the related cases to JGG versus Trump. JGD is the case we were just talking about the case that went to the Supreme Court where the Supreme Court said this has to be brought in habeas, not in the case of the way it was brought before Judge Boasberg. But all nine justices agreed that people are entitled to due process of law in time before they are removed from the country in time to actually bring a habeas petition. All nine justices agreed. They want him reassigned from that case, taken off of that case, and then they say upon substantiation, they want to impose appropriate disciplinary action, including a public reprimand and referral to the Judicial Conference for consideration of impeachment related recommendations if the committee finds willful misconduct. So your comment about a war on the judiciary, I think is very apt here.
- [47:26]
Andrew Weissmann
So the other thing that is in this complaint, the audience for it is clearly the public and not the any sort of rational bench. They say that the Supreme Court summarily vacated Judge Boasberg's decision without saying it was on this procedural issue about be brought by habeas or under the apa, sort of what's the mechanism as opposed to the merits of it. That's nowhere in here. So it's very, very misleading. It sounds like the Supreme Court just completely disagreed with everything he was doing, which is not the case. Second, guess how they described the people who were extracted. They were TDA terrorists, unquote. This was what Judge Wilkinson, a leading conservative jurist in the 4th Circuit, was saying. Says who? He said, maybe they are and maybe they're not. And the point is you haven't given them the due process that they're entitled to to prove that. I mean, it is, it is unbelievable that this is signed by the Chief of Staff to the Attorney General of the United States of America. It's sort of like at some point you run out of words.
- [48:36]
Mary McCord
Well, you know what, Andrew? This Department of Justice, and we have a couple more points to make before we close today, is becoming unrecognizable to me. I spent decades in the halls of the main justice building and my US Attorney's office, more in my US Attorney's office than the halls of main Justice. But the last three years only in the halls of main justice. And before then there every time I got summoned over there. And I just don't. The things that this department is doing just are not consistent with anything in my career that I'd seen under administrations of Republicans and Democrats, and it's going to be tough to rebuild.
- [49:13]
Andrew Weissmann
Yeah. And it's one of the reasons that you're seeing a mass exodus from all parts of the Department of Justice, certainly at Main Justice, Civil Rights Division and the Federal Programs Division. One thing I was struck by in the Sanctuary Cities case, the one that was filed in New York, it is customary, which means, of course, it's not happening, but it is customary that if the federal government, from Main justice, that is the Department of Justice in Washington, is going to file something in a local U.S. attorney's office, that somebody in the local U.S. attorney Attorney's office is on the brief and the courts actually want it. In my district, which was the eastern of New York, they would be like, where's the local prosecutor? They know those people. They want to know that it's been vetted, that they have someone there who they can talk to, who they have seen and can trust. And it also controls sort of access. Well, this case was filed by Main justice with not a single person from the local U.S. attorney's office. I was struck again. The reason I'm raising it was this complaint against Chief Judge Boasberg was signed by the Chief of Staff to the Attorney General of the United States. No career person was on it. It is for these political people. And that is a real sign. Look to see who is signing things, who is showing up in court on these matters. And it'll give you a sense of what Mary's talking about, the real undermining of the rule of law that you can see sort of on paper in the Department of Justice.
- [50:51]
Mary McCord
Last thing, again, internal Department of Justice. We do have the first litigation now being filed to challenge these firings without cause. And that's brought by Michael Gordon and two others. Michael Gordon was a prosecutor actually in Florida. Florida. But he was assigned to handle some of the January 6th prosecutions. Because that was such a big investigation. The D.C. u.S. Attorney's office didn't have enough people to staff up all of those prosecutions. So they had prosecutors from different U.S. attorney's offices around the country who were helping with those. He had some very significant cases there, but he also had significant cases in his home jurisdiction, including one that he was preparing to go to trial on a major, I believe, health care fraud investigation that he was preparing to go to trial on imminently when he was just basically handed this letter that's from Attorney General Pam Bondi saying, under the President's Article 2 authority, you're being separated from service immediately. He had to get his things immediately and leave the office.
- [51:56]
Andrew Weissmann
So, yeah, the other two people are interesting. There's Patricia Hartman. She received the same kind of memorandum. She is a supervisory public affairs specialist, and she was with the United States Attorney's office in your old office in the District of Columbia. And then notably, the third person is Joseph Terrell. Joseph Turrell was the director, Department Ethics Office. He was at the head office, person at Main Justice. And before that, he was in this wonderful part of the FBI, which was the compliance office. Who gets rid of those people? Like, why would that be the person you would get rid of if you were thinking of. You wanted the best ethics advice? And he also got this summary letter saying you're being removed. By the way, Joseph Terrell was not just a sort of normal civil service employee. He was something that I was also.
- [52:50]
Mary McCord
So was I.
- [52:51]
Andrew Weissmann
He was part of something called the SES Senior Executive Service. And that is sort of this special honorific that gives you extra rights within the department. It's both very well respected. It's for senior people, where the department is saying, you have such expertise and knowledge that we want you as this cadre of special people. And it's very hard under the civil service rules to remove those people. Apparently not under the Trump administration. And that's why this case is about an attack on civil service rules. This is the administration saying under Article 2 and the unitary executive that civil service rules do not apply. We can override them. And that is why this is such an important case to watch. The other thing about this case to watch is normally, if you're an employee who's fired impermissibly, in your view, you have to go to something called the Merit System Protection Board here. These employees went directly to court, and they said, well, you know what? We can't go to the Merit System Protection Board, because Donald Trump has essentially eradicated it by removing the quorum. There aren't enough people there.
- [54:01]
Mary McCord
He removed all the Democratic appointees, and now I think that he has one person, and that's not a quorum.
- [54:07]
Andrew Weissmann
Exactly. So they say we should be able to go to court. This is before Judge Cobb in the D.C. district Court. So we will definitely, definitely be covering this because it's an individual case with three people. But it could not be more important. We'll definitely, in another show, talk about why you should care about the civil service, because I know it's a hard thing for, like, it's not like a political battle cry to say, hey, let's go for the civil service. But it is so important, regardless of party, that you want career people making decisions on an apolitical basis and that you don't have a Democrat coming into office and just saying, sweeping all the Republicans out and vice versa, like you don't want it on either side.
- [54:52]
Mary McCord
That's right. And you know what's interesting, and this is probably unique to DC but I have seen many, many yard signs. You know, I'm a runner, so I go out and I run in the mornings and I run in the neighborhoods and there are a lot of yard signs that say we support federal workers.
- [55:07]
Andrew Weissmann
Love it.
- [55:08]
Mary McCord
And that's not just DOJ workers, right? That's usaid, State Department, you know, because of what we've seen, Department of Education, you know, mass firings, mass removals, ending programs, people losing their jobs, people who've been respected, they're part of that civil service. And, you know, again, I'm in D.C. so obviously, you know, everyone here knows somebody who is a federal government worker. But I think it's nice to see these signs in different people's yards and in their windows.
- [55:37]
Andrew Weissmann
Absolutely. Okay. So, Mary, thanks again for keeping us sane and real and relatively calm.
- [55:47]
Mary McCord
Yeah, I don't know if I'm doing that or not, but okay.
- [55:51]
Andrew Weissmann
And thanks, everyone, for listening and staying engaged. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. And you'll also get subscriber only bonus content.
- [56:07]
Mary McCord
This podcast is produced by Vicki Virgolina and Max Jacobs. Our intern is Colette Holcomb. Bob Mallory is our audio engineer, Bryson Barnes is the head of audio production, and Aisha Turner is the executive producer for MSNBC Audio.
- [56:23]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and follow the series.
- [56:34]
Mary McCord
Foreign.
- [56:43]
Rachel Maddow
October 11th from New York City, it's MSNBC Live 25. Join your favorite MSNBC hosts, Rachel Maddow, Joe Scarborough, Mika Bruszinski, Nicole Wallace, Ari Melber, Alicia Menendez, Simone San Writers Townsend, Michael Steele, Chris Hayes, jen Psaki, Lawrence O', Donnell, Stephanie Rule and more. Visit msnbc.comlive25 to buy your tickets today.