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Main Justice
"...But There's More!": Harassment, Intimidation and Coercion
00:54:11
DOJ drops subpoenas against New York Times journalists, while the government subpoenas 14 major law firms.
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Mary McCord
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Andrew Weissman
Simone Sanders Townsend and I have known each other for more than a decade, tussling over politics and policy when she worked in the White House and I reported on it.
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Mary McCord
And now we're friends and colleagues. And on our podcast, Clock it, we are positioning ourselves at the intersection of culture and politics.
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Andrew Weissman
Clock it is where we talk about what we see and hear in the news. So you can start to clock it too.
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Jacob Soboroff
Clock it with Simone and Eugene. All episodes available now.
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Andrew Weissman
Hello and welcome back to Main Justice. It is Monday afternoon, July 27th. I'm Andrew Weissman and I'm here with my co host, Mary McCord. Hi, Mary.
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Mary McCord
I was about to say good morning, Andrew, but it's actually not morning. We're doing one of those rare afternoon recordings.
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Andrew Weissman
I know for two conservative institutionalist lawyers, this is a lot of change.
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Mary McCord
Yes.
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Andrew Weissman
It's like it's Tuesday to Monday, then morning to afternoon.
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Mary McCord
So much.
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Andrew Weissman
Yeah, exactly.
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Mary McCord
It's really because our schedules this last few months, but both of us have had travel, we've had work events, we've had other things. So we've had to be flexible. And we appreciate the folks at Ms. Now being flexible with us and each other. I mean, I'm.
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Andrew Weissman
And our audience, Andrew.
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Mary McCord
And our audience. That's right. Because you're not exactly sure when this podcast is going to come out. Keeps people on their toes. Like, when is it going to be Right.
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Andrew Weissman
Exactly. That's the goal. That's the goal. That's the goal. So once again, this week, lots has happened. Lots has happened. Lots. Lots has happened. Lots has happened.
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Mary McCord
Yeah, A lot. A lot has happened. How about that?
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Andrew Weissman
A lot has happened.
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Mary McCord
So we clearly don't do as well in that afternoon.
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Andrew Weissman
I know. It's so weird because I'm. I'm actually not a morning person and I had to be up and speaking this morning. So, Mary, you got a sense of how it went?
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Mary McCord
Yeah, yeah, yeah, exactly.
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Andrew Weissman
Just like stringing a subject, a verb and an object together.
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Mary McCord
Y.
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Andrew Weissman
Well, okay. Well, this is like a perfect segue then, for me to turn it over to you.
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Mary McCord
What subjects and verbs and objects are we going to talk about? So, subjects, Main Justice. So we will start with the update and the developments in a case we flagged very briefly, I think, either last week or the week before, which was the Department of Justice, really, through the FBI, also issuing subpoenas to a number of New York Times reporters reporting about security concerns regarding the new Air Force One, the new fancy cuttery airplane that President Trump has been so impressed by and happy about and wanting to show off, and he decided not to use it to travel from Turkey, where he had been overseas. And the reporting was that that plane didn't have the same type of security features as the original Air Force One. And that reporting was based on unnamed anonymous sources within the government. And that was supportedly the basis for these subpoenas, but they have now been withdrawn. Speaking of subpoenas, we'll talk about an interesting escalation, I guess I would say, between the American Bar Association, a membership group of lawyers who had brought a case way back last spring when we were doing a lot of talking, Andrew, about the blacklisting of law firms by executive order. So then we'll do a quick update on the Katie Fang lawsuit. Katie Fang, a former colleague, when it was msnbc, has filed a lawsuit for the redacted portions and withheld portions of the Epstein files. And there's been a new order in that case. We'll briefly touch upon a new referral by Representative Jim Jordan to the Department of Justice, a criminal referral of Jack Smith on allegations that seem pretty thin to me.
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Andrew Weissman
I would say.
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Mary McCord
Non existent, maybe.
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Andrew Weissman
Yes, exactly. They are on their face. Yes, non existent.
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Mary McCord
That's right. And then we'll close out today with some immigration related news. Two different interesting cases. Yes.
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Andrew Weissman
But why don't we turn to the New York Times? And the New York Times, as you mentioned, was reporting on something that is newsworthy and that could be embarrassing if true about the president, which is he wants to use this plane when it wasn't ready in terms of its defensive gear, its communications gear compared to the traditional Air Force One. And he had taken it overseas, but he didn't take it back from Turkey because of reports of threats. And I should say the New York Times, in spite of this investigation, has continued to report on this story and in various ways. And kudos to them for doing that. They're quite the dog with a bone. And they have the resources, too, but they also are showing the backbone, not just the resources, to be like we are journalists and we're going to report this and it's commendable. And you know, because there's a lot of issues that people have raised, including, you know, I'm one of them with the New York Times. But this is one where just on the Reporting side. Good for them for really standing up for the fourth Estate. And if not them, who? But I'm just going to give a little bit of a tick tock of just what happened, because this is one to say what happened is to reach the outrage.
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Mary McCord
That's right.
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Andrew Weissman
So the government issues grand jury subpoenas for testimony. This is the first set of grand jury subpoenas to New York Times reporters. And they serve them not in the traditional way. You would do this for a reputable organization, which, you know, Mary, you and I, when I was the head of the fraud section, you would call up the company and say, will you accept service of process for your employees? They would say yes. If they said no, then fine, then you have to serve them. But that's not the way it would usually work.
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Mary McCord
Right.
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Andrew Weissman
It's just done in a fairly genteel way.
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Mary McCord
And you might, if you already knew they had general counsel, you might say calls directly to the general counsel of the New York Times.
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Simone Sanders Townsend
Right.
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Mary McCord
You know, of course.
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Andrew Weissman
And so you just don't do this in the way that it was done, which was that the agents went directly to the homes of the New York Times journalists. And these are subpoenas for their testimony, which presumably would mean that the journalists would be asked, who are your sources? So this is what's called a big deal. And I'm leaving out a word between big and deal, meaning that to subpoena the New York Times and journalists for this information would go so far up the chain, meaning it's a huge event, it should be a huge event. So then there's a second type of grand jury subpoena that is issued. And these are subpoenas for records. They are for telephone information for two spouses and one mother of the journalist. These are subpoenas that go to a company for the records, but about these people. Third thing that the government does. So remember, we now have two sets of subpoenas, one for testimony, one for records. The third thing that the government does is they go to a judge in the Southern District of New York, which is the office that's doing all of this, and they get what's called a non disclosure order. And to get that, they have to make various representations and it's most important to say both what they said and what they didn't say. So one of the things they said is that the reason we need a non disclosure order is because this investigation is not public. And so that makes sense. That happens from time to time to where you get a non disclosure order because if you were a company getting this information were to disclose it to their customers, suddenly the investigation could be compromised. They could destroy docum, they could talk to witnesses and coordinate their testimony. So it's not unusual to get a non disclosure order. There will be an unusual part of this, but it's not that you're getting it. So they say to the judge, this is a covert investigation. It's not public. The second thing is that what they don't tell the judge is that this has anything to do with journalists and the New York Times. That's not in there. So that's the state of play when the New York Times says, we are going to court to the judge assigned to this, this is now a federal district court judge and we are going to move to quash, that is, to suppress, to stop the subpoenas. And that's when the hearing takes place. Mary, my analogy to this is when I was like a young prosecutor, there was this ad on tv. It was for the Ginsu knife. And the way that ad went was like it dices, it chops it this, but there's more. It goes through cans, but there's more. You get two extra knives, but there's more. And so it just keeps on going like that.
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Mary McCord
It was, you're right.
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Andrew Weissman
And that is this transcript because it's a never ending series of jaw dropping moments.
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Mary McCord
I totally agree. And in fact, I kept thinking if I were government counsel, every time he finished one colloquy with the court, you'd be like, okay, we're done, all right, we'll go home now. But the court wasn't done. But before we jump into that, let me just add two other dates or three other dates to your TikTok, because before we even get to those subpoenas, this is how fast things move. And this becomes relevant to, of course, the judge's inquiry at the hearing. First story by the New York times comes out July 8th, after this, you know, the President flew out of Turkey and it says that this was on the recommendation of the Secret Service because of concerns about the security of the jet. Okay, that's July 8th. July 9th, they report a second story that does say that their story was based on conversations with officials who had been briefed on the retrofitting of the Qatari jet and spoke on the condition of anonymity. So that's July 9th, the very next morning, at least according to various reporting and according to the motion to quash that you were just talked about. July 10th, very next morning. This is when FBI Director Kash Patel gets summoned to the White House and the allegations are that he spends a good, and I saw this in reporting a good portion of the day there and what do you know? But later that same day, the federal agents are at the doorsteps, as you already indicated, the doorsteps of journalists serving them with subpoenas.
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Andrew Weissman
Mary, what are you suggesting to come
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Mary McCord
with testimony on the 15th five days later? But it doesn't even say what the investigation's about, what the testimony sought is about. All it even says is it's an investigation to an alleged violation of law. So that in and of itself is highly, highly unusual.
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Andrew Weissman
So here's some of the things that happen in court. The judge says, first let's talk about the mother and the two spouses. And the government says, oh yeah, that was a mistake. We were using public data and we thought we were getting the toll records, that is the telephone record records for the journalists. So that's a mistake. For all three, it was a mistake. Leave aside that the part that's not a mistake, like there's no way it's a mistake that they serve them at home. So there's things which get incompetence and there's things that look like we're going to be heavy handed because we can't. But this is like, okay, we served these three telephone records, but that's a mistake. But mistake one, two and three because it's three sets of subpoenas.
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Mary McCord
Right. But hang on, to go to thing one, I keep going backwards. You're right. That's one of the things that the judge gets into as soon as he starts going over and over and over again about all the things the government did wrong. But before that, we are on page, you know, one of the transcript, the judge says, who will be speaking for the government? Somebody named Mr. Buckley says, I will be. And then he said, is the government willing to withdraw the subpoenas given that its request to hold the motion in abeyance to take further investigative steps because the government had come in in response to the motion to quash by New York Times reporter and says hold everything in abeyance. We've done some legal research. We've done some legal research and we're going to do some investigative steps. I'm like, oh, maybe you should have done that first.
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Simone Sanders Townsend
Right.
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Andrew Weissman
So one is the family member stuff was a mistake. Second, to Mary's point, in the second Circuit, that is the geographic area where this court is which governs the Southern District of New York prosecutors. There is a 2nd Circuit case, an appellate court case, the leading case. And it says before you subpoena a journalist, there are all these hoops you have to go through because they want to make sure that this is the last resort, as the district court said here, not the first thing. So before you issue a subpoena, you have to be able to show to the court all of the things that you tried to do, short of subpoenaing the journalist. Why do you need the journalist if you can do it through other means?
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Mary McCord
That's right.
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Andrew Weissman
Well, what happens here? I kid you not. The judge says, did you read that case? Were you aware of that case before you issued these subpoenas? The prosecutor says, no, unaware of it. The leading case. And these are career people, these are not new people, and they're not from main justice. They did not read the case. That means how are any supervisors involved in this? Didn't read it. Again, remember, this is one where Mary and I are trying to make sure people understand this is the kind of thing that would go all the way up to the U.S. attorney. It's a big deal to subpoena the New York Times. So they had not read the main case. So they basically are telling the judge, hold these in abeyance while we comply with the law and show all the other steps that we need to take but we haven't yet taken. And the judge goes, it does not work that way. This is the way it works at the moment. You issued the subpoenas, you had not complied with this law. So it is either going to be suppressed by me, in other words, I'm going to quash the subpoenas or you can withdraw them.
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Simone Sanders Townsend
Yep.
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Andrew Weissman
And the reason is because I am applying binding Second Circuit law. Period. This, by the way, could people remember binding second Circuit law? Because I'm going to return to that in a moment when at the very end, I tell you what DOJ said when this was all over. But Mary, there's more.
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Mary McCord
There is more.
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Andrew Weissman
Do you want to do the honors or shall I?
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Mary McCord
Well, go ahead, because you're on a roll here.
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Simone Sanders Townsend
You're right.
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Andrew Weissman
I'm on a. I'm on a froth.
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Mary McCord
That's right.
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Andrew Weissman
So then the judge says, while we're talking about other errors, I was looking at the application that you submitted to the magistrate judge for the non disclosure order. Remember we talked about how that's not something that is unusual. Well, this is what is unusual. Representing to the court that this is a covert investigation, meaning it's not public when it was public.
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Mary McCord
That's Right.
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Andrew Weissman
So if you look at what Mary said about the timing of this, it was in the New York Times.
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Mary McCord
Yep.
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Andrew Weissman
So what is the government's response? That is another inadvertent error.
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Mary McCord
And not just New York Times. It had been in the AP before that, of course. And the Department of Defense, I think it was, had also said something about it publicly. And that's the most important of all because that means you're not even closely holding this. Like the Department of Defense had said something about it.
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Andrew Weissman
So they had represented to the court that it was covert when it was public. They agree that the court should have been told that it had related to reporters when they didn't. All of this is mea culpa, mea culpa, mea culpa. I made a mistake. A mistake. The judge is like going, aren't these starting to add up in this incredible way? The judge says to one of the prosecutors, did you read the application for the non disclosure order before you submitted it to the court?
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Mary McCord
Answer no, because somebody else was handling that. Who? That's somebody else. Then the court said, is he here? Bring him up in this room. And he's like, he's in the gallery. And the court says, but his name is all over these papers. Why is he in the gallery and not a council table? Bring him up. I mean, I would have been mortified, Andrew. He's like, are you ever going to do this again? And he's like, no, your honor, I'll never do it again. Meaning omit important information that should have been provided to the magistrate judge.
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Andrew Weissman
So ultimately there is a break and pause. The government comes back and says, we withdraw the subpoenas. Obviously it's without prejudice to resubmitting them after they comply with second circuit law. But the judge does something smart. He says, I am retaining jurisdiction. Meaning you can't judge shop to somebody else. I've got this case. And if you want to issue these grand jury subpoenas again, you have to come to me first. And so making sure this isn't going to repeat itself without court oversight, can I just tell you, Mary, that is absolutely awful as all of this is. I just want to read to people one quick thing about the Department of Justice spokesperson says the following. So the most embarrassing thing in the world has now happened, right? I didn't read the law. I've misrepresented things. I've subpoenaed people that were by mistake. The things that. Let me just speak for myself. I would have been curled up in a fetal position in my bedroom thinking
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Mary McCord
I would have resigned.
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Andrew Weissman
I want the world to open up and swallow me. And this is what the Department of Justice spokesperson says about what happened. I'm quoting. The grand jury has a right to hear testimony from all material witnesses in a federal criminal investigation. The spokesperson said this judge's conduct overrides clear longstanding principles and common sense, blocking the grand jury from receiving core evidence in a national security investigation, unquote. That to me is the chef's kiss of all of this. Because you could have errors that happen by lower level people. God knows you and I have seen that. This is the institution that's right wrapping its arms around them, saying, we don't care. We have your back and we are going to misrepresent what happened as opposed to what you're supposed to do, which is you go to court and you say, judge, we are doing an internal investigation or if necessary, we are going to send this for the inspector general to investigate because we take this so seriously. And we will report back to you how this happened and we will put procedures in place to. Because we are so concerned. Yeah, that is how a responsible agency responds.
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Mary McCord
And you know, we've spent a lot of this segment really kind of scrutinizing the conduct of the lawyers in court. And I guess I just want to zoom out for a few moments. I don't know them personally. They may be perfectly fine people. They were clearly under a tremendous amount of pressure because that's partly why I put that timing in there that you've got Patel going over to the White house on the 10th and we've got agents at reporters doors the same day that afternoon. That meant unless they didn't do it, a grand jury investigation had to have been opened up that quickly. The subpoenas issued by the U.S. attorney's offices and then these people going into court under this huge pressure. That's not an excuse for not doing the proper research or anything like that. I just want to say this was so out of the ordinary from the very beginning. It's not 100% on them. And then the second thing is, why are we making such a big deal about this case? And it's not just because of what happened in court. I'll be the first to say, and I'm a journalism major myself. I was a journalist before I was a lawyer. The First Amendment is super, super important. But there is no reporter's privilege the way that a person has a privilege to not testify if it would incriminate themselves. Reporters want there to Be a privilege like that. There is a qualified privilege right that has been recognized by courts because the First Amendment is so important. And it's that qualified privilege. It says it's not that you would never have to testify reporter, but if the grand jury investigation is, as this one is, into the leak of material by a US Government employee, and that was the question here, that according to the doj, who told the New York Times about these security problems with this plane, then you should try everything else before you go invade the First Amendment rights of the reporter by trying to get that reporter to divulge sources. It's different if there's collusion between a reporter and a source to obstruct an investigation. That might be different, but that's where this comes from. Even with all of that said, the Supreme Court has indicated subpoenas can't be used in bad faith. And one of the important arguments made by the New York Times attorney in this case is that didn't end up having to be weighed in on by the judge because there were so many other mistakes, obviously, like not following binding Second Circuit precedent. But there's also this question of was this all just to intimidate and harass not only the New York Times, but to be. To put fear in every other journalist that if you report on things that there is a strong public interest in knowing that you're going to get subpoenaed and you're going to be in the same position as these New York Times reporters. So this was about, I think, at least according to the lawyers, and I think this is true about trying to chill reporters from doing their jobs like so many other things we talked about for the last year and a half, right. About chilling and intimidating reporters. And in fact, after the break, we'll go back to the effort to chill and intimidate law firms and what they've done about it.
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Andrew Weissman
Sounds great. Let's take a break.
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Mary McCord
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Simone Sanders Townsend
Can I just quickly say hello to you? For me, being a part of this place has always been about the people, not about the politics. Why are you holding this sign? You ever been to a protest before? Be safe. People that we cover who allow us to enter their lives. How's everybody doing? Everybody doing okay? How long you guys been in line? I love human beings to spend time Connecting with them is the biggest blessing that I could ask for.
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Jacob Soboroff
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Andrew Weissman
Welcome back. So, Mary, what is the ABA up to? There's this discovery skirmish where the ABA is seeking information from the White House in terms of its communications, just to be clear, with the law firms, but also with at least one private party, Boris Epstein. And that's critical because that's something where the ABA says so it's not privileged. It's not something that's protected because it's with a private party. And it's trying to see what the White House was saying and doing and thinking in its, what you call, I think, correctly, this blacklisting effort. Also whether there was some what I'm going to term extortionate type language, like you do this or else type language. And so the ABA is in some ways almost the stalking horse for individual law firms. So the ABA gets to be this collective, which is it's a little late, but they're doing it. And as you said, the White House then seems to almost be retaliating, saying, well, now we want all this discovery from the law firms who capitulated as well as the law firms that fought it successfully. Now we want their internal communications, which I have to tell you, by the way, I was like, how is that not going to be privileged? I mean, if it's internal communications at law firms, regardless of whether you like or dislike what they're doing, internal communications could be very privileged. But they could have had communications with Boris Epstein that are not privileged. They could have had communications with Sullivan and Cromwell, which reportedly was seeking to have the law firms and helping the law firms, let's just say, resolve their situation with Bar Sepstein and the White House. So what's going on with this skirmish? I mean, it is ugly, but it's one of those things. I maybe in a prurient way, I'm fascinated to see when the discovery comes out, what was going on.
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Mary McCord
So I think what's going on is the US Is trying to get the law firms to pressure the ABA to drop this lawsuit. That's what I think is the goal here. But the way it developed.
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Andrew Weissman
Subscribe. I subscribe.
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Mary McCord
The way it developed is back when the executive orders blacklisting law firms came out, right? We had four law firms that challenged it and all won injunctions against the blacklisting orders. The orders that took away security clearances, limited lawyers at those firms from Even going into government buildings or having discussions with government attorneys, etc. Yes. And also targeted you? My partner, Andrew. Four challenged it. Four got preliminary injunctions. Those have gone up on appeal. That was a whole issue. Right. The government noted appeal, withdrew the appeals, dismissed the appeals, and then reversed itself like 24 hours later.
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Andrew Weissman
And we're, we're still awaiting.
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Mary McCord
And we're still awaiting that decision, right? Still awaiting a decision. But the argument definitely did not go that well for the government. Let's just say that.
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Andrew Weissman
By the way, Mary, you're filled today with understatements that would. Let's just say the argument didn't go well. Is that is true?
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Mary McCord
Yes, that's true.
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Andrew Weissman
It's literally true.
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Mary McCord
I could use some other adjectives, but okay. Yes. Meanwhile, nine law firms, astoundingly to me and to you, I think as we talked about this time, capitulated and gave up things like, okay, we will get rid of our diversity and equity and inclusion practices and we will give millions, hundreds of millions of dollars in pro bono services to causes that the Trump administration favors and all of these ridiculous things. And we thought, why are you doing this? Why are capitulating? So this is when the ABA comes in last spring and says, we're going to file a mega lawsuit to try to enjoin the federal government from doing this again, any of this type of blacklisting. And it was all a First Amendment based lawsuit. That lawsuit meets a motion to dismiss. The government's motion to dismiss is denied. And so the parties go into discovery. And it's in the discovery that, as you indicated, the ABA says, we want those Boris Epstein communications with the White House because Boris Epstein was a private Trump attorney. He was not White House counsel. So government, you can't say executive communications privilege there between the President and top White House advisors. Boris Epstein is your outside counsel. And this is material here to us figuring out what were you planning here? What was the thought process that went into these blacklisting orders and what was the discussion of what the communications would be? And what was, were the communications between Epstein and the law firms, particularly the capitulating law firms, but the others as well. So they filed this discovery quest, is
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Andrew Weissman
it how much like this would be kind of the worst case scenario.
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Mary McCord
How'd you come up with the amount of money?
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Andrew Weissman
How much money are you going to be required to pay to avoid getting an executive order? So it looks very mob, which is very mob. You know, it would be a shame to see something happen to your little mom and pop flower store. But we can provide you protection for a fee.
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Mary McCord
That's right.
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Andrew Weissman
And so the issue is whether there's those kinds of things. And remember, the law firms know the answer to that because the law firms are witnesses to it all. So when the ABA is saying, we want that stuff, they probably have an extremely good sense of what that is.
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Mary McCord
No, that's exactly right. And that's the parlay, right? That's the Justice Department saying, and they have not yet filed any sort of motion to enforce these subpoenas. They only revealed this in their opposition to the ABA's motion to compel this discovery from the White House. They reveal that they've issued subpoenas to the law firms to get what they claim is to get the documents that UABA are wanting to get from the White House. They're like, well, we can't really get these things straight from the White House because of executive privilege, etc. We'll just subpoena the law firms, which is cockamamie.
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Andrew Weissman
And that, by the way, the ABA has come back and said like, that is. That is absurd. Like, there's no such law. That to support that. We're waiting for the judge to rule on this. And in many ways, what we're doing here is flagging for you something that we are obviously keeping an eye out for. But it's useful for you to have on your radar screen, because this could reveal really, let's just say, interesting discovery that is particularly damaging. But the ABA's goal here is to put a stop to this, to say that you shouldn't be able to engage in this kind of blacklisting of law firms. And as we said, it's a little late, but it's better late than never that they are doing this. And it's a way of acting as a collective, as opposed to having each individual law firm have to stand up. They can do it as en masse, like a union or like a NATO, which is something that we've talked about. So that's how sort of like, keep your eyes out for this. Mary, you had mentioned that we were looking also at what's going on with Katie Feng's lawsuit. What is going on there? Because that is also one where Katie Feng is trying to get for victims. And as part of her role, obviously, as a journalist, additional information that is required, she says, to be turned over by the Epstein Transparency Act.
- [30:34]
Mary McCord
Well, so this is also so interesting, and again, just really by way of an update, because we did talk about when the judge in that case, Judge Sullivant, ruled In her fav on most of what she had requested but did not order. And this is where it gets sort of technical legal, we're going back to law school. Did not order the government to produce everything she requested. And it was things like there are certain emails and documents that are redacted that shouldn't be redacted. She had claimed there are certain documents that are in foreign languages that didn't get translated and produced. Right. A list of things like that. So what the judge did is he said he went through. This is a case that I can hear under the Administrative Procedure act. And I'm now going to order the government to show cause why all of these things should not be produced. So the government comes back in and says, well, we're protecting victim names, we're protecting law enforcement names, we're protecting this, that and the other thing that we are entitled to be able to protect under the Epstein files Transparency act, which people might remember has very few exceptions to what allowances for what can be redacted.
- [31:43]
Andrew Weissman
One of which, by the way, is not if it's in foreign language, it doesn't have to be produced. That's just. That idea is just made up from whole cloth by the Justice Department.
- [31:54]
Mary McCord
Yeah. And Katie Feng, of course, objects, files a response through her attorney saying these redactions are inappropriate. And the judge just in the last few days ordered the government to produce some of these documents. But there was something that was remarkable to me about this very short two page order. And I wonder if it's the same to you. What did you see coming through in terms of this judge that is in sync with things we have seen over and over and over again from judges. And it has to do with not necessarily taking the department's word for it.
- [32:26]
Andrew Weissman
Boy, talk about Sarah's softball. So the judge basically skip. Basically, yeah. The judge says, you say government, that you have redacted A, B and C. Prove it. I, the judge want to see what's called in camera, meaning give to me all of those documents. But you say you're protecting victims names, you're protecting government names. I need to see the documents. And that's one where. Mary, you and I have talked about this. If and when we get back to normal things that we used to argue and be able to use appropriately as in law, to say, no, there's a presumption of regularity. No, the court shouldn't have to see this or the defense isn't entitled to see it. This is another example where my view is shifted because we've seen how the government can abuse that. And here it's like, you know what? If the government's not doing anything wrong, the government's position should be, look, we redacted for this reason, that reason and we are happy to show it to you. The court shouldn't have to order it. It's like, you know what, we're not doing anything wrong, but this is why we redacted it. And it's good for the government to know that it will have to, upon request, give it to the court. And it seems to me that if that's the way that we need to have the law evolve to have the government be accountable, so be it. And a good thing because it's really not that a big deal. So what? So the court will look at it and see that if you're right, you're right. And guess what? If you're wrong, you should have hell to pay if you're wrong. Because the court should be saying I can't believe you represented X when it's not X. So that's where we are, where the court's saying, I want to see it.
- [34:14]
Mary McCord
Show your work.
- [34:15]
Andrew Weissman
Yeah, exactly. Okay, final thing, Mary, on Jack Smith and I think this can be really quick even though it has huge ramifications is this is one where I am just going to tell everyone what it is that Jim Jordan is claiming is perjury. Jim Jordan is claiming that the following is perjury. That when Jack Smith at an eight hour deposition, which by the way Jack Smith wanted to make public and have public at the time but Jim Jordan and other Republicans refused but later made public, he was asked did you seek by a search warrant from members of Congress the content of and essentially becomes text messages or emails Jack Smith says from members of Congress like which should by the way be a tip off that he's like focusing on the language and he's yes from members of Congress and Jack says no, that is what Jim Jordan refers saying that is perjury.
- [35:15]
Mary McCord
A false statement. Yes.
- [35:17]
Andrew Weissman
And let me just make it clear, that is a 100% accurate statement and everyone agrees with it. Even Jim Jordan in his letter does not say that Jack Smith issued a search warrant for the content of text messages or emails from members of Congress yet that is the statement that they say is false. And they say well he should have told us that he got content of text messages or emails from other parties through other means. But he wasn't asked that. He wasn't asked. By the way, did you get from the National Archives by search warrant or
- [35:55]
Mary McCord
subpoena or request or any other means. Did you get content? And if then he had said no, then maybe that would have been a false statement because the record shows that nara, that's the National Archives and Records Administration, shows that he got 54 spreadsheets containing custodians text messages from White House phones. But that was not the question. The question was did you ever get any? The question was did you issue a search warrant for members text messages? And no, he did not.
- [36:23]
Andrew Weissman
This is the way I look at it. If you're asking me what is more false and misleading, Jack's testimony or Jordan's letter about it. Jordan's letter is at best misleading. But just to be clear, you can read the letter for yourself. You can also read the lawyers for Jack Smith responded immediately to point out what we are saying. This isn't where it's like, oh, it depends what the intent is, or there's an ambiguous word and you might be able to argue it one way or the other. This is one in black and white. There is no perjury. And that's when for people who listen to us, Mary and I, when there's an open issue, we try to flag it or we say the reporting is or it appears or we don't know everything the Department of Justice has. But our assessment of what's in the indictment is X. No such hedging language is needed, required or actually appropriate in this situation because you can read the actual allegation, you can read the actual language that Jack Smith gives and it's absolutely irresponsible, clearly politically motivated to have done this. And it tells you where at least Representative Jordan is on this politicizing weaponization spectrum because it is just so irresponsible to have issued this letter in my, I won't say humble opinion because I know a lot of my friends would take issue with the word humble, but in my opinion, it's just so irresponsible.
- [38:05]
Mary McCord
Agree. Okay, should we take, should we take a break? We said we were going to be quick and we are being quick on these things. These are all things to continue to watch. And I shouldn't even be so light about it because these are all, everything we're here talking about are almost everything today are forms of harassment, forms of intimidation, forms of coercion to get people to either retaliate against people for things they've done in the past or to chill people from things they have a constitutional right to do, like speech in the future. And the fact that we can even be light about it shows the weird normalization of this type of behavior by the government that we are able to almost make fun of it, but it really is not funny.
- [38:47]
Andrew Weissman
Absolutely. Let's take a break and come back and we'll talk about some immigration matters.
- [38:52]
Mary McCord
Sounds good.
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- [39:49]
Andrew Weissman
Welcome back, Mary. Let's go up to Minnesota. There is a new decision there rejecting something that the Department of Justice was doing saying that the policies of so called sanctuary cities in this case Minneapolis is illegal and that they are not sufficiently subservient to the federal government that it is interfering with exclusive supreme power that the federal authorities supersede that of the states and thus they are not allowed to resist in any way and should be cooperating with the federal government. What was the claims and what did the judge do here? It's an important case. As you mentioned earlier. It is is one we have seen before, but particularly because it is happening in Minnesota. I found it really resonant.
- [40:44]
Mary McCord
Yes. And to set the stage here, this government from the time this administration came into office just decided they were going to go after so called sanctuary cities and sanctuary states. And we've talked in the past about a lot of states and a lot of local jurisdictions within states have policies of not engaging in voluntary cooperation with federal immigration enforcement. They will do what they are required by law to do. But the law mostly is a voluntary scheme because under the 10th amendment the federal government cannot commandeer and this becomes very relevant to the Minnesota judge's decision. The federal government cannot commandeer a state or a local jurisdiction or to enforce a federal regulatory scheme. Federal immigration law, Supreme Court has been crystal clear is a federal regulatory scheme. It's the feds who are in charge of immigration enforcement. So there are things that the feds can ask for the states to do, provide certain information. They can ask states to hold people even after a state has no authority to hold somebody, like, say they're on a brief pretrial detention, they got arrested for something and oh, maybe the case is being dismissed and they're going to let the person go. They can ask the local officials to hold that person for up to 48 hours so that they can come and pick them up if they think that the person is here unlawfully. But they do it without a judicial warrant, they do it without probable cause of a crime. And so a whole lot of these states and local jurisdictions are saying, no, we're not going to do that. We're not going to hold people in violation of their fourth amendment rights just because you want to deport them. So states have enacted and cities, and this involves everything. This involves Minnesota, involves St. Paul, it involves Minneapolis, it involves Hennepin county. All had different policies of saying, we're not going to voluntarily cooperate. And this is one of at least 13 and maybe more cases that the department of justice has brought affirmatively saying under the supremacy clause, the whole federal immigration enforcement statutory scheme presumes that there will be cooperation by states and locals. It doesn't work without that cooperation. Therefore, under the supremacy clause, the state and local policies are preempted. That's the constitutional term preempted by federal law. And you've got to provide the information that we claim you need to provide. You've got to honor detainer requests to hold people even beyond when they should be held. And full disclosure here, my day job, iCap. We represent a state that's being sued by DOJ. We represent a sheriff that's being sued by DOJ. This is an issue very near and dear to our hearts. But the government has been losing all of these cases. And that's because courts are saying there's nothing express in immigration law that preempts these state or local policies. There's nothing expressly that says this is what you must do. And there's nothing even that creates an obstacle to federal immigration enforcement. Just because you don't have the assistance of a state and local to make it easier for you is different from being an obstacle. And, and if we were to abide your arguments, Department of Justice, different courts have said, including this court in Minnesota, that would violate the anti commandeering principle of the 10th Amendment because you would then be forcing states and local jurisdictions to enforce a federal regulatory scheme.
- [44:10]
Andrew Weissman
And one of the things that the states and the so called sanctuary cities do with good legal advice is they're separating out what they're not going to do on a voluntary basis from obstructing what the federal government's doing. So they're saying, we're not going to obstruct you. That they cannot do. Just be clear. So they would not be entitled to say, oh, you want to come in, but we are going to bar you from enforcing a warrant, for instance. So that's the distinction. We're not going to obstruct you, but we're not going to help you.
- [44:49]
Mary McCord
That's right.
- [44:50]
Andrew Weissman
And so that's the line. I mean, that is what the judge says. He goes through a lot of standing issues. He goes through a lot of more technical issues because there are a lot of different claims here. But when he ultimately comes to the merits. It's exactly what you said, Mary, which is these are sovereign entities, the states are sovereign, Minnesota is sovereign. And they are not there to be an amanuensis of the federal government. No one's objecting and no one's saying legally the federal government is not entitled to do what it's doing. That's for separate lawsuits. This is for states and cities saying, you are trying to say we're required to help you. That's right. And this is the judge saying, no, they're not. You have to act on your own. They are not required to help you. They cannot obstruct you. Which by the way, there's no allegation here that they were doing that.
- [45:44]
Mary McCord
Well, I should say the government does argue in many of these cases that in fact it is obstruction, but it's not obstruction in the sense that you've been describing.
- [45:53]
Andrew Weissman
Yes, there's no allegation that they have a legitimate claim that this is obstruction is a better way to put it.
- [45:58]
Mary McCord
Yes.
- [45:58]
Andrew Weissman
And so this was rejected. As you said, it is one of many cases and I think this is uniform with respect to the states and cities who have done this correctly. In other words, where they are saying we're not doing things voluntarily. I don't think there is a decision out there that says that you can't do this.
- [46:16]
Mary McCord
Not from this last year and a half. Back in the first Trump administration, the government did this a slightly different way. What they did is the Department of Justice said we are now going to condition different law enforcement grants on you certifying compliance with certain immigration provisions. And a number of states said no, because Congress, when it established these grant programs, did not put that type of A certification requirement into things. And so we don't have to do these various things that you say we're having to do. There was one case, the Second Circuit, that came out in favor of the government in terms of these conditions on grants. And that case, frankly, was a circuit split with other circuits and probably would have been headed to the Supreme Court. But then Trump lost the election, the problem went away, and it stands there. But it was not a decision on the merits of, of these type of issues that we're talking about here, which is voluntary. What the immigration statutes set up is voluntary cooperation. And that decision to not engage in voluntary cooperation can't be preempted by the federal immigration laws.
- [47:26]
Andrew Weissman
So the other immigration decision that was a sort of big loss to immigration advocates is out of the Second Circuit and it is a reputable panel of three. And it is with respect to an individual, Madawi M A H D A W I and we have talked about this issue in the past where the main issue is a little dry. The issue is whether we're leaving the decision and related decisions in an immigration context to be decided by the so called political branches, the executive and the legislature, that we're limiting judicial review. There can be judicial review after a final order and in a certain context. But here the individual who wanted to challenge this based on primarily the First Amendment, saying that you are doing this to me because of what I have said about the conflict between Israel and Gaza, and you were doing it based on my First Amendment speech and that is improper. So he wanted to raise a First Amendment claim and said, and you have detained me for that reason. And the issue is whether Congress meant for that claim to be heard now such that Mr. Madawi and people in his position could be heard right then and there and be released if they're right, or whether they kind of have to stay in jail and wait, which could be a considerable amount of time. And whether Congress intended that this all
- [49:14]
Mary McCord
happened back at the beginning of the administration we talked so much and remember Oz, Turk, Mahmoud Khalil, multiple people being picked up, and that's just a few names picked up off of college campuses because of their advocacy. Some of them, like Mr. Madawi, a lawful permanent resident, detained immediately under this brand new use of a statute that I don't think we've ever seen before, where the Secretary of State can just determine that these people threaten American foreign policy and therefore are removable under the Immigration and Nationalization act, then detaining them
- [49:49]
Andrew Weissman
even though they're here legally. At the time, yes. Just to be clear, this is somebody who everyone agrees is here legally at the time, not yet a citizen is going through that process, but is here legally. So Secretary of State Rubio issues this statement that Mary is talking about, and suddenly that's supposed to be the predicate for removing the person. Maybe yes, maybe no, but detaining him in the interim.
- [50:15]
Mary McCord
And that's why this all came to a head. And there were so many cases filed under habeas, habeas corpus, that provision of really the Constitution that says if you're being detained unlawfully, you can get. Get court relief. And so multiple courts did say, yes, this looks like it's in violation of First Amendment, this determination by the Secretary of State that somebody is a threat based on them engaging in protected speech. We're going to order the release. So that is what the government appealed, not only in this case, but also in the Khalil case. In the Khalil case, the Third Circuit came out very much like the Second Circuit here and said the statute where Congress said you don't get to review the constitutional or statutory basis of your removal until after you've been given a final order of removal and then you can appeal it. Both courts says that even applies to this decision to keep you detained. Because your argument, they said about both Khalil and Madawi is still that you're being detained based on something unconstitutional, your exercise of First Amendment rights. Therefore, that arises from the same thing. And under the statute that Congress enacted, it actually says no court shall have jurisdiction by habeas corpus to review any order or questions of law or fact. And they say that means you gotta wait. And that's why it's such a big deal, because never before had people been detained on grounds like that. And we're talking about months and months and months. Remember Ozturk, how long it was that she was detained before finally she was reversed? And now it's saying, sorry, you're stuck there.
- [51:49]
Andrew Weissman
So this is my big picture take is I think that there's lots of blame to go around, obviously, for the administration and Secretary Rubio in terms of invoking the law in this novel way. I'm not weighing in on the facts, whether there's a basis to detain or not. Actually, there's some ugly facts that are alleged in this opinion. And so as Judge Wilkinson said in Abrego Garcia, which is that may be true, that may not be true, that doesn't in any way change the due process concern in a rule of law country so the first set of blame, in my view, is the administration and the manner in which they're doing this. The second is Congress. The idea that I think the judges here that have reached different conclusions, you can reach these decisions, in my view, in good faith. I'm more inclined to the people who said that the courts should hear it now. But I can't look at, let's say, Judge Livingston, who is one of the 2nd Circuit judges who I think is terrific, and say, oh, she's acting in bad faith or a political way. I think she looked at a statute that is very broad by Congress. And that's where the second part is, that Congress can fix this any day of the week and say, no, we did not mean to include the detention decision, that yes, there's a final appeal of the conclusion of what happens in the immigration process, but the issue of detaining somebody is so fundamental, that is something that you're allowed to go to court and they could clarify the law any day of the week to do this. I have issues with judges all the time and whether I agree or disagree. But this is one where the statute is broad.
- [53:33]
Mary McCord
It is. It's written in a way that their interpretation is not crazy at all.
- [53:37]
Andrew Weissman
It's not. Now, Mary and I could go dissect this, and I was today thinking about ways that I would attack the decision and what I thought was not as good as others, but it was not so weak that I'd be like, how could they possibly have done this? And so that's why I really think, if we ever get back to normal, this is one where these people, I don't care how heinous you think they are, there is a way to say, fine, if they're really heinous, then the government is going to be able to present that in court and show why they should not be detained. But you should have to go to court. It's not a question of I unilaterally get to pick people up.
- [54:13]
Mary McCord
It's just due process.
- [54:14]
Simone Sanders Townsend
Right?
- [54:14]
Mary McCord
It's judicial review. And due process usually means you've got. That's some method to challenge your detention. And habeas was about that. That's why it's a crazy statute. And crazy that they also barred habeas review until the end. But again, I don't think that Congress, when it enacted that particular law, had any foresight that the Secretary of State would start designating students on college campuses as threats to the national security based on their free speech and then detaining them. So that's the bad here.
- [54:44]
Andrew Weissman
Amen. Yeah, well Mary, it's been, I can't say an enjoyable conversation, but it's been an edifying one and a gratifying one. Thanks everybody for listening. We really appreciate that all of you are hanging in there and staying engaged. Mary and I really mean it. It means so much to us that people want to have this kind of discussion and know these details, and it gives us great satisfaction to know that you're out there and listening. So remember, you could Also subscribe to MSNow Premium on Apple Podcasts and you can get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content. And remember, we are also available on on YouTube. You can head to Ms. Now. Main justice to Listen this podcast is
- [55:43]
Mary McCord
produced by Max Jacobs with additional support by Donnie Holloway, Nicholas Vinuela Yodar is our Associate producer and Cassidy Corey is our intern. The audio engineers for this episode are Bob Mallory and Hazik bin Ahmad Fared. Katie Lau is the Senior Manager of audiopress production and Aisha Turner is the executive producer for MSNow Audio.
- [56:05]
Andrew Weissman
Search for Made justice wherever you get your podcasts and follow the series.
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Jacob Soboroff
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