← Main Justice
Main Justice
Callous and Lawless
00:57:36
Sensitive victim information mistakenly exposed by DOJ in Epstein files release. Plus: Legal updates in Minnesota and AUSA recruiting on X.
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- [00:00]
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Mary McCord
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Andrew Weissman
One most trusted app based on August 2025 proprietary survey. Over 500,000 new listings every month based on average new for sale and rental listings. July 2024 to June 2025 foreign. Welcome back to Main Justice. It is Tuesday morning, February 3rd. I'm Andrew Weissman and as always, I am here with my co host, Mary McCord because for the last almost three years. Almost three years, Mary Be and me every week.
- [01:21]
Mary McCord
That's right.
- [01:22]
Andrew Weissman
And you know what I would say is sometimes twice a week, sometimes some specials.
- [01:26]
Mary McCord
Yes.
- [01:27]
Andrew Weissman
But we have never missed a recording. I think it's because we feel really, really responsible and we just make the time.
- [01:35]
Mary McCord
Yep. You gotta keep up anyway, so you might as well be doing the podcast to help you keep up.
- [01:40]
Andrew Weissman
So it's true, and as I've said, hopefully this translates to the audience is that it is useful to take time to synthesize and reflect and think about themes in processing what happened. Yeah, one of the questions I would get early on was how are you so calm on air? And I always was like, oh, you should see me when I'm first reading this stuff.
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Mary McCord
I know.
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Andrew Weissman
You know, this is like after I have to sit down and calm down and figure out how to process it. And it's so helpful to do this, but hopefully people appreciate it.
- [02:14]
Mary McCord
So, you know, you mentioned compartmentalizing things and putting them into an organized fashion. That's kind of a good lead in to what we're going to talk about today. Because the first compartment the first segment that we're going to talk about is the Department of Justice. This is a podcast called Main Justice. And I think both of us and many other DOJ veterans and probably current DOJ lawyers, jaws dropped to the ground on the weekend when we saw a posting for, you know, recruiting DOJ lawyers to go to U.S. attorney's offices, basically to support President Trump's agenda as opposed to, like, fight for the cause of justice, support victims, do counterterrorism, those kind of things. We'll talk about that.
- [02:56]
Andrew Weissman
And by the way, Mary, that posting is not like on the DOJ website.
- [03:00]
Mary McCord
No, it's on social media.
- [03:01]
Andrew Weissman
It's on social media and of course it's on X. That's where the posting is.
- [03:07]
Mary McCord
That's right. So that leads directly into the rejection of a DOJ complaint against a district court judge here in D.C. who we all know very well and have discussed on this podcast for frequently. That's Judge James Boasberg, which also then leads us into a real, let's just say, screw up by the department when it comes to the release of the 3 million additional documents of the Epstein files that apparently are just completely filled with victim names and personal information and even photographs. And this is after the department took an extra month to supposedly redact this stuff. So complete screw up by the department. Then we will move in segment two to Minnesota, where we have to spend some time every week, unfortunately, with an update on some of the legal cases there and really a follow on to things that we've already discussed, but very, very important, and move into also a discussion of the arrests, not just of activists, for allegedly disturbing and obstructing a church service, but two journalists who were there to cover this protest at a church. And that is really kind of crossing a big line when it comes to prosecuting journalists for doing journalism. And if we have time, we will hit at least briefly on the search of the Fulton county election office and the seizure of records related to the 2020 election. Yes, you heard that right. It is now 2026. But the president still wants to show that there was voter fraud in 2020. And this will be the topic. Elections and what is happening. Execution of this search warrant and looking forward to the midterms is something we want to spend a full premium episode digging into that subject because it's so important this year. But we will still hit on it today.
- [04:53]
Andrew Weissman
Frankly, the most important, yes, it is about free and fair elections. Having said that, Mary, why don't we start? You said we were going to talk about the Posting, I can just read it because it's really short and then people will know what we're talking about. So this, as I said, it's on X. It was posted on Jan 31, 2:06pm as of now, there are 4.1 million views and it is from Chad Mizell. And Chad Mizell was the Chief of Staff to the Attorney General and he also was the acting General Counsel of dhs. So he was a former government official. By the way, Mary, when we turn to the complaint that was dismissed against Judge Boasberg, that complaint was filed by, wait for it, Chad Mizell.
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Mary McCord
Yes. And it was filed on behalf of the Department of Justice.
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Andrew Weissman
Exactly. And at a time that Chad Mizell was actually the Chief of Staff to the Attorney General.
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Mary McCord
Yes.
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Andrew Weissman
Let me just not bury the lead. I'm going to read out what he said so we can talk about it. If you are a lawyer, are interested in being in a usa so far, that's fine. Here's the kicker. And support President Trump and anti crime agenda. The anti crime agenda, that's fine too. DM me. We need good prosecutors and DOJ is hiring across the country. Now is your chance to join the mission and do good for our country. So the part of this, as Mary, you said, was jaws clattering to the ground, is the idea that it's not even the quiet part out loud. It's just all out loud. There's no veneer, there's no sense that we're going to be impartial. There's no sense of separation from the White House. This is, you have to support President Trump. You know what I immediately thought of, you know, the allegations from the senior, senior FBI officials who have sued the FBI and the department for being wrongfully terminated. They said that when they were being considered to be in those senior positions, the questions they were asked by DOJ people, the vetting process was, who did you vote for? Who won the election essentially? And they were like, what are you talking about? We don't answer those questions no matter what quote side we're on. We're on the side of enforcing the law impartially. And this is just shocking that it's like, oh, you can apply, but only if you're a supporter of President Trump. That is the world we're in.
- [07:36]
Mary McCord
And, you know, I'll note that Stephen Miller, among others, reposted this. If you want to combat fraud, crime and illegal immigration, reach out. Patriots needed. I'm not sure about the patriots needed. And then he reposts the chad Mazel social media post. So part of it is that's not the right way to advertise this. But part of it also, honestly for me, and I imagine for you too, in all of my years at the Department, we never had to do anything like this to get high quality applications for Assistant United States Attorney positions, as well as when I was at Main justice, for attorneys within the National Security Division. So many people, and we're talking about people with great experience, great law school credentials, fantastic clerships, just the top of the top of their class whose dream was to be a federal prosecutor or an attorney for the Department of Justice. And I can remember, you know, having recommendations come to me when we would have an opening and looking through a stack that had already been screened probably three times and still seeing these great applications and having to say, well, I can't even interview that person because there's three more that are so high quality. And to think that you have to go out and essentially crowdsource to get people to apply is just dumbfounding to me. And it shows how much turmoil is in the department. And I can tell you also as a law professor, and I assume you're experiencing this too, I have students every day who went to law school in the hopes and dreams of going into the Department of Justice. They're now not sure what to do. Some of them had internships planned for summers and aren't sure what to do because many of them just don't feel like that's a place that they can go. Now, we've both said in the past there are good attorneys still in the Department of Justice, of course, many, many, many of them, and good for them that they can stick in there and keep doing their jobs. But when people get asked to do something that they feel is unethical or in violation of the rules of professional responsibility or illegal. Or illegal. Which would also be unethical.
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Andrew Weissman
Yes. There's a Venn diagram of overlaps there.
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Mary McCord
Then those attorneys have to take a position. And that's oftentimes when we've seen people leaving who were really trying to stick around. So the fact that they have to resort to this, I guess I shouldn't say have to. I'm not sure what precipitated this, but we do know that many, many have left and we see a lot leaving from Assistant U.S. attorney's offices. My former office in D.C. minnesota is just bleeding. I think they're down to half or fewer of their normal staffing. So it's a pretty staggering thing to See, and really sad.
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Andrew Weissman
And I want to just foot stomp something to make sure people understand that obviously attorneys may have policy differences. And when you talked about law students may not want to join a certain administration, obviously sometimes law students and other people, other lawyers don't want to join administration because they're like, I just don't agree with their policies and something. But that's not generally the issue because look, we've worked for Republican and Democratic administrations for years and there's those transitions. And you know what? Frankly, they're going to be policies in various administrations, whether Democrat or Republican, where you disagree with. But invariably you're not dealing with the unlawful or the unethical and you're dealing with legitimate policy differences. And so you don't see people being fired for no reason. You don't see people being fired for having worked on cases that are disfavored by the President. You don't see people mass leaving in protests because they can't stomach the orders because they either are illegal or immoral. For instance, what we heard with respect to people leaving because reportedly they were not going to investigate Renee Goode and her widow as the investigation as opposed to the agent. I mean, they talk about ass backwards. And so that's sort of world one and we're in world two. And I just want to again, footstep something which is, you never had an issue where you were thinking, how are we going to find good people? It was a question of feeling like, how could we not interview these people because they're so good. But you had the cream of the limited capacity.
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Mary McCord
That's right. Yeah.
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Andrew Weissman
Right.
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Mary McCord
So that leads directly to. This is the posting by Chad Mizell. And that leads us to, as we indicated at the top, Chad Mizell's complaint complaining about the conduct of a federal district court judge. He filed this complaint when he still was the chief of staff to the attorney General. And he filed it on behalf of the Department of Justice against James Boasberg, a U.S. district Court judge here in D.C. this is the judge who had handled the Trend Aragua case the very first weekend when the administration flew two planeloads of alleged members of Trend Aragua to a Salvadoran detention center allegedly under the auspices or authority of the Alien Enemies act, and did that even while Judge Boasberg was having a hearing saying, no planes should be departing here and if any are in the air, turn them around. And this complaint was made about something that Judge Boasberg was alleged to have said during a conference of the Judicial conference of the United States. Now, this is a policymaking body of the federal Judiciary. It's got 27 members, all Article 3 judges, meaning appointed by the President. Senate confirmed, lifetime tenured judges from different geographic areas around the country. Then they talk about issues that have to do with the administration of the federal courts and also things of concern. And the complaint focused on a statement that Judge Boasberg allegedly made during the Judicial Conference last March. And this is from a 6th Circuit chief judge decision dismissing the complaint. And actually, just a little aside, the way this got to that chief judge is the complaint comes in to the D.C. circuit. The D.C. circuit judges say, we have to recuse ourselves. We work with Judge Boasberg all the time. We're in the same courthouse with Judge Boasberg. So the Chief of the D.C. circuit asked the Chief Justice, John Roberts of the Supreme Court, to please send this complaint someplace else, basically, to have an independent, neutral, detached, you know, review. That's how it got to the Sixth Circuit. And it was the chief judge of the Sixth Circuit, Judge Sutton, who dismissed the complaint. But here's how he described it. According to the complaint, the judge, who is a member of the Judicial Conference, expressed, quote, concerns, unquote, to other members of the Congress, quote, that the administration would disregard rulings of federal courts leading to a constitutional crisis, unquote. And then what the complaint did is it tried to tie that statement into subsequent rulings that Judge Boasberg made in the Trende Aragua matter, including finding probable cause that members of the administration were in contempt of his orders. So as Judge Sutton describes the complaint, this is how Chad Muzzel packaged this combination of this single statement to the Judicial Conference and his rulings thereafter. He says that Judge Boasberg disregarded the history, tradition, and purpose of the Judicial Conference semiannual meetings. This is a quote to push a wholly unsolicited discussion about concerns that the administration would disregard rulings of federal courts leading to a constitutional crisis. By singling out a sitting president who was and remains a party to dozens of active cases, Judge Boasberg attempted to transform a routine housekeeping agenda into a forum to persuade the Chief justice and other federal judges of his preconceived belief that the Trump administration would violate court orders. This is what they were accusing Judge Boasberg of doing. They said, oh, we have a source of evidence, and it's attachment A, and then didn't attach attachment A and still have never attached attachment A.
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Andrew Weissman
So this is one where I think it's useful for people to understand how judges work because this is such a dispassionate, well reasoned decision that goes through chapter and verse. Why this is wrong for 17 reasons. But it starts with this idea that because you kept on saying this is what he allegedly said. Yeah. So the judge starts by saying, okay, this is what he allegedly said. You say it's in attachment A. There is no attachment A. So the court went back to the government and said, please, if you'd like us to consider attachment A, you need to give us attachment A. And they don't.
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Mary McCord
I know, crazy incompetent.
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Andrew Weissman
So the judge says, so this hasn't been proved whether it's. You can't just make an allegation that somebody said something, cite to something that doesn't exist. And then when the judge says, okay, let me see it if you want us to consider it and you say, well, I don't have it, then it's like case over.
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Mary McCord
Yes. But he does say, even if. Yeah, go there.
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Andrew Weissman
The judge then says, let's just assume it did happen. And he then reasons up one side and down the other. Why that doesn't make any sense. Including that there was no case pending at the time that the statement was allegedly made. And I'm just going to add my two cents, Mary. Let's just have a little realpolitik here. Yeah. Do you know how many judges are now on record concerned about the rule of law? We've talked about the presumption of irregularity. We're going to talk about in Minnesota, the chief judge, they are talking about a hundred times that he documents that ISIS.
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Mary McCord
96. Just to be clear. 96.
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Andrew Weissman
Oh, you're right. I'm engaging in hyperbole.
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Mary McCord
Yes.
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Andrew Weissman
Right, you're right. It's just 96 times that the judge is talking about the government ignoring immigration orders. That's just immigration orders. Right. So this is rampant. The idea that even if Judge Brosberg said that, that he would be. I'm not even sure.
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Mary McCord
Engaged in any type of misconduct.
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Andrew Weissman
Right, exactly. I'm not even sure that's prescient because it was going on at the time. He saw it himself when he was overseeing that case. And frankly, I think that's why Justice Kavanaugh had to issue a footnote clarifying what he had said because he saw what ICE was doing and saying that its interpretation of the fourth Amendment allegedly based on a Judge Kavanaugh concurrence was misconstruing it. I mean, this is a rampant problem. So the idea that this is misconduct put it in the same bucket as prosecuting Don Lemon. It is a brushback pitch to those who are voicing concern. You voice a concern. We're filing complaint against you. You voice a concern. You document something, we're going to indict you. You videotape on your phone something. ICE is going to seize your phone in violation of the First Amendment, assuming you're filming in a completely lawful manner, which nine times out of 10, that's exactly what we're seeing. To me, it's all part of that piece.
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Mary McCord
Yes. You know, it's a theme almost of every episode.
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Andrew Weissman
Exactly. And unfortunately it's a theme of every day of Trump 2.0. Mary, should we take a quick break and come back and we wanted to talk about what's going on with this huge release of about 3 million pages, the latest data dump and give our sort of quick takes on what's going on there and then move on to other topics that you flagged for us.
- [18:51]
Mary McCord
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- [19:31]
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- [20:17]
Andrew Weissman
Okay. Welcome back. So there was a release on Friday and There was about 3 million documents related to the Epstein files. And I think there's sort of two pieces, Mary, to talk about because my take, I'm going to give you my big take and then sort of give you some data is that I think this is a combination of callousness and lawlessness. And callousness part may overlap with your comment that it's just a real screw up and sloppy. But I'm not willing to totally go with it's just a mistake as opposed to so callous because I could think of reckless.
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Mary McCord
Reckless is a good term.
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Andrew Weissman
Yeah. And I could think of a reason that some of this Might be. I'm not saying it is, but some of it might be somewhat intentional. And it has the effect of saying to people who are victims who have spoken out against the administration, we have a lot of power and we can ruin your lives. What has happened. And again, I'm not saying every single one of these is intentional. I'm just saying I'm not willing, because of the history of this department to think it's just a mistake. What happened, just so people know. What Mary and I are reacting to, is after the documents came out, scores of victims realized that their images, their names, their personal identifying information, such as their emails, their banking information, all sorts of data, was public on this website, and you could search for it and it wasn't being taken down. And a letter was submitted to the two judges overseeing parts of this matter in the Southern District of New York. Before I turn over to Mary, I'm just going to read a quick thing that they say. Because of the volume of mistakes or errors or intentional errors that were made, they say there is no conceivable degree of institutional incompetence sufficient to explain the scale of consistency and persistence of the failures that occurred. This court is the last line of defense for victims who were promised protection and instead were exposed. And then they give example after example after example of even after the victims went to DOJ and said, you need to take this down. Here's 20 instances of my name appearing. They took down three.
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Mary McCord
Listen to this. Here's Jane Doe. Four here, many newspapers and websites are publishing everything about us, including pictures. And I'm getting disgusting private messages and a flood of followers on social accounts. You've got others saying, I've never come forward. I'm now being harassed by the media and others. This is devastating to my life. Please pull my name down immediately, as every minute that these documents with my names are up, it causes more harm to me. Please, I'm begging you to delete my name. Now, people may be saying, didn't survivors want these documents exposed? Some did. But there were hundreds of victims and survivors of Jeffrey Epstein's abuse. In fact, this letter says that in 48 hours, the first 48 hours after the Friday release. And this letter is from attorneys for a number of these survivors. The attorney had reported thousands of redaction failures on behalf of nearly 100 individual survivors whose lives had been turned upside down by DOJ's latest release. So, yes, there was a small group who had had their name public who did very much support the release of the files and maybe Even a larger group of anonymous victims who also wanted it, but they didn't want it with their names and their personal identifying information to be exposed. And there's plenty who really this is devastating for. So it's interesting too that you say they submitted this letter to the judges sort of nominally overseeing. I actually think they're probably going to need to file a separate lawsuit because what they want to do with this letter is get an injunction, taking down that whole website until this can be figured out. But they're filing these letters in the original criminal cases against Epstein and Ghislaine Maxwell, and those cases are over now. Granted, those judges in those cases had to agree to the release of grand jury information from this case, which is just a subset. Which is just a subset. And they had to rule on that. And they ruled because of the statute that was passed by Congress mandating release, that they could then release it. But it's not really the right place to go make this complaint. I understand why they did that quickly. And the judge is going to talk to him tomorrow. He said, I'll have a hearing. I'm not sure how much I can help, but let's come talk about it.
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Andrew Weissman
So I just want to make sure people understand the reality here. By all accounts, these are people who suffered enormous abuse and now they're being re victimized. And what I don't understand is the Department of Justice already blew through the congressional deadline, right? So it's not like they're sitting there going, we care so much about deadlines because they already blew through that and they decided to release when? They just decided to release like there was no date that they were working against because they'd already blown that. How hard is it to look for images of naked women and make sure those are not released? According to this letter from the victims, these names were provided in December. They had a complete list of these names. They had the names. That is not hard to do that double check. And how do you say, as the Department has said, that this was our first priority, was protecting the victims. That just isn't true. I mean, and I understand that you could have a screw up. You could have. I mean, when you're talking about this volume, it's possible to have some mistakes. Absolutely. Nobody is perfect. But the point of this letter is this is too many, too much. And that's where it comes off. It is both lawless because they were required to have done this a long time ago. I'm going to return to lawless in a moment, but it's callous because the idea that, like Mary, this, I just keep on always thinking about, what would you do? I think that's a really good lesson for everyone listening to this. When you're thinking about this administration, it's really good to think about what would Mary McCord do? Mary McCord would be all over this before anything went out.
- [27:01]
Mary McCord
Any competent DOJ lawyer, really.
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Andrew Weissman
It's true. And you're sort of the platonic ideal of that would be going through this, saying, I need to make sure these women have been through so much. We are not going to be the people who make this worse. One other thing about why this is lawless, it's not just the timing. Todd Blanche said out loud in his press conference, I listened to the entire thing. He said out loud that they're asserting deliberative process privilege that is not in the statute. So one thing he did not say is he did not say that every single document about Donald Trump, every single image involving Donald Trump has been turned over.
- [27:42]
Mary McCord
Yeah.
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Andrew Weissman
That would be the first thing you would do if you were innocent and there was nothing to hide. Would be the very first thing you do is say, get that all out there and make sure everybody knows that whatever claims we're making, it's not about redacting anything about me. That did not happen. And instead, they used a lot of fuzzy language about what they were disclosing and what they were not disclosing. So there is going to be further litigation because they announced that they are not in compliance with the congressional statute.
- [28:12]
Mary McCord
Yeah. I mean, the attorney general wrote a responsive letter to the court responding to the request from the attorneys for the victims. And, you know, I read it. It's like four pages of repetitiveness of technological problems and human error, and we're doing better. And I'm like, didn't you just say that in the previous paragraph? So it'll be interesting to see what Judge Berman says yesterday about whether there's anything he thinks he can do or whether they need to exact a new lawsuit. Shall we move to Minnesota?
- [28:42]
Andrew Weissman
Yes. So we did give a preview. And I'm going to say something. And Mary, I want to know if you think I'm being too critical. The chief judge, as we reported last week, had issued this order saying that the head of the agency needs to show up on Friday. But in the fourth paragraph, he says, but by the way, if you release this guy before then, then you don't need to show up. And he wanted the person to show up, the head of the agency, because.
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Mary McCord
He wanted to that's Todd Lyons.
- [29:10]
Andrew Weissman
Todd Lyons. And he wanted him to show up because he wanted to know why the court thought he was in violation of the order. And here is explanation. And of course they released the person so Todd Lyons doesn't have to show up. And the judge issues this opinion that got a lot of attention about what I said was the hundred and you correctly said no, Andrew, don't overstate it. It's 96. Which is why it's great doing this show with you because it's like precision. So it was a mere 96. And the judge lists that all out and is he attached an appendix.
- [29:41]
Mary McCord
Right. That identified 96 court orders that ICE had violated in 74 cases.
- [29:47]
Andrew Weissman
He Unlike Chad Mazel, attached the appendix.
- [29:49]
Mary McCord
Yes, that's right.
- [29:51]
Andrew Weissman
Right. So this is my issue. If the court thinks that Todd Lyons is violated his order releasing the person beforehand doesn't get rid of the violation. If there are 96 violations that the court notes, it is terrific that the court is calling it out. The district courts have been doing yeoman's work under terrible circumstances, being called out and threatened. And I really am not trying to make light of that and so appreciative of it. But at some point it has to be more. It can't just be saying it happened. You know where we saw that when Lindsey Halligan finally stepped off the stage in the Eastern District of Virginia. It's because two federal judges there said enough is enough. You know what's going to happen if a USA's the Assistant United States attorneys show up where they have put in filings where her name is purporting to be the sitting U.S. attorney, there's disciplinary action that can be taken. They can be referred to the bar. Another judge said if she continues referring to herself that way, it is a form of fraud. And you know what? That solved the issue. And I feel like the judges, I understand why they're not but it is not helpful to just call it out and there's no consequences. And so I do think there has to be more. I actually when I saw that order that said that Mr. Lyons has to show up but if you release him, you don't have to. I was thinking yes, it does put pressure to release the guy.
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Mary McCord
In one case.
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Andrew Weissman
Right, exactly. In one case. But it doesn't deal with the issue of the guy is of all the cases and the department ignoring an order and there needs to be consequences to that. And it's where again, Mary, I hate to personalize it, but let's just read This a you and I, if a judge said that about one case, you and I would be apoplectic.
- [31:48]
Mary McCord
It would be, let's review all of our cases.
- [31:50]
Andrew Weissman
Yeah, exactly.
- [31:51]
Mary McCord
And you know, it's interesting because you thought of that order for Todd Lyons to be there on Friday for a show cause hearing as the warning. Right. But now I's got another warning. The judge had said, if you do release and stipulate, I will drop that show cars hearing. So I felt like he had to do that. But then he's the one who brings up. Right. The 96 other court orders that ISIS violates. Says this list should give pause to anyone, no matter his or her political beliefs, who cares about the rule of law. And rather than say, so, I'm still going to have a show cause hearing about that. He says the court warns ICE that future non compliance with court orders may result in future show cause orders requiring the personal appearances of lions or other government officials. ICE is not a law unto itself. ICE has every right to challenge the orders of this court. But like any litigant, ICE must follow those orders unless and until they are overturned or vacated. Sounds very similar to things that Judge Boasberg said back when he felt that his orders had been ignored. He's like, you can appeal my order, but you can't just ignore my order. That's probable cause of contempt. So I think this was what I call this is the second warning. And then we'll see if ICE now complies with these orders or whether the chief judge there in Minnesota feels compelled to issue a further show cause ruling.
- [33:08]
Andrew Weissman
I mean, at some point it comes off as a paper tiger. And anybody who's a parent knows that. I mean, you can't sit there and say, if you do this anymore, this is what's going to happen. And then the kid does it and you're like, okay, but now if you do it again, you know, I have a dog. When I was training him, it's like, you know, you can't do it that way. It's probably a bad analogy. But anyway, this is like all sort of like human behavior.
- [33:32]
Mary McCord
Yeah.
- [33:32]
Andrew Weissman
Speaking of sort of violations of orders, you know, we spent last week, we were talking about how I has this interpretation that a whistleblower revealed that said that they should be able to go into homes in the United States just based on essentially an executive say. So in other words, within the executive branch, they didn't need to go to the judicial branch to get an order.
- [33:55]
Mary McCord
To get a warrant.
- [33:56]
Andrew Weissman
Exactly. To get an actual warrant based on probable cause. And you can see the sort of disrespect for the courts. And we talked about how the current general counsel had issued a op ed in the Wall Street Journal defending that position. Well, I would just call out that the series of I think it might have been every single general counsel and every single acting general counsel and every prior administration, Republican and Democratic issued a joint op ed in the New York Times and we can put it in our show notes responding to that, responding to it. And they had such good points. And I think there were just two quick points that I thought were wonder. One, they said it is not fair or right or proper or just to say about opinions that of all of us that we are just rogue Democrat operatives. And that is what the current general counsel was saying, which is the prior administrations were all doing this and this namby pamby approach because they're just these rogue Democrats as if they're like off the chart liberals, state actors. Right, Exactly. And so of course the people who are signing this are Republicans and Democrats and they served in all these administrations. Again, it's to our theme of these are people who just believe in the rule of law and we're served all sorts of administrations. So that was their first point, which is that it is so both factually wrong and a terrible thing for the way to behave as a lawyer to engage in that kind of process. And it's as you and I teach, it's a terrible way to teach students and lawyers who work for you as opposed to thinking that, okay, there may be a policy difference. Now turning to the law, they just say you got it wrong up one side and down the other. They said you are just absolutely wrong in two respects. One, the Supreme Court requires a judicial warrant from a different branch of government. And two, your comment that if you're not a citizen of this country, you don't enjoy the same Fourth Amendment rights. Let's just put it this way, so far, so even this Supreme Court of the United States has not said that.
- [36:14]
Mary McCord
Or really ever even suggested that.
- [36:16]
Andrew Weissman
Exactly. That is just not the rule here. The Fourth Amendment, which protects privacy and protects you against unreasonable searches and seizures, and that's the privacy interest that's protected is enjoyed by everybody in the country. Period. The end, Full stop. Regardless of who you are in this country, you can be a convicted prisoner, you can be and you still have certain rights. You can be a adjudicated felon, you can be undocumented, you can be a citizen, you can be on a green card if you are in this country, there are limits on what the government can do. And the way to think about that is, is the Fourth Amendment is a limit on what the government can do, period, regardless of who the person is. So you're limited.
- [37:05]
Mary McCord
I'd like the First Amendment, which we're going to come to after the break. But before we get to the break, I do want to talk for a minute about the judge's decision in the case brought by the state of Minnesota and the cities of St. Paul and Minneapolis, which we did discuss last week. Many of the things we're returning to, we discussed last week. This was a case where they were seeking to actually get an injunction to require ICE to end dhs, to end the surge in Minnesota, and making arguments under the 10th Amendment and the equal sovereignty principle of the Constitution that all the states are equal and so they shouldn't be treated differently by the administration. And the judge, I thought, issued a very careful decision on a difficult legal issue. You can tell when you read the opinion she is deeply, deeply troubled by what is happening in Minnesota. She talks about the violations of people's constitutional rights, the stops without probable cause, the excessive force that has been used, the impact this has had on law enforcement and law enforcement having to divert their resources to deal with 911 calls that are coming in about people who are being attacked and assaulted by DHS agents. She talks about the impact this has had on hospitals, people not going to get health care, on schools, people afraid to send their children to school, and how this is, you know, really been devastating. But on both of these legal issues, the 10th Amendment, she says the law right now, there's not a lot of law on what it means to essentially commandeer a state to have to enforce a federal regulatory scheme, in this case the immigration laws. And she just doesn't find that the state and the cities have shown enough at this preliminary stage that this is a violation of the 10th Amendment. She's saying, I'm not deciding it for ever. All but this would be a big ask for me to do an injunction like this, and the law is not clear enough to me that it applies here. And she says the same thing with respect to the equal sovereignty between states. You know, argument was made, we're being treated differently for political purposes, Minnesota, than other states that might have more undocumented immigrants. And that is a violation of the equal sovereignty between the states. And she says the only case really out there is the Shelby county case, which is about the Voting Rights act, and there's nothing that really helps her to think that this would be applicable in this context. But I think part of this is also driven by the extraordinary relief, because she then says at the end, you know, it would also be difficult.
- [39:39]
Andrew Weissman
Let me just say, when you say extraordinary relief, the extraordinary relief that is requested by the plaintiffs by, in other words, the relief that Minnesota was asking for.
- [39:47]
Mary McCord
That's right. And she says, even if I could conclude. Right. That the plaintiffs were likely to succeed on the merits and that the balance of harms weighed more clearly in favor of the plaintiffs, the court would still likely be unable to grant the relief requested, an injunction suspending Operation Metro Surge. And then she reflects on the 8th Circuit opinion in the Tincher case, the case brought by protesters. That was also her case where she had issued a narrower injunction and the 8th Circuit stayed it. She then says in this opinion, the 8th Circuit Court of Appeals recently vacated a much more circumscribed injunction which limited one aspect of the ongoing operation, namely the way immigration officers interacted with protesters and observers. And she says the injunction in that case was not only much more narrow than the one proposed here, but it was based on more settled precedent than that which underlines the claims of now before the court. So she's concerned that even if she thought that the law was more clear on this, she's concerned about the relief requested.
- [40:49]
Andrew Weissman
Yeah. And she'd get reversed.
- [40:51]
Mary McCord
Exactly.
- [40:51]
Andrew Weissman
I think there's sort of two things that I think are sort of useful for people to take from this sort of big picture. One, this is the rule of law in action, where the judge may have her own personal views and may be horrified by a lot of what she's seeing and that she's describing. But she is saying, but I have to apply the law here and I have to apply the current law here. And so that is what it means to be a rule of law country. It's not just like, I feel for you and then I'm going to rule in your favor. So that's really what you were seeing in action.
- [41:26]
Mary McCord
And just to put stump that for a minute, this administration, every time they get a ruling against them, they say it's all just because of radical leftist activist judges. Right.
- [41:35]
Andrew Weissman
Even when it's judges that Donald Trump is appointed.
- [41:38]
Mary McCord
Exactly. And I think this is a good example of. No, when judges are ruling against them, it's because in their honest judgment, the law is in favor of the other side. And the facts support applying that law in a way to the other side. And here, this judge who clearly her heart, she just can't take what's happening in Minnesota. But she's like, I don't think in my assessment as a judge, regardless of who appointed me and regardless of my personal views, I don't think I can do it on this record.
- [42:03]
Andrew Weissman
I think we are in violent agreement. I thought this was a really well reasoned decision that I thought came out correctly, even though I would love to see the surge stop as a policy matter. But I didn't think this, at least given the current state of the law, that this was going to succeed. And that goes to sort of my second point that a lot of times, and I saw this in Washington, it's sort of who's going to sort of have the burden and who's going to sort of carry the public weight of something. And so you can imagine politicals thinking, well, let's go to court. It's not the greatest argument, but we have a shot. But even if the court then says no, we did what we could and the court's going to have to say no, and so we can point to them. I think that does happen. And that's not to say, by the way, that there's politicals who bring this are doing something in bad faith. This is certainly not a bad faith litigation.
- [42:56]
Mary McCord
And I think they feel like they've got to try to do something right because it's so outrageous.
- [43:00]
Andrew Weissman
It also has the effect of they get to say, look, we tried and it was a good faith litigation, but we also now can say we did what we could, but the court said no.
- [43:12]
Mary McCord
And just to be clear for all those listening, that doesn't mean the case is over. There were other legal arguments made, First Amendment arguments, Administrative Procedure act arguments that weren't the basis for seeking the preliminary injunction. So all those arguments, including a fuller elucidation of even the 10th amendment and equal sovereignty arguments, will all be part of the further litigation. So this isn't left like, oh, cases done. It's just the preliminary relief was denied. And so some of those other arguments may result. And it could be that the state and the cities will seek more narrower relief because in their actual original complaint, they have different tiers of relief. It was just the preliminary injunction going big. So let's take a break, come back, talk about the arrest of Don Lemon and Georgia Fort. Both are journalists. And spend a minute on the search in Georgia.
- [44:00]
Andrew Weissman
Sounds great.
- [44:10]
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Andrew Weissman
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Andrew Weissman
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- [45:44]
Andrew Weissman
Welcome back. So I think everyone who's listening to this knows that Don Lemon has been indicted. He was indicted in a non defendant indictment and two of those people, Don Lemon and Georgia Elise Fort, are journalists. There may be a factual issue if this goes forward where they have to show that they were acting as journalists and not as conspirators engaging in activist protests that obstructed a religious institution. Because this was a protest about what ICE was doing, but the protest occurred in a religious institution. The backdrop to this indictment though is super important to understand what the government is doing here because as has been reported and now I think completely documented, they initially sought to charge Don Lemon by way of complaint. That means that a judge would need to sign off on it it as opposed to a grand jury for an indictment. It goes to a grand jury but a complaint goes to a judge. And the first judge, the judge at the sort of beginning level said no as to Don Lemon because they said they don't see any proof that he is a conspirator. He was there as a journalist, no probable cause. Right. And I believe he was live streaming. This people have asked me, well you can be a journalist and a co defendant that there is Just because you're a journalist, it doesn't mean that you can not be guilty of some other crime if you're engaged as a conspirator. But if you're there as a journalist and not there participating, you're there to cover what is happening, then that is not a crime. That is actually First Amendment protected activity. It's not only that you are not guilty of a defense, you are actually protected in what you're doing to cover this. And so here the issue is these two people, Don Lemon or Ms. Forger there, as journalists, then this is doubly wrong. By the way, the decision by that lowest judge who first said, there's no probable cause, I'm not doing Magistrate. Yep. That was then appealed. Guess what? The judge there said, I agree. And so in spite of the fact that you have two judges saying that there's no probable cause here, the government went forward in the grand jury and got this indictment. And so what we have here is two people who appear to be journalists. And can I just give you, Mary, one thing that I think is a tell in the indictment that there's a real problem here.
- [48:21]
Mary McCord
Well, can we back up just for one minute? I'd love everything that you have said, and I agree with, but I'm wondering if people are a little bit unmoored about what the overall charges are. So this is about a conspiracy to violate what's called the FACE Act. It's the Freedom of Access to Clinics Act. And it was originally designed to make it an offense to block people from entering, like, clinics that do abortions, and to do so in a way that you're obstructing people or forcibly or physically assaulting people who are trying to access these clinics. But the statute also has a provision that prohibits by force or threat of force or by physical obstruction, intentionally injuring, intimidating, or interfering with or attempting to do any of those things, any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship. So the conspiracy is about the activists, but they lump in Don Lemon and Georgia Fort, the journalists in this conspiracy to do what they call a takeover style attack on the church that weekend of the protest.
- [49:29]
Andrew Weissman
And so the issue really is, as I said, just because you're a journalist doesn't mean that you can't also be a conspirator. I mean, if you're there because you want to protest, you want to be part of this, you can't just turn around and say, well, I'm also a journalist. So those are Sort of two separate things.
- [49:47]
Mary McCord
You can look at the allegations, though, and a lot of things that they say. They don't say that much about Georgia Fort, but a lot of things that they say about Don Lemon are as to why he's part of the conspiracy or things like him live streaming and saying, I'm not going to reveal where we're headed because that would reveal the plan. And that's because he started covering this when it was being planned by the activists. He tagged along with them as they went into the church, and he continued to cover it in there. So a lot of the things they're pointing to, to your good point, Andrew is like, okay, I think he would say, and I think he's got a good basis to say, I'm still just covering it. I'm just saying I'm not going to reveal where we're headed because that's part of the plan of these activists to do this without signaling in advance they're going to do it.
- [50:34]
Andrew Weissman
Just to be clear, he's not under any legal obligation to reveal that. It doesn't mean that he wants them to succeed as opposed to he wants to cover it. This is what I thought was so fascinating. And again, we'll see if there's other proof. But if you look at overt Act 14 on page eight of the indictment, where they say the government alleges what happened inside the church, and they point to defendants Armstrong, Allen, Kelly, Richardson, Lundy, Cruz and Austin. Now, I don't do math in public, but I'm going to. Now, that's seven.
- [51:14]
Mary McCord
Yeah.
- [51:15]
Andrew Weissman
Who are the two people who are not listed? The two people who are journalists. And what do they say about the seven? They say the seven they say and others, but they don't say it's the two other defendants. They engaged in chanting. They said, ice out, hands up, don't shoot, stand up, fight back, while gesturing in an aggressive and hostile manner, which congregants in the pastor perceived as threats of violence and a potential prelude to a mass shooting. By the way, that mass shooting part, that to me was reminiscent of what Stephen Miller said about Alex Preddy and his being an assassin who was there to engage in mass shooting. There's nothing to suggest that that's what they were there for. But to. My issue here is it's noticeable to me that when they're saying what was physically going on, they don't say that the two people who are journalists were engaging in that. Wouldn't that be something if you thought they were conspirators? Why aren't they speaking and doing that? Why? Because I think at the time, I think that certainly with respect to Don Lemon, he is live streaming this as part of being a journalist. So this suggests he is not chanting. And that's just. To me, it's hard to see how this case survives. I mean, I don't mean to make fun of this, but this is squeezing Don Lemon.
- [52:43]
Mary McCord
Oh, gosh.
- [52:44]
Andrew Weissman
It is one where not only does it appear from the judges who reviewed this beforehand that there was no probable cause. And the indictment itself raises significant questions whether this is a proper charge and could ever be proved. It also raises a question of judgment. This is one where, if you in the Department of Justice thought that this might be a close call, there are lots of other ways to deal with this other than just going ahead and charging him criminally because of the concern about the First Amendment. Remember, if this is going on, the public has a right to know. You don't want to have the Face act work to be that there can't be coverage of what is happening and the journalists can't do this. And the denigration, Mary, to your point of the First Amendment, we've talked about the denigration of the Fourth Amendment, the denigration of the Second Amendment. When we're talking about Mr. Predi, this is the denigration of the First Amendment. We should remember that the administration started out doing these executive orders against the law firms, all four of which were struck down on the First Amendment. And so this is a continuation of a huge assault on not just the sort of rule of law, but fundamental core rights. And the chilling effect of this. The chilling effect of engaging in a search of a Washington Post reporter. All of this as of a piece, and this is one where it's becoming more and more obvious how to string this all together and that these are not isolated instances, but the pattern is before our eyes.
- [54:27]
Mary McCord
Yeah, I mean, you said it earlier, right? It's another one of these brushbacks.
- [54:30]
Andrew Weissman
Right.
- [54:30]
Mary McCord
If you engage in protest, we will use the tools of law enforcement against you. If you don't reduce interest rates, we will launch a grand jury investigation against you. Even if you are the chair of the Federal Reserve, we see it over and over and over again in different manifestations. To conclude us today, we also see grudges and retribution. The president has had a grudge about the 2020 election for now going on six years, and he has talked about it many, many times. But we really saw this in action last Wednesday when there was a search warrant executed at the office of the clerk of Court in Fulton County, Georgia. And it was for all of the ballots and physical ballots, tabulator tapes, ballot images, voter rolls from the 2020 general election in Fulton County. We've seen the warrant. We haven't seen the affidavit in support of the warrant. That is the affidavit that would be sworn out by a law enforcement officer.
- [55:29]
Andrew Weissman
That's where the good stuff is.
- [55:31]
Mary McCord
Yes. That's where the allegations of facts that would support probable cause for the search are in that affidavit that hasn't been public yet. But the warrant does indicate the crimes that are being investigated, and it's United states code section 20701 and 20511. Now, 20701 is a pretty minor crime. I don't even know how it could apply because all it is is requiring the retention and preservation of records by offices of elections for up to 22 months from the date of any general election. Well, we are well past 22 months from the date of the 2020 election. And also it does appear that they had tons and tons of records because many, many things were seized. But more important to me is the other crime that supposedly they are investigating, which is 52 US code 2511, and that, among other things, prohibits depriving, defrauding, or attempting to deprive or defraud the residents of a state of a fair and impartially conducted election process by procuring or submitting voter registration applications that are known to be materially false or fraudulent, or procuring, casting, or tabulating ballots that are known to be materially false, fictitious, or fraudulent. So here we go. Investigating election fraud in Georgia in 2020. Many lawsuits were brought about this. The former Attorney General of the United States at the time said, we looked into this. There's no significant election fraud.
- [57:02]
Andrew Weissman
He, unlike you, Mary, used an expletive to describe it.
- [57:06]
Mary McCord
He did. And what's really revealing that we do not have time to get into, but we will come back to in a premium episode, is the Director of National Intelligence, Tulsi Gabbard, was present at this search warrant. She has responded to Congress saying, what were you doing at a criminal search warrant? You're the Director of National Intelligence. She wrote that her presence was requested by the President and executed under her broad statutory authority to coordinate, integrate, and analyze intelligence related to election security, including counterintelligence, foreign and other malign influence, and cybersecurity. This makes what's in that affidavit all the more interesting. Because you know, she is one of those people who has talked about outside foreign influence. Foreign influence, very important. You were on the Mueller team investigating foreign influence in the 2016 elections.
- [57:59]
Andrew Weissman
Yeah. What's crazy though is that she issued a completely bogus quote report essentially saying there was no interference when there was in 2016. Yes, exactly. Now she's sort of on the other side saying. But there was or apparently is going to be saying there was. The reason that we want to do this as a special is that Mary and I both see this as they are telegraphing. And the Wall Street Journal in a article last week was very good about sort of calling this out. That anticipate that she is going to issue that is the head of the dni, the head of the Intelligence Committee is going to issue a report and we could expect presidential executive orders. That's from the Wall Street Journal reporting. And where is that heading? What is it that Mary and I are looking for? What are we concerned about? That that will be the predicate for what the president I think just yesterday called for, which is federalization of the state processes that are used to engage in elections. Precisely. What he tried to do and unsuccessfully is that will he now try and do that by seizing ballot boxes, seizing voting machines, having federal officers doing tabulations. And of course, given the track record of this administration and just focusing on what they judges have said about the candor, I. E. Lack of candor, lack of trustworthiness, that should cause everyone great, great pause. And I think Georgia is a great example of that because in Georgia, the people who did the counting were Republicans up one side and down the other and they adhered to their oath of office. These are people who had every interest in seeing a Republican win if he had won and they determined that he hadn't and they stuck to their guns. And I'd love to say they get credit for it, but it's what's expected. Yeah, of course that's what you should do. You don't get credit for not engaging in an insurrection. Yes, that's right.
- [60:03]
Mary McCord
One little footnote before we end the Constitution says who's responsible for elections? And it's not the president, it is the states. And so way more to come on that.
- [60:14]
Andrew Weissman
Okay, thanks everybody for listening. Mary, it was wonderful talking to you as always about all of these topics. Thanks everyone for listening. Remember, you can 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 like the show that Mary and I just we're talking about.
- [60:40]
Mary McCord
Exactly. This podcast is produced by Vicky Vergolina, our associate producers Rana Shahbazi and Colette Holcomb is our intern. Greg Devins II and Hazik Bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the Executive producer for Ms. Now Audio.
- [61:00]
Andrew Weissman
Search for main justice wherever you get your podcasts and follow the series.
- [61:20]
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