Boggles the Mind

Summary

Main Justice Podcast Episode Summary Episode Title: Boggles the Mind
Release Date: January 28, 2025
Hosts: Andrew Weissmann and Mary McCord
Produced by: MSNBC

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Introduction

In the episode titled "Boggles the Mind," hosts Andrew Weissmann and Mary McCord delve into critical developments within the Department of Justice (DOJ) and the ramifications of a recent executive order targeting birthright citizenship. Drawing from their extensive legal backgrounds, they analyze the implications of these actions on U.S. law, the Constitution, and democratic institutions.

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Executive Order on Birthright Citizenship

Understanding Birthright Citizenship

Birthright citizenship is a legal principle grounded in the 14th Amendment of the U.S. Constitution, which grants citizenship to all individuals born on U.S. soil. This principle, known as jus soli or "right of the soil," was established to overturn the contentious Dred Scott decision, ensuring that all persons born in the United States are recognized as citizens regardless of their parents' status.

The Trump Administration's Executive Order

The discussion centers around an executive order issued by former President Donald Trump, aiming to revoke birthright citizenship for children born to certain immigrants. The order specifies two categories:

1. Undocumented Mothers: If the mother is undocumented and the father is neither a U.S. citizen nor a legal permanent resident, the child does not receive U.S. citizenship.
2. Lawfully Present Mothers: If the mother is lawfully present on a temporary basis (e.g., holding a visa) and the father is not a U.S. citizen or legal permanent resident, the child is denied citizenship.

Mary McCord elaborates on the complexities and potential equal protection violations arising from these provisions, especially concerning cases where the father is deceased or unknown.

Constitutional Challenges and Litigation

The executive order immediately faced legal challenges, leading to multiple lawsuits filed by states and advocacy groups. Mary McCord highlights a significant case brought forth by CASA and the Asylum Seeker Advocacy Program (ASAP) on behalf of five pregnant mothers under temporary protected status (TPS).

Notable Quote:

"The 14th Amendment says explicitly that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States."
— Mary McCord [19:30]

Andrew Weissmann underscores the constitutional inviability of the executive order, emphasizing that altering birthright citizenship would require a constitutional amendment.

Notable Quote:

"The dismissal of this case cannot undo the rampage that left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage."
— Judge Chutkan [07:18]

Court Rulings and Government Response

Judges responding to the executive order have largely deemed it unconstitutional. For instance, the Washington state judge referred to the order as "blatantly unconstitutional" and granted a temporary restraining order to halt its enforcement.

Notable Quote:

"I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind."
— Andrew Weissman [29:00]

The Trump administration's legal defense posits that individuals subject to other jurisdictions (e.g., dual citizens) are not fully under U.S. jurisdiction, a stance met with skepticism by the hosts.

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Undermining DOJ Independence

Purges and Policy Shifts

Andrew Weissmann and Mary McCord express deep concern over recent actions within the DOJ that threaten its independence. These actions include:

• Firing of Inspectors General: At least 17 Inspectors General have been removed, violating the required 30-day notice period.
• Hiring Freezes and Purges: Implementation of hiring freezes and removal of probationary employees and participants in the Honors Program, which recruits top law graduates.
• Reassignment of Senior Executives: Movement of senior executive service members from their areas of expertise, weakening the department's operational capabilities.

Notable Quote:

"It's so counterproductive to the mission of the administration."
— Andrew Weissmann [45:15]

Impact on National Security and Policy Implementation

The removal of seasoned professionals, especially in national security, undermines the DOJ’s ability to effectively protect the nation. Mary McCord provides examples of key figures in counterterrorism and counterintelligence being displaced, eroding institutional memory and disrupting critical operations.

Notable Quote:

"You need that regardless of whether it's national security, health, whatever it is. And that's what really, really worries me."
— Mary McCord [49:43]

Historical Comparisons

The hosts draw parallels to previous administrations, notably referencing the Bush 2 era's controversial removal of U.S. Attorneys, highlighting the recurring threats to DOJ's impartiality and effectiveness.

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Confirmation Hearings and Nominee Scrutiny

FBI Director Nomination: Keshe Patel

Andrew Weissmann discusses the contentious nomination of Keshe Patel for FBI Director. Concerns revolve around Patel's inconsistent statements and qualifications, as highlighted in a recent New York Times article by reporter Charlie Savage.

Notable Quote:

"There's a Supreme Court case directly on point with respect to certain categories that are covered where those people have rights that are being ignored."
— Andrew Weissmann [36:56]

DNI Nomination: Tulsi Gabbard

The nomination of Tulsi Gabbard for Director of National Intelligence is scrutinized, with the hosts questioning her expertise and suitability for overseeing the intelligence community.

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Broader DOJ Policy Concerns

Sanctuary Cities and Civil Rights

Mary McCord outlines the administration's intensified focus on mass deportation, eliminating sanctuary city protections, and halting the Civil Rights Division's initiatives to reform policing practices. These measures signify a broader crackdown on immigration and civil liberties, raising alarms about future DOJ policies.

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Conclusion

The "Boggles the Mind" episode of Main Justice presents a comprehensive analysis of alarming trends within the DOJ and executive actions challenging foundational constitutional principles. Hosts Weissmann and McCord articulate the profound implications these developments hold for the rule of law, democratic integrity, and national security, urging vigilant scrutiny and legal resistance.

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Notable Quotes

• Mary McCord [19:30]:
  "The 14th Amendment says explicitly that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States."

• Andrew Weissmann [29:00]:
  "I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind."

• Andrew Weissmann [45:15]:
  "It's so counterproductive to the mission of the administration."

• Mary McCord [49:43]:
  "You need that regardless of whether it's national security, health, whatever it is. And that's what really, really worries me."

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Additional Information

For more in-depth discussions and updates on these topics, listeners are encouraged to subscribe to Main Justice on their preferred podcast platform and follow MSNBC Premium for ad-free content and exclusive episodes.

Transcript

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[Andrew Weissman]

Hi and welcome back to Main Justice. It is Monday afternoon, January 27th. I'm Andrew Weissman and I'm here with my co host, Mary McCord. Hi, Mary.

[Mary McCord]

Hi, Andrew. And today I get to say good afternoon, Andrew.

[Andrew Weissman]

Nice.

[Mary McCord]

9 out of 10 times I say, or more than that, 9.9 out of 10 times it's good morning. But we are doing this a day early because one of us is unavailable tomorrow morning.

[Andrew Weissman]

So right now a friend of mine said, hey, in light of everything that's going on, I assume you're gonna do daily podcasts. And I was like, no. But we are changing things up a little bit because there's so much incoming. So. So we're first going to start where Mary and I are going to give a take on something that's happened in the last week that we found either shocking, surprising, or didn't get enough attention. Then we're going to sort of turn to what we normally do, which is to cover a little bit more in depth with a caveat when Mary and I were talking about this, which is there's so much to cover and we want to make sure we are hitting the key things so we're not able to go at least today, now, today, in as much detail and depth as we like to. So Those are sort of the building blocks of today's show. But, Mary, what's the heart of it? What are we going to talk about?

[Mary McCord]

So, yes, so we will dig into the birthright citizenship litigation. I think we mentioned this executive order last week. We'll talk about what the executive order purports to do. It's already been temporarily enjoined by one court, and there are lots of hearings coming up in very short order. We're gonna then talk about some of the issues. You know, we've had a theme about the importance of the independence of the Department of Justice. And there's a whole lot of things that have happened between our last episode and today that show a real, I think, effort and intent to get rid of that type of independence, not just at the Department of Justice, but independence even in other departments and agencies. You know, get rid of the people who don't essentially pass the loyalty test because he doesn't really want to be questioned. The administration doesn't necessarily want to be questioned on any of its policy. And then we will talk through some of the specific things that have been happening at the Department of Justice in the last week, including some new policy memos, new priorities, the halting of certain types of cases, et cetera. And then finally, we'll take a real quick look ahead at what's on the calendar this week, including a scheduled confirmation hearing for FBI director nominee Keshe Patel and also the dni, the Director of National Intelligence, Tulsi Gabbard. But first, okay, what's your hot take on something that happened this week? There's just so much that you want to make sure listeners hear about.

[Andrew Weissman]

Okay. So my hot take for last week is many people may have heard that the president pulled the security detail for a variety of people, for Mike Pompeo, the former secretary of state, General Milley, and Dr. Fauci. I'm just going to focus on Dr. Fauci for a second. I'm not going to go on and on about all my opinion of him and what we owe him. I want to talk about the idea that this was something that Trump decided to do and announce, that it was announced publicly. There's no question that you could decide for any particular person that a threat had dissipated and that you would sort of quietly pull security or pull it back. So it's not as much. There's nothing wrong with that if that had been the situation. But the only reason that you would announce this publicly is one of two things that I can think of. One is to send A message to other people that this is going to happen if you do not toe the line. And the second is to put a target on their back is to actually make it clear that there's going to be less resistance. You have a clearer path without that. And it could be one or both of those things that is happening. And so the idea that you would do this publicly, to me, is proof positive what is going on in terms of retaliation and the message to people going forward.

[Mary McCord]

Yeah. Otherwise, like you said, you would do it quietly. And, I mean, I think for many of us, we can see a lot of these things are being done, at least it appears, for retaliatory reasons. In addition to these security details being pulled of various people, security clearances were revoked for a whole list of people, starting with about 50 former national security officials who had written a letter a couple of years ago on the issue of the Hunter Biden laptop, you know, suggesting that it might really be Russian misinformation that is suggesting that certain things might be on this laptop. Now, obviously it turned out that there were relevant materials on the laptop to some of the things that had been investigated, but this was the best knowledge of the national security officials who signed that letter and their. All of their names. They all had their security clearances revoked. And I think it is even clear in revoking those that the reason was because they signed that letter. So it's basically. Basically saying we are retaliating against you for exercising your First Amendment rights.

[Andrew Weissman]

And just to be clear, the reason that you want people who have been in those positions to have continued clearance is not. It's not a courtesy. It's because they're a resource. Yes. That expertise is something that, especially in an area of national security that is apolitical, supposed to be apolitical. You want that ability to go to those people and get their assessment and get their take, and you want that pushback and push and pull and testing of intelligence.

[Mary McCord]

And presidents and their administrations frequently go back to former national security officials, long retired, you know, for their assessment of things. So, yes, okay, that is a really significant hot take. Mine is actually a continuation of something we talked about last week, but now we're seeing the fallout. We talked about the pardons, the blanket pardons of everyone convicted of any kind of crime related to the attack on January 6th. On that day, the attackers on that day, except for 14 people who got commutations, which means it cuts their sentence short, but it doesn't actually get rid of their conviction. And then there was also a direction in that executive order that the Department of Justice would move expeditiously to dismiss with prejudice any outstanding cases that hadn't yet gone to verdict, not yet having had a trial or a guilty plea. So what we're seeing now, and this is the notable thing I wanted to mention, is some judges pushing back. We've had at least three. There could be more who have, in granting the government's motion to dismiss, have made statements in court, if there was a court appearance. But I think this has almost been entirely in writing. And I've read what they've written, have really made clear that the dismissal does not wipe away and the pardons and the commutations, none of it wipes away the reality of the violent attack on the Capitol on January 6, 2021, and the effort to overturn the results of the election that day, that whatever the President has done with the stroke of his pen can't change that reality. And judges have, when asked to dismiss with prejudice, and our listeners will know the difference of with prejudice means it can never be rebrought again. Without prejudice means it could potentially in the future be rebrought again. Some of the judges have said we will dismiss because we know it's the executive's prerogative to decide what to prosecute and what not. But the rules require it to be with leave of the court. And we see no reason has been given to us to dismiss this with prejudice, that the only reason in the executive order about these pardons is, is to end a grave national injustice, which, of course, the judges do not believe there was. And so they have pushed back at least a few of them and said we're dismissing without prejudice. Even more significant in some ways than that is that Judge Maida, who presided over the trials of the Oath Keepers, remember, nine of the people who got commutations were members of the Oath Keepers found guilty of seditious conspiracy and other charges among them. He put out an order on Friday that amended the conditions of supervised release for those nine members of the Oath Keeper. I think it was all nine. I'm counting eight here, so maybe my counting is wrong. That includes location restrictions of requiring them to not knowingly entered into the District of Columbia without first obtaining the permission of the court and second, ordering them to not knowingly enter the US Capitol Building or the surrounding grounds, effective at noon on Friday. Now, supervised release conditions are conditions that either can be applied by a court when you're not sentencing someone to incarceration, or they kick in at the end of your term. Of incarceration. And if you violate those conditions, you could be re incarcerated. So Judge Mehta did this essentially on his own, as far as I can tell. But the response is almost more surprising to me. I should say not surprising, actually. Shocking. I know I used to think it was weird to say shocking but not surprising. But the tenor and tone is what is shocking to me. The interim U.S. attorney in the District of Columbia, who is not putting interim in front of his name, is signing things. U.S. attorney for the District of Columbia. His name is Edward Martin. He has not been presidentially appointed in the Senate confirmed. So he has no business saying he's the U.S. attorney. You can say he's the interim U.S. attorney because that's what he is. He immediately put out a public statement that was pretty political in terms. He said if a judge decided that Jim Biden, General Mark Milley or another individual were forbidden to visit America's capital even after receiving a last minute preemptive pardon from the former president, I believe most Americans would object. The individuals referenced in our motion, because he files a motion then asking Judge Maida to immediately vacate that order. Those individuals have had their sentences commuted. Period, end of sentence. Now, never mind that a pardon is different from a commutation, just the sort of political tenor of that statement is surprising to me for an interim U.S. attorney or someone in the Department of Justice. And then he actually came in and filed a motion requesting really kind of demanding that Judge Maida vacate this order of supervised release. And what's, I can understand that that's their position that the final sentence has been commuted and that the supervised release was part of that sentence and therefore is commuted. And we'll see, you know, whether Judge Maida, how he responds to this motion. But what's surprising to me, the U.S. attorney's office does not represent these defendants. It wasn't their attorneys that came in and said, judge Maida, you can't do this. It was the government who had prosecuted him that came in and said, judge Maida, you can't do this. That's what's remarkable to me.

[Andrew Weissman]

So I'm going to play devil's advocate. I totally agree with you on the tenor is shocking. And we've talked about the writings that Emil Beauvais now at the Department of Justice and Todd Blanche in connection with their filings when they represented Donald Trump personally as his criminal defense lawyers were filing in Manhattan, and the judge's response to that. So I totally agree with you on that. I do think that if their sentence was commuted. If there's no sentence, the supervised release term is legitimately viewed as part of that sentence. So I think that I can understand the government's legal position that the supervised release period is part of the sentence. And if the sentence has been commuted, whether they like it or not, you can't now impose a condition. And I also don't have a problem if the government, if it thinks something is just not legally feasible, even though it's sort of against its initial interests, which was prosecuting these people, that it has an obligation to say, you know, I don't think you can do this legally. So I don't have a problem with that. I have a problem with exactly what you said, which is the manner in which it was done was just so not in keeping with how you behave at the department in terms of what we can expect in the norms just seem to be pretty shocking. I did want to point out, Mary, to your point about the judges who are saying that you can do all of these pardons, but it doesn't change the underlying facts. I just wanted to quickly read something that I found really poignant from Judge Chutkan. I'm just going to read a little snippet of it. She said, and this is a quote, the dismissal of this case cannot undo the rampage that left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage. It cannot diminish the heroism of law enforcement officers who struggled, facing serious injury and even death, to control the mob that overwhelmed them. It cannot whitewash the blood, feces and terror that the mob left in its wake. And it cannot repair the jagged breach in America's sacred tradition of peacefully transitioning power. That's all a quote she is citing and quoting from at times from D.C. circuit cases. But I just found it so poignant that she's basically saying, you can't whitewash this. I mean, you can try to, but this is part of the historical record for good. And it's nice to see a judge with Article 3 powers and Article 3 tenure speaking out, as I think she should based on what's happening.

[Mary McCord]

Yeah. And, you know, I think it's important too, because judges, and I think this is correct of them, you know, they don't usually write op EDS or speak on television, but they can speak through their actual rulings on motions in front of them. And that's what we're seeing here. And I do agree with you that I do think the government has an obligation to file something if they think the judge has got it wrong even when it comes to these conditions of supervised release. But you would expect normally they might kind of do it in tandem with the defense counsel. Right. Reach out to the defense counsel. Defense counsel is moving saying, you can't do this. And the government's coming in saying, we agree with the defendants on this. So it just seemed interesting to me that they got out ahead of everything.

[Andrew Weissman]

Totally.

[Mary McCord]

Particularly when put together with that statement.

[Andrew Weissman]

Yeah. So, Mary, why don't we take a quick break and then come back and talk about birthright citizenship, what it is, what the Constitution provides, what Donald Trump's administration is claiming. And then there's a whole host of lawsuits and Mary McCord and ICAP has brought one of those cases. And so we are really lucky in that sense to have somebody who's really steeped in the details here to give us an overview of what's going on.

[Mary McCord]

All right, let's do that. Foreign.

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[Andrew Weissman]

To Mary Birthright citizenship what is it?

[Greenlight Representative]

Right.

[Mary McCord]

Well, as we talked about last week, because when we recorded last week, we did have the president's executive order that purports to be revoking the right to birthright citizenship for the children of certain immigrants. And there were two categories, you'll recall. This is mothers who are undocumented, where the father is not a citizen or legal permanent resident.

[Andrew Weissman]

Say that again slowly, because I'm just trying to get my head around it. Right.

[Mary McCord]

Where the mother is undocumented and the father is not a citizen or legal permanent resident, then that child would not have citizenship, U.S. citizenship. Okay, so the second category is where the mother is here lawfully. There's no unlawful presence here. She's here lawfully, but temporarily, and the father is not a US Citizen or legal permanent resident. And the examples of temporarily being here lawfully are visa examples, tourist visa, student visa, work visa. There are other statuses that could be.

[Andrew Weissman]

Years and years and years.

[Mary McCord]

Yes, yes, yes, yes, yes. So could other technically temporary statuses like temporary protected status, which is afforded to people from countries where there are natural disasters or other really, really significant events that make it hard for people to live there. So El Salvador after, you know, massive natural disasters. Haiti after massive national disasters. Sometimes it also has to do with the political situation. So we also have Venezuela. We also have Honduras. Right? Those people are often here for decades even. So many of those people might already have US Citizen children. But if, you know, the mother was either unlawfully here because she's undocumented or lawfully here, I guess we're talking now we're talking about the temporary lawfully here under temporary protected status, student visa, et cetera, a work visa, a work visa Right. That you could keep getting updated. These are visas our government gives you. Your child will not be a U.S. citizen.

[Andrew Weissman]

And if I'm hearing you, it's looking at the mother, but then it's also considering the status of the father.

[Mary McCord]

That's right. Because if the father is a citizen, then that means this carries on to the. To the baby. Now, that part in and of itself raises all kinds of questions, like is that an equal protection violation? Because we're treating mothers and fathers differently. And also, what if the father is, you know, dead or unknown or something like this?

[Andrew Weissman]

Right.

[Mary McCord]

And it does say at the time of birth. So presumably dead means even if the father had been a US Citizen, that that baby of a US Citizen father would not be a US Citizen. It also leaves compl. Completely unanswered. What about the people lawfully present because they have a pending asylum application, which means you get papers, you are lawfully here, you're not unlawfully here, but it's not been decided yet. Is that temporary or is that permanent? Because if your asylum application is granted, you will obviously be here permanently.

[Andrew Weissman]

And at what point in time do you look at it? So let me just ask you to backtrack. This is what the Trump administration, through an executive order, has done. Say, that's not a congressional statute, it's an executive order from the President. But just to go back to the beginning, which is birthright citizenship.

[Mary McCord]

Yeah. What is it?

[Andrew Weissman]

What's the problem? Why is this a problem? And I know you, among many others, filed a lawsuit. What does the Constitution provide?

[Mary McCord]

Sure.

[Andrew Weissman]

And how did that come about?

[Mary McCord]

So that's one of the reasons this is so shocking. Right. Because the 14th Amendment says explicitly that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. There is also a statute who says the same thing. And I will say that this principle of birthright citizenship comes from an ancient common law principle known as jus soli, meaning right of the soil. So Even before the 14th Amendment, that principle of if you're born here, you're a citizen was what was generally applicable. But the 14th Amendment was enacted, you know, to address terrible, terrible decision of the Supreme Court that had exempted African Americans from that Jew solely principle of you are a citizen of the place where you are born. A much reviled decision at this point in time. But nevertheless, that is one of the things, and also, you know, post Civil war, that the 14th Amendment was designed to address and make permanent, that there would never be such a blight as that decision. Which was called Dred Scott, often known as the Dred Scott case. So ever since then, it's been enshrined in our Constitution, which means it would require a constitutional amendment to revoke that right under the Constitution to birthright citizen. So what we know now based on it was not in any rationale in the executive order. But of course, this was immediately challenged. There are multiple cases out there now, and I'm not even gonna say the number because there keep being new cases filed, but some of the first and most significant ones were two different cases filed by groups of states who are saying we can challenge this because federal government, if you change the rules here so that a lot of babies born in our state are not citizens, that's actually going to very much change what kind of benefits they're eligible for, federal benefits. And if they're cut off from a lot of those, health care, food, nutrition assistance, things like that, we are going to have to pay for those. So we, the states are injured. Also talked about injury in other ways, other cases, including the case that my organization brought on behalf of CASA and immigrant rights group asap, the Asylum Seeker Advocacy Program, and five pregnant mothers who are here on most of them, this temporary legal authority. One is a student visa holder, one is both a TPS holder and asylum applicant.

[Andrew Weissman]

And what is a TPS holder?

[Mary McCord]

Temporary protected status. As we were discussing earlier, she's from Venezuela, was a medical doctor there. She and her husband had been here for years. They own a home, et cetera.

[Andrew Weissman]

Can I just say something? This is, what's. What's the expression of like, pigs get fat but hogs get slaughtered? I mean, it is outrageous enough to be challenging birthright citizenship and to be hearkening back to the history of Dred Scott and the severe racism of that decision. It's not shocking that it's doing that, but to not just do that, but then go and extend it to people here lawfully who have children here when they are here lawfully to me is just beyond the pale. But anyway, that's. No one needs to know my outrage. Let's get. Sorry, I've interrupted.

[Mary McCord]

No, no, no. And it's people we've actually given. Our government has given lawful status to. It might be temporary, but it's lawful status.

[Andrew Weissman]

And to your point about the language of the 14th Amendment, those people are here lawfully and they are subject to our laws. They are subject to our jurisdiction. They have to abide by our laws, and they can be punished and regulated by our laws by being here and.

[Mary McCord]

This is where it gets interesting. Right. Because some people might be saying, why would the government do something so blatantly, you know, unconstitutional? And their theory, which was not clear in the executive order, but it becomes clearer in the opposition to the case that was filed in the state of Washington by a group of four states. It got a hearing very quickly on the temporary restraining order. And in response to the motion for that temporary restraining order, we learned a little bit more about how the US Government intends to defend this.

[Andrew Weissman]

And the temporary restraining order. Is the plaintiff saying, stop this, put it on hold.

[Mary McCord]

I need it to be enjoined, which is the legal word for this won't go into effect. The issue with the temporary restraining order, though, is it's only good for 14 days. And I'm going to come back to that because our case is now on. We then had a hearing, and our case is on a fast track for the preliminary injunction hearing next week, which will not have a similar 14 restriction. It's still preliminary, but it's indefinite until the merits are decided. And I'll come back to that. So we learned a little bit because the government had to file something. Right?

[Andrew Weissman]

Right.

[Mary McCord]

And it appears that their theory is that subject to the jurisdiction thereof does not really mean are you subject to our laws? Because everyone here is subject to our laws. Right. Even if you are a diplomat and you have diplomatic immunity from prosecution, it doesn't mean you can just flagrantly disobey our law. It just means you couldn't be criminally prosecuted. We could kick you out and say, diplomat, you gotta go home because you're violating our laws. You just can't be criminally prosecuted. What the government seems to be saying is we read subject to the jurisdiction of the United States, meaning you don't have allegiance to any other state. So if you're here on temporary status, you're a student visa holder, for example, you haven't denounced your home country of birth. And so you still have allegiance to that country, which means you are not. You know, that's. Well, I'm trying to make their argument for them that they made. And it just, like I stumble on my words because it doesn't actually make.

[Andrew Weissman]

Sense in my head. I've got like a, you know, because we're both lawyers, litigators, I've got. I've got a bunch of thought bubbles going. But that doesn't make any sense for the following 73 reasons.

[Mary McCord]

That's right.

[Andrew Weissman]

But.

[Mary McCord]

Okay, that's right.

[Andrew Weissman]

Maybe start with this. What did the judge in Washington who was doing the tro. What did he say? And that was a, I think, a Reagan appointee.

[Mary McCord]

It's true, it was. Let me just try one more way of describing their argument. They basically are saying, the government's basically saying these people are still subject to an. A foreign power, not just the U.S. therefore, they're not subject to the jurisdiction of the United States.

[Andrew Weissman]

Just like a dual citizen.

[Mary McCord]

Yes, just like dual citizens. And again, you know, this is why I think this is really, really a far out theory, because there are a lot of people this is going to apply to, well, their children in the United States who would have had no idea ever, and no reason to think that this would ever be applied to them. So the judge was not having any of this. In a very short four page order, he frankly, you know, scolded the government in many ways for, you know, even trying to defend this, what he called blatantly unconstitutional.

[Andrew Weissman]

Yes. The judge there said, quote, frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind, unquote.

[Mary McCord]

And he granted this temporary restraining order that enjoins the enforcement of sort of some of the operative sections of the executive order.

[Andrew Weissman]

By the way, one of his lines was, where were the lawyers?

[Mary McCord]

Yes, that's why I said he was basically scolding, scolding the lawyers, not so much the Department of Justice, but like who was advising the President that he could do this. And it's interesting because I saw a clip of the President being asked about this one of the days between last week and today, and they're all a blur to me. And it even seemed like he was not at all certain of its illegality. He said something along the lines of, we'll see, we'll see what they do in the courts. And, you know, you'd think that if something was on strong legal footing, you might say something about that strong legal footing, or even if you're saying, my lawyers tell me it's on very strong legal footing. But he didn't even attempt to do that. It sort of felt like, hey, you take your chances with things. I'm going to do what I think I, you know, I want the result to be and we'll see what the court upholds and what the court doesn't. So I want to talk about what this temporary restraining order means, because under the rules, temporary means temporary because they're not really. They're briefed, but they're briefed quickly. The arguments are fast, so they're really limited to 14 days. And the plaintiffs in these various cases, and ours, of course, is not based on, you know, the harm to the states of having to provide benefits. Ours is based on. We have actual, you know, pregnant mothers who's been thrown into chaos, don't know whether their babies are going to be citizens.

[Andrew Weissman]

You have the direct harm. You have the direct harm. Direct harm.

[Mary McCord]

Some who are due, you know, pretty soon might, you know, well, I should get to why they might hasten their birth. The government also did something interesting in its opposition to the brief in Washington. The government said this doesn't take effect until February 19th, so we don't need a TRO. TRO is a temporary restraining order. And by February 19th, the government was referring to the provision of the executive order that said that by February 19, agencies like the Social Security Administration, the Passport office, would stop providing documentation to babies born after that date, and that. That until then, they could get that type of documentation. Presumably. However, couple of things. Social Security card doesn't prove your citizenship anyway, so those things are a little bit unrelated, but they're very necessary things. But secondly, even though the executive order said the agencies aren't barred for 30 days from giving documentation, Section 1 of the Executive order just simply says that the categories of babies that I talked about, right, when the person's mother is unlawfully present and the father's not a U.S. citizen or lawful permanent resident, or the person's mother's presence is lawful but temporary, those people, it says, are not privileged with citizenship. And that has started January 20th. So when we came in and talked to our judge last Thursday about scheduling for the rest of the briefings, and the government said there's no need to expedite this because on a really fast track, we want a couple of weeks to respond. Because this doesn't go into effect until February 19th, we said that's not really true, you, Honor, because This provision, Section 1, just declares right now that these babies are not citizens. So there could be all kinds of consequences from that that we don't even necessarily know about yet. And also Section 3 about enforcement, Secretary of State, Attorney General, Homeland Security, et cetera, will take all appropriate measures to ensure that the policies of their departments and agencies are consistent with this order. That also doesn't have a limitation on the start date. It says they have to issue guidance in 30 days, but it says doesn't say anything about when they start enforcing. The judge then did ask the government, what about section one and Section three, And the government just really wasn't able to give an adequate response to that. So she expedited briefing. The government's opposition to the motion for preliminary injunctions due Friday. The plaintiffs, that's the people we represent. Our reply is due Monday. So for those kids who think they want to be litigators, you lose a lot of weekends when you litigate. The hearing will be Wednesday. And I expect she will rule very quickly. And that would all still put us, you know, within the 14 days we would have gotten on a temporary restraining order anyway. And it allows more fulsome briefing. I will say the Washington case where the judge did enjoyed it, he also set an expedited briefing schedule on the preliminary injunction. And I think their hearing is going to be the day after hours and other cases are going to be moving this way, too. So more to come?

[Andrew Weissman]

Yeah, there's a lot more to come. As you mentioned, there's a whole host of cases. We joked before we started that even while we're talking, there may be more being filed because there's so many people who are harmed. But is your sense that this will almost inevitably end up before the Supreme Court?

[Mary McCord]

This is not a good answer because I'm going to say yes and no. I think that every.

[Andrew Weissman]

Welcome to being a lawyer.

[Mary McCord]

If every circuit that this gets to and the cases are being brought places where there's a couple of a few different circuits that would be ruling. So we're in Maryland, which if it goes up on appeal, would be the fourth Circuit. Washington, if it goes up on appeal, would be the ninth Circuit. There's cases in Massachusetts and New Hampshire would be the First Circuit. Right. If all the circuits agree that this is unlawful, unconstitutional, violates the statute, then there really would be no reason for the Supreme Court to take that case. When all the circuits are in agreement, there's no circuit split. And even though one could say, oh, yes, but it's an exceptionally important issue, the question is it's important to the people whose lives are in disarray. But like it's a legal argument that's never been questioned since the 14th amendment. It's in the text of the 14th amendment. So, you know, if the circuits are all in agreement, the Supreme Court shouldn't take it up. But do I think they will? I think there's a decent chance if that's what the Trump administration is asking for, but it'll happen relatively quickly because so much is at stake here.

[Andrew Weissman]

Yep. So this is very much to be continued. And Mary, thank you very much for this sort of overview of sort of the 14th Amendment. And its history and the common law before that and what the government's arguing. But you know what, as this proceeds, we will do an episode to really do much more of a deep dive and there'll be lots of opportunity. And also separating out those sort of arguments with respect to the two groups that are at issue here. But it's also worth noting that although this executive order applies to these two groups, it's not clear to me that the theory that the government is putting forward would necessarily be limited to that in the future. In other words, they started here, but they may think this is like the best from a polling perspective or best from a legal perspective. But I'm not hearing from you, sort of why this would be the end of what they're seeking to do. So, you know, this reminds me just a quick comment before we, we take a break and, and go on to DOJ, but it reminds me a lot of Trump 1.0 where we had the so called Muslim ban.

[Mary McCord]

Yes.

[Andrew Weissman]

One difference there is that that went through various iterations because it was so Pam handed at first and so not thought through. I mean, I remember the first time I read it, I thought, oh my God, there's a Supreme Court case directly on point with respect to certain categories that are covered where those people have rights that are being ignored. I remember Stephen Miller, I believe, had said, well, it doesn't apply to anyone who has rights here. And I was like, really? Because Justice Kennedy read the decision directly contrary. But the point being that this is dissimilar in that it's more thought through. It clearly was a planned thing going in. But it is similar in the cavalier nature of instilling of fear and harm to multitudes where if the law were not clear, there are lots of ways to do this in a much more benign test case way that doesn't cause this kind of wholesale problem of you representing people who are pregnant. And that's just one example of people who are now going to be living in fear of what exactly is going to happen to their children and they.

[Mary McCord]

Don'T know do they need to move, do they need to leave the country?

[Andrew Weissman]

Exactly.

[Mary McCord]

I alluded to earlier. Some may make decisions about their pregnancy based on this representation by the government that it doesn't go into effect until February 19th. Again, we quarrel with that. But you could see a mother who say is due a month after that thinking I'm going to do what I can to have this baby early, before February 19th. I mean, that's, that's the kind of decisions that people would actually be thinking about. And also the stress on pregnant mothers from this concern and worry also has a real impact on health and the health of the unborn child as well as the mother. So yes, the consequences are devastating. And it's entirely possible that in response to court rulings we could see, just like with Muslim ban, subsequent iterations of the executive order that possibly look different. We will have to see. Should we take a break and come back and focus on doj?

[Andrew Weissman]

There's so much more to say about it, but let's take a break, come back and we're going to go back to sort of our home base, which is the Department of Justice main justice, and talk about things that are going on there.

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[Mary McCord]

Welcome back. So before we really get into some of these independence issues, you know, as we left before the break, Andrew, you appropriately, you know, said we're going to get into some of these main justice issues. But just to remind listeners, we were talking a lot about the executive order on birthright citizenship, but who had to go into court. When I talked about the government defending it, those were main justice lawyers. Same with the Muslim ban eight years ago. Main justice lawyers, everything. Every time there's a suit against the government, it's main justice lawyers that will have to defend it or concede. And so when we talked about the name change a few weeks ago, we talked about all roads in many ways lead to DOJ in terms of new executive orders and policies that might be challenged. So in order to address those challenges, and at least in one way to try to ensure that people at the Department of Justice will always get in line and defend things and maybe not push back about what is defensible, what we're starting to see is different moves within the department and elsewhere to kind of assure that type of loyalty. Tell us a little bit about that, Andrew.

[Andrew Weissman]

Okay. So lots and lots of moves. So let me just tick some of those off and then we can discuss them. A lot of senior people in the department who are not at the political level, so they're not in positions that are essentially at will employees. These are career people. And a lot of them are what's called senior executive service. That's a not just an honorific, but it's a sign of just your expertise and how long you've been there. And you have certain protections about how you can be removed, which is not for cause. It's so that you have a career staff. It's an apolitical staff. Those people are being moved out of their fields of expertise. Those are people that, Mary, you and I know very well and you count on to get your work done and to get your policies implemented. And these are apolitical career people. We obviously saw big headlines about inspectors general. Those are independent bodies within almost every agency And I think we're up to 17 inspectors general who have been just. They're just been fired, apparently now illegally, because there wasn't the requisite 30 day notice. And I think that seems like the.

[Mary McCord]

To Congress, not to them. 30 days notice to Congress by statute.

[Andrew Weissman]

Exactly. And so the inspectors general have been removed. That may be sort of on hold because of this 30 day glitch. The one inspector general who has not yet, I'm going to say, or hasn't been fired, and I'd say not yet been fired is the inspector general for the Department of Justice. But more on our speculation on that later about why that may be the case. There also has been a hiring freeze so that there isn't sort of the department taking in people. And there also has been a purge in that people who are probationary employees, whether at the FBI or the rest of the department, summer people, sort of summer intern programs, which, you know, you and I teach. And a lot of our students have applied and gotten offers from that. Those have been rescinded. There's also something called the honors program, which is a way for young law students to get to the department. And it's an apolitical process. You tend to get sort of the cream of the crop from around the country. Those have been rescinded.

[Mary McCord]

Law grads, right? Not students. These are people, many coming out of clerkships. Prestigious clerkships.

[Andrew Weissman]

Yes.

[Mary McCord]

And that honors program is a couple of year program that can then oftentimes lead to a permanent job.

[Andrew Weissman]

Exactly. So lots of steps to freeze things, deaccession people, move people out. The only time I can think of anything remotely like this was a huge scandal in the Bush 2 era where there was an effort to remove certain US attorneys and to purge identified people in the Honors program from coming in if they were perceived to be Democrats or liberals. And this was like a huge controversy and scandal. Exactly. Because it was so improper. So that's something that's happened. I think for you and me, Mary, the part that is so significant is, and I used this on air with you, which is I was trying to think of a really fancy good word for this, but I couldn't. Because unless you're so enamored of this conspiracy theory that you think these people are really going to fight you and not do their job. The people that you have moved out are the people who are going to get your policy done. And people at the department, they understand that elections have consequences. And obviously, if you can't, if you cannot defend, if you cannot fathom personally, you can't support something, you can always leave. Not an indentured servant. But otherwise, you know, every four years, there can be a change in policies, and very often they're policies that you wouldn't promote or think are wise. But you know what? You're not the Attorney general and you're not the president. And you, if you can defend it, you do. And so it's so counterproductive to the mission of the administration. And I know some listeners are going to say, well, isn't that a good thing? Because like, like that way, it's going to be harder for them to get their policies accomplished. You know, that is one way to look at it. But I think the way at least I look at it, I'm pretty sure, Mary, you look at it, is there's going to be an emergency, there's going to be something that happens, and you want your best. People just, let's just take national security. There will be more information coming up about a threat stream to, you know, the Mall of America. I'm just doing hypothetical. And you want your very best, most experienced people there. You don't want to have shunted them off to some back office where they're not going to be using that expertise to protect the American people. And so it's to me, this whole idea that expertise doesn't matter and it's at the sake of the security of the United States.

[Mary McCord]

Yeah. And you and I, of course, can really speak to the importance of that in national security, but it's important elsewhere as well. But in national security, like, one of the people moved has been a deputy, the Assistant Attorney General career for, well more than 10 years, has been in the National Security Division doing counterterrorism and counterintelligence since the division was created in 2006, and was doing that work even before the creation of the Division, back when it was part of the Criminal Division. This is a person who knows every counterterrorism case that the government has brought in modern history. Every counterintelligence case has relationships with the prosecutors in all of the U.S. attorney's offices, with all of the FBI agents across all of their field offices and headquarters who investigate counterterrorism and counterintelligence cases, has relationships with all of the members of our intelligence community whose work sometimes is used in criminal cases under a whole lot of protocols so that our national security secrets are protected. And sometimes, as we've discussed way back when the Mar A Lago case was first brought, sometimes our intelligence community will say, no, you can't use that evidence because it would reveal sources. So sorry, prosecutor, you're just not gonna be able to use that. He's got those relationships. He has relationships with foreign counterintelligence and counterterrorism counterparts among our allies. So you're not only just getting rid of a person who, you know, has implemented policies, you're getting rid of this entire institutional memory and connections and network around the entire national security apparatus that helps protect the United States. And even though I'm not an expert in HHS or Department of Education and other departments where this is happening, I'm sure it's very similar.

[Andrew Weissman]

Right.

[Mary McCord]

If you're at HHS at a high level, you've got relationships with state public health people, you've got relationships with doctors and with foreign public health agencies built up over decades. And so to take those people and move them because. And their only way to say it is because you just don't want to get any pushback. And the person in national security I'm talking to, I've seen that person push back against Democrats and Republicans over different administrations. Doesn't matter. It's like if this person thinks that what the administration wants to do is a bad idea for national security, he's going to say so. He might get overruled, but he's going to say so. And you need that. You need that regardless of whether it's national security, health, whatever it is. And that's what really, really worries me.

[Andrew Weissman]

Yeah. And. And there's such a through line in what we're talking about from the inspectors general being dismissed and there are other examples and there's so much more that we need to get to because there's policies that have also been put in place with respect to sanctuary cities and what's going to be expected. But that seems like we're going to have to come back.

[Mary McCord]

Going to have to do that next week or another week.

[Andrew Weissman]

Exactly.

[Mary McCord]

Suffice to say though, one sentence on that. A whole lot of effort, renewed policy priority being put into mass deportation, scrutinizing immigration and cracking down on so called sanctuary cities. And we'll talk a lot about that. And also halting the work of the Civil Rights Division, including agreements with cities after investigations into policing practices, agreements that were reached in order to institute reforms to prevent the use of excessive force, all put on hold. And last thing on that, already we're hearing in a letter from the acting Solicitor General to the US Supreme Court, please put on hold some of the matters pending up there because we are maybe going to have a change of position that happens not the first time, but, like, this is part of the flood.

[Andrew Weissman]

So, yeah, part of the flood is a good term. So this week we're both keeping our eye on confirmation hearings. As we talked about Kash Patel for the head of the FBI, Tulsi Gabbard for the head of the whole intelligence community. There have been lots of stories in the press about their nominations, their expertise or lack thereof. And we'll do more on that as it progresses. I'm going to give a quick shout out to. I know a lot of people are very disappointed with the New York Times in their coverage, but I have to say, their article on Kash Patel from a couple days ago, Charlie Savage, who was a superb reporter, was on the byline. I would commend that to folks if you want a quick overview of things that he has said that are inconsistent with each other and problematic. Also, there is going to be an upcoming hearing for Robert Kennedy Jr. And a little bit outside of our direct field, but certainly in terms of lives saved is of equal, if not greater importance than the work that Tulsi Gabbard or Kash Patel would be called on to do if they were confirmed in terms of, of science and having, just as one example, vaccines. Yes. I mean, I can't believe I'm even saying this, Mary. I think, you know, that come from this very long medical background in my family. And so they're just appalled at the idea of the, the people say the 20th century was this century of the. At the sort of significance of science and just how much the role of medicine completely changed our lives, the eradication of diseases like polio. So that's going to be another nomination to keep an eye out for. But, you know, this is one where we, I think we have to do like cut.

[Mary McCord]

Yes, yes. Catch your breath. Yes. Because we could just keep going and going and going.

[Andrew Weissman]

Exactly. And I'm going to apologize to you because at times it's really hard not to just vent at some of the things that are going on because one, because we're just citizens and humans, but also because of our background and seeing just bad policy for the country where it's very hard to see this as anything other than sort of denigration of the rule of law. And as I said, I, I just started by saying, you know, I'm gonna end. And then I continued. Okay. It's gonna be a theme.

[Mary McCord]

I'm afraid you gotta laugh sometimes because you can't laugh and cry at the same time. I don't know, maybe you can actually, I think.

[Andrew Weissman]

I think you can.

[Mary McCord]

We're gonna be doing some laugh crying.

[Andrew Weissman]

Throughout the podcast, so thank you very much for listening everybody. And you can always subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free as well as subscriber only bonus content like our recent premium episode about Mary's testimony before the Senate Judiciary Committee around the necessity of independence at Department of Justice.

[Mary McCord]

Feel a little bit like that's fallen on Duff beers, but okay, guys, I shouldn't say that because the Senate Judiciary didn't have any, you know, control over these executive orders or these DOJ policies. Now they certainly have oversight responsibilities. So if they want to hear a little bit more about some of these things, they have the power to do that. So also please remember everyone to send us a question. You can leave us a voicemail at 917-29-34 or you can email us at mainjusticequestionsbcuni.com this podcast is produced by Vicki Virgolina. Our associate producer is Jamaris Perez. Our audio engineers are Katie Lau and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the Executive Producer of MSNBC Audio.

[Andrew Weissman]

Search for Main justice wherever you get your podcasts and follow the series.

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