Main Justice – "Assault on Congress" (September 3, 2025)

Hosts: Andrew Weissmann & Mary McCord
Podcast: Main Justice

Episode Overview

This episode of Main Justice unpacks the escalating legal tension between Congress and the Trump administration in the wake of Trump’s second presidential term—a period marked by aggressive executive action, judicial pushback, and efforts to reframe the narrative around constitutional boundaries and the January 6th attack. Andrew Weissmann and Mary McCord, both former DOJ officials, bring their deep expertise to analyze recent court decisions, emergency legal battles over immigration, the controversial suggestion of compensation for January 6th rioters, the independence of the judiciary, and new developments in federal regulatory power.

Key Discussion Points & Insights

I. Comparative Framing: Brazil’s Coup Trial vs. U.S. Responses

• 00:41-04:10
  Weissmann begins by referencing the trial of Brazil’s former president Jair Bolsonaro for alleged coup attempts following his election loss, contrasting this legal accountability with what’s happening in the U.S., where he implies that those who attempted an insurrection (Jan 6) have not been fully prosecuted or, worse, are being protected.
• Quote:

“We are in fact, not prosecuting anyone in the United States for doing such a thing like that. And indeed, I think in many ways the opposite.”
– Mary McCord (04:10)

II. Breaking News: Judge Breyer’s Ruling on Trump’s Use of Military for Domestic Law Enforcement

• 06:07-19:24
  McCord and Weissmann break down Judge Breyer’s decision that the Trump administration’s federalization of California’s National Guard and initial deployment of Marines in L.A. (ostensibly to support ICE) violated the Posse Comitatus Act, which bars military involvement in domestic law enforcement unless explicitly authorized by Congress.
• Key Segments:
  • Legal questions: Does 10 U.S.C. §12406 or "inherent" Article II authority override Posse Comitatus?
  • Factual findings: National Guard/Marines were used for activities (e.g., traffic stops, searches) deemed law enforcement—not allowed under the Act.
• Quote:

“In short, defendants violated the Posse Comitatus act, period.”
– Judge Breyer, emphasized by Andrew Weissmann (08:15)

• Other Notables:
  • Career military officials testified they always assumed the Posse Comitatus Act applied—reinforcing that the executive’s interpretation was novel and unfounded (15:09).

III. Immigration: Midnight Deportations and Judicial Intervention

• 20:36-28:39
  The Trump administration attempted to rapidly deport Guatemalan minors in violation of their due process rights, prompting a federal judge to issue an emergency order halting removals.
• Key Points:
  • Minors entitled to extra due process under the Trafficking Victims Protection Reauthorization Act.
  • Lawyers discovered the removals due to cases vanishing from dockets and word of children being flown out.
  • The judge intervened at 4:22am on Labor Day weekend, ordering all children returned to ORR custody.
• Quote:

“The idea that you wouldn’t figure out a way to test what the law is first before doing something that is so harmful and cruel...there’s a way to do this and to test it without imposing these kinds of consequences on these children.”
– Andrew Weissmann (22:41)

IV. Judicial Pushback Against Executive Aggression

• 32:24-38:40
  Discussion of the Trump administration’s attempt to sue all federal district judges in Maryland for issuing standard 48-hour removal stays for deportees seeking habeas review—a move the presiding (Trump-appointed) judge condemned as unprecedented and “potentially calamitous litigation.”
• Quote:

“This concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.”
– Judge Thomas Cullen, cited by Mary McCord (36:19)

V. Executive Rhetoric and Targeting of Opponents

• 38:40-40:09
  Hostile language extends beyond judges to any perceived enemy of the administration. The case of Mr. Abrego Garcia, whose attorneys sought a gag order due to vilification by top officials, exemplifies the chilling effect and due process concerns.

VI. January 6th Aftermath: Compensation for Rioters?

• 41:32-49:38
  A surprising proposal: Lawyers (not DOJ policy) floated creating a 9/11-style compensation fund—but for January 6th defendants, not victims. Weissmann and McCord explore the legal and moral inversion at play, the administration’s mixed public signals, and the stark contrast to the Bolsonaro trial.
• Quote:

“This is the fund for the perpetrators, not the victims. Great idea.”
– Andrew Weissmann (07:06, re-iterated at 41:56)

• Related:
  • DOJ response to a Proud Boys civil suit for damages: DOJ files a brief systematically disputing any abuse claims, insisting the prosecutions were constitutionally and factually sound.
  • Quote:

  “Some of the evidence…incontrovertible, they use to describe the photo evidence against some of these proud boys.”
  – Mary McCord (48:25)

VII. Congressional Power vs. Presidential Authority

A. The Tariff Decisions & Major Questions Doctrine

• 50:43-53:40
  Federal Circuit rules that Trump can’t use emergency (IEEPA) authority to impose tariffs—a prerogative reserved to Congress. This decision is rooted in the Supreme Court’s “major questions doctrine,” originally deployed against the Biden administration.
• Quote:

“Tables are turned. If Congress wanted the President to be able to issue these kind of tariffs, it would have said so clearly in the statute, and it did not.”
– Mary McCord (53:40)

B. Firing of Federal Reserve Board Member Lisa Cook

• 55:05-57:18
  President fires Lisa Cook for alleged misrepresentations about her residency. The administration claims public tweets suffice as “notice” for due process—an argument the judge finds incredulous.
• Quote:

“It is unbelievable that [the government lawyer] said yes, that’s…that the lawyer said, yes, I am [arguing tweets are due process].”
– Andrew Weissmann (56:48)

C. D.C. Circuit Foreign Aid Decision

• 58:08-61:16
  Ongoing litigation over the administration’s freeze of foreign aid. The D.C. Circuit strategically remands the case, allowing claims to proceed and buying time to keep congressional funding flowing, fending off a Supreme Court emergency stay.
• Takeaway:
  This is another example of the judiciary serving as an institutional check, preserving Congress’s appropriations and procedures against executive encroachment.

Notable Quotes & Timestamps

• 04:10 – “We are in fact, not prosecuting anyone in the United States for doing such a thing like that. And indeed, I think in many ways the opposite.” (McCord)
• 08:15 – “In short, defendants violated the Posse Comitatus act, period.” (Weissmann summarizing Judge Breyer)
• 22:41 – “The idea that you wouldn’t figure out a way to test what the law is first before doing something that is so harmful and cruel...there’s a way to do this and to test it without imposing these kinds of consequences on these children.” (Weissmann)
• 36:19 – “[T]his concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.” (Judge Cullen, via McCord)
• 41:56 – “This is the fund for the perpetrators, not the victims. Great idea.” (Weissmann)
• 48:25 – “Some of the evidence…incontrovertible, they use to describe the photo evidence against some of these proud boys.” (McCord)
• 53:40 – “Tables are turned. If Congress wanted the President to be able to issue these kind of tariffs, it would have said so clearly in the statute, and it did not.” (McCord)
• 56:48 – “It is unbelievable that [the government lawyer] said yes, that’s…that the lawyer said, yes, I am [arguing tweets are due process].” (Weissmann)

Episode Chronology & Timestamps

• 00:41 - Opening reflections: Brazil’s trial, nationalism, and framing for U.S. legal issues
• 04:10 - Trump administration’s military deployment in California and Posse Comitatus Act
• 06:36 - Legal and factual analysis of Judge Breyer’s ruling
• 15:09 - Deference to military career expertise
• 19:24 - Emergency immigration removals: Judicial intervention for Guatemalan minors
• 28:39 - Government’s misleading justifications and judicial demand for due process
• 32:24 - Trump DOJ’s lawsuit against Maryland’s federal bench
• 36:19 - Judge Cullen’s rebuke; threats to judicial independence
• 41:32 - Proposed compensation fund for Jan 6th rioters; Civil suit by Proud Boys
• 49:38 - Challenges to special appointments & separation of powers
• 50:43 - Tariff emergency power ruling; Major questions doctrine
• 55:05 - Cook firing and due process; Use of tweets as legal notice
• 58:08 - D.C. Circuit’s foreign aid funding maneuver

Memorable Moments

• Judge Breyer ruling on unlawful military interventions (08:15)
• Labor Day weekend judicial heroics saving Guatemalan children from deportation (25:40)
• Trump-appointed judge decrying “calamitous litigation” against the judiciary (36:19)
• The irony and outrage at a “compensation fund” for Jan 6th perpetrators (41:56)
• The administration's claim that Lisa Cook had legal notice via the President's tweets (56:48)

Tone and Original Commentary

Andrew and Mary combine dry humor, legal precision, and a sense of deep alarm about the erosion of constitutional norms. The episode is rich with war stories, examples from their careers, and a repeated emphasis on the critical role of courts in this period of institutional conflict.

Conclusion

This episode provides a thorough, timely, and often urgent account of a legal system under immense strain: judges are asserting independence, the administration is testing—and often breaking—bounds of legitimate power, and basic rights hang in the balance. The hosts urge listeners to be vigilant, pay attention to judicial reasoning not partisan rhetoric, and recognize the rule of law’s fragility in today’s climate.