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Main Justice
Constitutional Showdown
01:00:21
After a highly political speech at the DOJ, the Trump administration stepped into a weekend of tense ligation around the Alien Enemies Act.
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- [00:01]
Alex Wagner
Its President Trump's first 100 days and MSNBC's Alex Wagner will be covering it all from the front lines. What issue matters to you the most? Join her as she travels the country to talk to the people at the center of the President's policies and promises.
- [00:16]
Mary McCord
Do you think now that he's pardoned everybody he can count on this group of people again?
- [00:20]
Alex Wagner
Search for Trumpland with Alex Wagner wherever you're listening and Follow subscribe to MSNBC Premium on Apple Podcasts to listen ad free MSNBC presents a new original podcast hosted by Jen Psaki. Each week she and her guests explore how the Democratic Party is facing this political moment and where it's headed next.
- [00:42]
Mary McCord
There's probably both messaging and policy issues, but as you look to kind of where the Democratic Party is, do you think it's more a messaging issue, more a policy issue?
- [00:52]
Alex Wagner
The Blueprint with Jen Psaki subscribe to MSNBC Premium on Apple podcasts for ad free listening and bonus content. Foreign.
- [01:09]
Andrew Weissmann
Hello and welcome to Main Justice. It is Tuesday morning, March 18th. I'm Andrew Weissman. I'm exhausted. I just can't believe how much has been going on. Thank God I am here with my wonderful co host Mary McCord. Hi Mary.
- [01:28]
Mary McCord
Good morning, Andrew. And belated Happy birthday to you.
- [01:31]
Andrew Weissmann
Thank you so much.
- [01:32]
Mary McCord
You're actually wearing green this morning, as I can see. Did you wear green yesterday on your birthday?
- [01:38]
Andrew Weissmann
I did. I wore a suggestion of green for St. Patrick's Day. And as I told you just before we started, I was on with Nicole Wallace yesterday and she surprised me at the end of the 4 o'clock hour by wishing me a happy birthday and giving me deadline White House swag, which I'll have to show you. It's really great.
- [01:59]
Mary McCord
Cool.
- [01:59]
Andrew Weissmann
By the way, I think that ends the fun and interesting part of the show. So. So I mean, how's that for an anti teaser?
- [02:08]
Mary McCord
Yeah, exactly.
- [02:09]
Andrew Weissmann
Our producer is going to be like, really? So the reason I started by saying how exhausted I am is we are discussing that, what to cover and all of the things that are happening this morning. You and I were trading documents to read and news to read, but we have synthesized it. We think we have a good show for you all. Mary, what is on our agenda?
- [02:35]
Mary McCord
Well, because this is a podcast called Main Justice. Notwithstanding the importance of the news over the weekend, equally important in many ways was what happened on Friday, which was the President of the United States came to the Great hall in the Department of Justice and addressed a crowd there. And it's a speech we want to talk about? Because suffice to say, I've sat in the Great hall for many speeches over my career. I've never seen anything quite like what happened on Friday. So we will start with that. Then we will spend some time on what happened over the weekend, which I would say there's sort of two pieces of that what happened. There's the legal issues surrounding whether the president can appropriately rely on the Alien Enemies act to deport alleged members of what has now been designated a foreign terrorist organization trend in Venezuela.
- [03:28]
Andrew Weissmann
That's one legal issue which for our purposes, let's. Tda. Yes.
- [03:33]
Mary McCord
Just say tda. Yes.
- [03:34]
Andrew Weissmann
Okay.
- [03:34]
Mary McCord
Thank you. So there's that whole, you know, legal issue, and then there's the issue of did the government fail to comply with the court's temporary restraining order? Listeners by now know TRO versus preliminary injunction. They're both injunctions. They're both bars on action or can be bars on action. And this has really elevated into this question of did the government willfully not comply or does it have legal arguments about why it was in compliance? And so I think these are two pieces which we'll discuss.
- [04:04]
Andrew Weissmann
Yep.
- [04:05]
Mary McCord
And then we'll come around and talk about an issue that is in the Supreme Court right now, and that is the question of the scope of the injunctions in three of the birthright citizenship cases. What's in the Supreme Court is a motion to stay those injunctions, but not like the full injunction just to restrict or limit how many people it affects while the litigation is going on. And we'll talk about that. So there's a whole lot on our dance card. But let's just jump in and I will turn it back to you. I have so many pieces highlighted on the president's speech, but what's your initial reaction to Friday's speech? And maybe we should also start with, like, what is the Great hall and why is it important to those of us who've spent so much time in the department?
- [04:50]
Andrew Weissmann
So there's nothing wrong with the president and the executive branch setting policy and saying either at the Great hall, which is the main. Main hall, it's quite grandiose. It's one of two sort of big conference areas in the Department of Justice. And typically the. The attorney General will meet and give a big hello when they first start. When people leave. There are all sorts of ceremonies that happen there. And it's a place for people to feel comradery and for the attorney General to set out her policies and her vision. And a lot of times an attaboy so that's sort of a level set in terms of what could be done and sort of what has been done. One other thing on a level setting is that typically in those events, anybody who's in the department can be there. It's not by invitation. And the reason I raised that is that I was on air with the pardon attorney who had been fired, as she said, for opposing giving guns back to Mel Gibson and had been warned that she should say yes because it was a friend of the president's. And then she was fired. She said that it was by invitation only. This was not open to career people. I can't vouch for it. But that was her views, that this is a select group of supporters, which is very unusual in my experience, that you have something like that. So to me, this is just a continuation of the fact that we do not have the norm post Watergate of a separation between the White House and the Department of Justice. Again, not with respect to policy, but we don't have it with respect to who should be prosecuted and who shouldn't be prosecuted. We have talked about how the president said, I want you to dismiss the January six cases that are pending. That is a directive from the White.
- [06:44]
Mary McCord
House, not I want you to. You will.
- [06:47]
Andrew Weissmann
Yes, sorry. You're absolutely right. And then recently he has said that the pardons given by his predecessor, President Biden, are not valid because they were signed by auto pen and. Or his mental state or whatever reason.
- [07:02]
Mary McCord
But it's allegedly signed by auto pen. I don't know if that's actually confirmed all of it. And so what if it was.
- [07:08]
Andrew Weissmann
Exactly. It's. It's all know what's the correct legal term? Poppycock. Yeah, but the point is not that. That's just against the rule of law. The issue is that the president then said, and thus they need to be investigated. And again, I just want to get clear. And I think probably a lot of our listeners are like, why are you harping on this? It's because I want to make sure people don't forget and we don't normalize the lack of this norm and that we are at a completely different world, the world that we were in with not just President Biden, but you and I have served under numerous presidents, Republican and Democratic. I always tell the story. I was, I worked on the Enron case and it was under President Bush. There was not a single moment where I felt like there was any interference politically and what we could do or should do, it was a third rail. So I just want to make sure people know this is not a political issue. This is a sense of what is appropriate in terms of adherence to democracy and the rule of law. So that was my big picture takeaway in terms of what was happening.
- [08:13]
Mary McCord
Yeah. And obviously, a lot of my reaction is, not surprisingly, very similar to yours.
- [08:19]
Andrew Weissmann
Violent agreement.
- [08:21]
Mary McCord
That's right. I mean, I actually have been in the Great hall when the president came once, and it was actually when Obama came at the farewell party for Eric Holder, who had been the Attorney General for six years. And it was actually quite an amazing event because Aretha Franklin also made an appearance. And that is something I will never forget. So sometimes it's sort of a celebratory tribute to somebody. Right. That might cause a president to come. Sometimes it might be a major announcement of a new policy, or at least I think that would be an appropriate reason to come. But I think one reason it is so odd for a president to come to the Department of Justice is because of constantly wanting to maintain this independence between the White House and the Department of Justice. Now, it's not like the attorney general does not regularly go to the White House for meetings. Certainly the attorney general does, along with all of the president's cabinet. But those are meetings to talk about policy, make decisions on policy, et cetera, et cetera. But it's a different thing for the president to come to the department and address what would normally be Department of Justice attorneys and staff, as opposed to sort of invited guests from all over. Now, mind you, there are often reporters and journalists who are invited to events. Even when it's attorneys and staff, there may be possibly some other partners in, you know, law enforcement, for example, or maybe from other government agencies. But rarely is it something that is all sort of political. Invited guests. At any rate. One reason you don't see it very often is because this idea that you don't want it to appear that the president is directing the investigative or prosecutorial decisions of the Department of Justice. So I think, appropriately, there's been a distance there. And so what was remarkable to me was that this was completely throwing all of that to the wind. It was the kind of speech you would hear at one of Trump's rallies during the campaign, a blatantly political speech that was also filled with retribution. Even the Attorney general, Pam Bundy, in introducing him, criticized pointedly the previous administration and talked about the need to fight for Trump and for the country. Trump first, right, not the country. And again, attorneys at the Department of Justice, they represent the United States. They don't represent the president. And they work to preserve constitutional rights. But just to highlight a few of the statements that do come back, you know, it was political in many, many different ways. But I think what was also alarming is the real direction to go after political enemies. And this is not new, right? We've been talking about it. But it's one thing to say it in a rally, you know, during a campaign. It's another thing to say it in statements to reporters or in tweets. None of that do, I think is right. None of that do, I think has any evidentiary basis. But to come actually to the Department of Justice and say it is really a whole nother step. And it began with him referring to the lies and hacks and radicalized people within the ranks of the American government who had weaponized the vast power of our intelligence and law enforcement to try to thwart the will of the people he talked about. Our predecessors turned this Department of Justice into the Department of Injustice. But I stand before you today to declare that those days are over and they're never going to come back. So now, as the chief law enforcement officer in our country, I will insist upon and demand full and complete accountability for the wrongs and abuses that have occurred. He went on to say, we will expel the rogue actors and corrupt forces from our government. We will expose and very much expose their egregious crimes and severe misconduct of which was. This doesn't really make sense. This transcription might not be completely perfect, but of which levels you've never seen anything like it. It's going to be legendary. And that's just a little snippet of this. He directed things. I want to tell things directly to Todd Blanche, who has now been confirmed as a deputy Attorney general. You know, suggesting this is your job. Todd Blanche and everyone else there in the Department of Justice, he attacked people by name. He attacked journalists, said that what journalists are doing has to be illegal. They're trying to influence judges. It's really changing the law, and it just cannot be legal. So this is his directive to those who remain in the department. And as you just indicated, the next step after that was to declare that the pardons. Not that this is where I think it all comes down to, because the Biden pardons were pretty limited. It was the House Select Committee members and staff and law enforcement agents who testified at the hearing. So pretty limited to begin with.
- [13:13]
Andrew Weissmann
And certain other individuals.
- [13:14]
Mary McCord
Yeah, that's right. And then, yes, there were separate pardons of other individuals, including members of Joe Biden's family. But to suggest that all of these pardons are invalid because they were signed by auto pen. And really, the president, both on Friday and then over the weekend also suggested that there were staff members who were just using auto pen to sign things for President Biden because, in Trump's words, he was not of a mental capacity to be able to make decisions. I mean, there's no support for that, of course, and no support that rogue employees were drafting things and signing them by auto pen. But it's similar that there's no support that employees at the Department of Justice under the previous administration and many administrations before that were doing egregious crimes. So it's rhetoric, but it's dangerous rhetoric. And it's just all the more alarming because it was right there in the Department of Justice.
- [14:07]
Andrew Weissmann
It does make more important something that I keep on trying to focus on, which is the media covers adjectives and adverbs and Donald Trump says things. But to your point, what's the support for it? So saying that this is what the prior administration did, or using childish invective about people, that doesn't make it true. And it is also not particularly newsworthy. The issue is, tell me what the facts are. What is it that lets you say that? If you are saying that the January 6 cases were improper, what is it? What are the facts that lead you to say that? What is the evidence for that? And that issue is one where it made sense to me that the speech was not given to career people at the department because it was so antithetical to all of that training, regardless of party.
- [15:04]
Mary McCord
That's right.
- [15:05]
Andrew Weissmann
Mary, before we leave this, this seems like a good place to talk about what the president has done through executive orders and attacking three law firms so far, Covington and Merling, Perkins Coie and Paul Weiss, which are three major law firms in this country. Mary, what's he been doing? And I know we have a judicial decision on the Perkins Coie piece, right.
- [15:29]
Mary McCord
And you know, we did talk last week about the attacks on the first two of those law firms doing things like really blacklisting. That's what it was. Right. And he's now add a third to the mix, that is Paul Weiss. And I think it's pretty extraordinary the way the executive order regarding Paul Weiss, another blacklisting order similar to the one against Perkins Coie, where security clearance are stripped, where any type of government contracts are to be terminated upon review, where there's going to be limitations on access to federal government buildings, limitation on access to even having discussions with federal government Employees, which would mean if a law firm does government contracts work, does federal regulatory work, does litigation in federal courts, all of those things could mean essentially they cannot continue to do their job. And that's why the opinion of Judge Howell last week, after a hearing when Perkins Coie challenged that, that's why that opinion is so important. We're going to talk about that in a minute. But I. After that opinion, after that hearing in which she issued her opinion from the bench, even after that, the President attacked another law firm. And the opening line is so extraordinary to me. Global law firms have for years played an outsized role in undermining the judicial process and in the destruct of bedrock American principles. He even attacks global law firms that do pro bono work, ostensibly, he says, for the public good, but potentially depriving those who cannot otherwise afford the benefit of top legal talent the access to justice deserved by all. Pro bono work is in the finest tradition of the legal profession. Pro bono work is frankly, also what my organization does. So, I mean, that's quite something for me to say that. But even at law firms that usually take paid clients, they will engage in pro bono work that might be representing criminal defendants who can't afford counsel. It might be representing people who've suffered various different civil rights violations who can't afford counsel. It is one of the greatest traditions yet that's being attacked by this president. And it's consistent with sort of the attacks he was previewing in his speech. But one of these has been challenged so far. That is the Perkins Coie order. Lawyers from Williams and Connolly very quickly filed litigation on behalf of Perkins Coie. And Judge Beryl Howell in the D.C. district Court here had a hearing, and she ruled from the bench. And she issued that temporary restraining order. She issued it on three constitutional grounds. First Amendment grounds that it was in retaliation for speech and expression, and who the law firm represented. It was also viewpoint discrimination, also because of the viewpoints of those that the law firm represented. She found that there were due process violations because there is a property interest in having contractual relationships with the law firm's clients, and also liberty interests in the reputation of the lawyers and the law firm. Their right to petition the government for redress of grievances under the Constitution, their right to engage in their chosen profession. And she found Sixth Amendment violations on behalf of their clients who had a right to counsel of their choice, and that counsel was largely being deprived of them. Because if you restrict the law firm's work so much that they cannot effectively represent clients, then they are not able to be counsel of choice. It was an extraordinary ruling because it was an extraordinary executive order. And I just want to end this segment with a quote from her opinion. She said, without issuance of a tro, lawyers around the country may be in fear of retribution for litigating against or advancing cases for clients with viewpoints disfavored by the Trump administration. Such a circumstance threatens the very foundations of our legal system, which operates on a basis that an informed, independent judiciary presumes an informed independent bar. Our justice system is based on the fundamental belief that justice works best when all parties have zealous advocates, when all sides have vigorous representation and can present for the court to hear powerful statements on both sides of the question. There's so many more quotable parts of that that we don't have time for. But, you know, this is again, a real attack on the entire system of justice because we now have also attacks on the judges themselves.
- [19:57]
Andrew Weissmann
Yeah. I mean, as I said last week, this is one where from the Trump administration it may be viewed as sort of a win win, which is they issue the executive order, it gets struck down, but the chilling effect is there. And that's it's hard to see that that wasn't the intent. Because if you are a lawyer and you're looking at this, you sort of know in advance this is what's going to happen, that it's going to get struck down. But it still has sort of that political effect and it fits exactly with what we're talking about, the undermining of the rule of law, which is probably a perfect segue to the litigation about the Alien Enemies Act. So when we come back, we'll tee that up. And I have a way, I think, of framing that discussion to get us through the sort of various buckets. But why don't we take a break and we'll continue with this, but in a very explosive context that is ongoing as we speak.
- [20:50]
Mary McCord
That sounds good. Foreign.
- [20:59]
Alex Wagner
Subscribe to MSNBC Premium on Apple Podcasts. New episodes of all your favorite MSNBC shows now ad free plus ad free listening to all of Rachel Maddow's original series, Ultra Bagman and Deja News and all MSNBC Arrest. Original podcasts are available ad free and with bonus content including why Is this Happening? Velshi Band Book Club and more. Subscribe to MSNBC Premium on Apple Podcasts. Stay up to date on the biggest issues of the day with the MSNBC Daily Newsletter. Each morning you'll get analysis by experts you trust, video highlights from your favorite shows.
- [21:39]
Mary McCord
I do think it's worth being very clear eyed, very realistic about what's going on here.
- [21:44]
Alex Wagner
Previews of our podcasts and documentaries, plus written perspectives from the newsmakers themselves, all sent directly to your inbox each morning. Get the best of MSNBC all in one place. Sign up for msnbc daily@msnbc.com.
- [22:02]
Andrew Weissmann
Welcome back. So, Mary, let me give you maybe a way that I've been thinking about this, the way I sort of frame it up into different buckets and as a sort of good table setter in terms of mindset to the Alien Enemies act litigation over the weekend. And I love the way you separated out. There's sort of the weeds, the legal issue of what is happening that's super concerning, but also concerning is this issue of whether there was contempt. Can I just give you a slight framing of how I look at contempt? Because there is what the government is saying in court at the trial level, to Jeb Boasberg, the chief judge of the D.C. court, and to the court of appeals, because there's appellate litigation going on, too. There's what's being said in court and there's what the administration up to and including the president are saying publicly, but outside of court, because I think there's a fissure. There's a slight difference between that and it goes to sort of this idea of whether we're in a constitutional crisis looking at how that language is being separated. When you lose the Wall Street Journal editorial page, you know you got a problem. Yep. Today they are saying it's fine to disagree with a judge. You can appeal the judge. You can tell the public that you disagree with the judge, that he overstepped his bounds. But you can't just defy the order. You have to comply with it. And we have a structure here. And if you say that the prior administration was against the law and was violating the law, you can't recapitulate that yourself. You can't imitate it. You have to exemplify what it is that you say should be done. All of that seems like basic civics that you learn in elementary school and high school. But let's talk about and tease out sort of what's going on and separate those into different buckets.
- [23:56]
Mary McCord
All right. So let's start with the substance then, pursuant to that framing point, the Weisman bucketizing. That's right. There we go. So again, we're talking about the Alien Enemies Act. This was an act enacted on July 6th, my birthday, but not the year I was born, 1798. And it was really about giving the president authority, frankly, over sort of like spies and others who might be in this country when we are at war. It is a wartime authority. So it says, whenever there shall be a declared war between the United States and any foreign nation or government. Pause there. There's no declared war right now between the United States and any foreign nation or government. And the government is actually not. Is not relying on that first sentence I read.
- [24:42]
Andrew Weissmann
Yeah. So it's not a declared war issue. Right. But it's useful as context because the idea was when you have a declared war, which I think is. It's been only invoked that way.
- [24:52]
Mary McCord
Yep. Only three times. War of 1812, World War I, World War II. So each time it's ever been invoked. Yes, we have had a declared war. Declared by who, Andrew?
- [25:01]
Andrew Weissmann
That would be Congress.
- [25:02]
Mary McCord
Congress who has the power to declare war. Not the President. Okay, so we'll put that one aside.
- [25:08]
Andrew Weissmann
By the way, just to be clear, that's in the Constitution. Yeah. We're not making it like, explicitly.
- [25:14]
Mary McCord
Right, that's right. So, okay, that's the first half of the first sentence. But that's not what's at issue here. What's issue is the. Or sentence. Or any invasion or predatory incursion shall be perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government. Okay, so these are the two circumstances what can apply. Declared war. We don't have that. Or an invasion or predatory incursion by any foreign nation or government. In that case, all native citizens, denizens, or subjects of the hostile nation or government being males at the age of 14 years and upwards, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
- [26:04]
Andrew Weissmann
So, Mary, what's the government's argument for how the TDA gang. How is it that they get to say that that satisfies either an invasion or predatory incursion and that this is a foreign nation or government when we're talking about a gang? So what's the government's argument for that? And then finally, isn't there some ability for if you are an alleged gang member and let's say you've been in the country, the United States for a while, don't you have an ability to have a hearing in others? Let's just take my hypothetical of you have a hundred people who are scooped up, and let's say the government gets five of those wrong, like they just made a mistake and they've scooped up Totally innocent people who are not gang members. How do they get a hearing? Normally you and I would be thinking, don't they have due process rights to have a hearing to say, I'm not part of that group? So to me, those seem like the sort of subgent buckets. How do they.
- [27:02]
Mary McCord
That's a compound question.
- [27:03]
Andrew Weissmann
Yes, exactly.
- [27:04]
Mary McCord
But I'm pointing it up. Yes, right.
- [27:06]
Andrew Weissmann
I'm a lawyer.
- [27:07]
Mary McCord
Compound question.
- [27:09]
Andrew Weissmann
Okay, over.
- [27:09]
Mary McCord
Overruled. The government's argument is the TDA essentially is part of a hybrid criminal state. And this is according to the President and his executive order, it's actually a proclamation invoking the Alien Enemies Act. He says that TDA is part of a hybrid criminal state that is perpetrating this invasion and of a predatory incursion into the United States. He says it also operates as a de facto government in certain areas of Venezuela and that essentially it's so intertwined with the Maduro government, which is a government not recognized by the United States, that essentially these are one in the same. Therefore, this TDA is a hybrid criminal state. It is almost. I can hardly get the words out because it is somewhat nonsensical. I mean, TDA is not a state. It's just not. It's not a nation. Just like ISIS frankly, was not a state or a nation, even though it had actually taken territory in Syria and Iraq at the time that it was in its height in 2014, 2015. It is a non state actor. It is now TDA, a designated foreign terrorist organization. Yes, but it's a real stretch to say it is a foreign nation or government. And remember, that's where Alien Enemies act applies.
- [28:23]
Andrew Weissmann
And what about the issue of an invasion or predatory incursion?
- [28:27]
Mary McCord
Right. Also quite a stretch because invasion historically has a military based definition of an invasion of a hostile enemy force, a nation state, enemy force coming in to take territory. Right. And things like that. The government though takes a broader view of the word invasion, says, oh yes. Although the word invasion of course includes a military entry and occupation of a country, the accepted definition is far broader. An invasion is, quote, an intrusion or unwelcome incursion of some kind, especially the hostile or forcible encroachment on another's rights or the arrival somewhere of people or things who are not wanted there. So that's really what they're basing it on, the arrival of people or things, people in this case TDA members or alleged TDA members who are not wanted there. And that's their basis for saying this is within the President's power under the Alien Enemies act to detain and remove from the United States these alleged members of Trend Aragua. Now you ask another question. I'm going to kick this one back to you because I've been talking for a very long time, which is don't you normally have some proceedings under the Immigration and Naturalization act before you are just put on a plane and deported? Isn't there a responsibility, even assuming for a minute that the Alien Enemies act would apply to the circumstance, don't you have some opportunity to say, hey, I'm not actually a member of tda. I don't fall within this. The president did not issue a proclamation that all Venezuelans here in the United States were part of a hostile nation that could be expelled under the Alien Enemies act, just males 14 years or older who are alleged members of TDA.
- [30:16]
Andrew Weissmann
So the government has very much stressed that the president makes these determinations and they cannot be second guessed by the court and in fact has gone so far to say that they're powerless under various doctrines, such as the political question doctrine, that the court should not be reviewing this issue under the statute of determinations made about what's a foreign government about whether it's an incursion, et cetera. By the way, I can't help but think about the litigation which feels like a million years ago, on whether the president was qualified to run for office if he engaged in an insurrection or gave comfort to an insurrection. And the Supreme Court was not receptive to that and had all sorts of requirements about what it would mean to be an insurrection. And it was not. Oh, the government just decides whatever it thinks an insurrection is. And once the president determines that, the courts can't weigh in on it. In fact, they had a lot of dicta about that particular issue. So there's definitely no consistent through line. But it's basically saying you don't the court shouldn't have any role. And that's one of the key issues now in a re argument to Judge Boasberg. And it certainly will be an issue on appeal. But to your point, which was throwing back in my face the issue of shouldn't there be a due process right to be able to argue that you're not within that group? I was very nerdy today. And one of the things that the government relied on in its brief to Judge Boasberg is a D.C. circuit case that is a D.C. appellate decision. So the intermediate court, they say, judge, this is a case that's binding on you because it's an appellate court decision. It's called citizens protective league versus Clark. It was decided in 1946. It's coming up just at the end of World War II.
- [32:16]
Mary McCord
That's right.
- [32:16]
Andrew Weissmann
And there the court is dealing with a declared war, to be clear, against Germany and the issue of what happens with Germans in this country and whether they can be removed under the Alien Enemies Act. And notably to my question and your question back to me, which are the same, the court says the Attorney General concedes that these people would be entitled to that hearing to show that they are not in fact within the group. And the court goes on to say, but that's not an issue here because the plaintiffs who are bringing this concede that they are. That there's no issue because they've actually done it, but they otherwise would be entitled. And the government itself concedes. And the court says it has jurisdiction to decide that issue.
- [33:09]
Mary McCord
That's right.
- [33:10]
Andrew Weissmann
And so if you're Judge Boasberg and you're looking at this and you have the government saying this case is binding.
- [33:16]
Mary McCord
On you, well, you better read the case.
- [33:19]
Andrew Weissmann
Yeah, exactly.
- [33:20]
Mary McCord
Which of course the judge will. Because it was about a different issue. Right. It was about whether the war was over.
- [33:25]
Andrew Weissmann
Exactly. And that issue of, if you want to know why, one of the reasons that Judge Brosberg said there's a 14 day stay now so that we can sort of flesh this out, this is one of the issues before you remove people, they may have what's called a Matthews v. Eldridge. It's a famous Supreme Court case about due process rights, that they have a right, at the very least, not just the issues you raise, Mary, which is.
- [33:53]
Mary McCord
Huge invasion, foreign nation. Yeah.
- [33:56]
Andrew Weissmann
Even if you meet all of that, are you within the group? And so that is something that he is bound actually by the decision that they say he's bound by. And so none of the people have been determined to be that. And I'm just going to jump quickly to one point when Jeb Boasberg issued his decision. Pam Bondi the next day was on air and she criticized the judge in terms of saying she disagrees, that we're going to appeal, that he stepped over. That's fine. That's fine. She's entitled to do that. That's absolutely fair game. But she starts by saying that he is supporting terrorists over the safety of American people. That is a political statement. That is not what you expect from the Attorney General. And it is also so obviously not what the legal system's about. When a judge says that a defendant is entitled to Present certain evidence or that certain evidence can't come in. Is that because the judge is saying, I agree with the crime the defendant is alleged to have done? I mean, it is so anathema to the rule of law to suggest that the judge is citing and supporting terrorism. He's supporting the rule of law.
- [35:10]
Mary McCord
That's right.
- [35:11]
Andrew Weissmann
I should say, on the same token, it really bothers me because it's the Attorney General, but the President of the United States this, this morning put out a tweet saying that Jim Boasberg should be impeached. And that kind of language is to undermine, is to go back to the speech about undermining the. The media, undermining the judiciary. It's so that there is no more check and balance on our system.
- [35:35]
Mary McCord
That's right. I think that it's a dangerous statement to say, but it also completely misrepresents what a court of law is doing. When a court is looking at what is the statutory authority for what is happening, and is it authorized by that statutory authority, and what rights do the plaintiffs have under the applicable statutory and constitutional authority? I mean, that's what judges do. That's what their job is.
- [35:58]
Andrew Weissmann
So in a very, very rare comment from the Chief justice of the United States, John Roberts, apparently, although he doesn't reference it, apparently in response to Donald Trump tweeting about calling for the impeachment of judges, and particularly Judge Boasberg, the Chief justice has said the following in a statement, and I'm going to quote it, for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose, unquote. So that's obviously quite unusual statement, and it doesn't get into a total tit for tat. But it is really important, obviously, to sort of counter this attack on the judiciary. That clearly is what motivated this. We'll see what the response is, if any, from Donald Trump or, you know, anyone else in the executive branch.
- [36:58]
Mary McCord
And I also want to be clear, you know, there is no indication anywhere in anything that Judge Boasberg has said so far, or I think you and I would also agree, members of this criminal gang are engaged in activities that are dangerous and unlawful. You know, under US Law, they've now been designated as a foreign terrorist organization. I haven't probed sort of behind that. That requires the criteria of, is it a foreign organization, does it engage in terrorism, or have the capability and intent to engage in acts of terrorism as defined under U.S. law. And is it a threat to U.S. nationals or U.S. national interests? Put aside whether that designation was appropriately based or not, I don't really have all the facts and details to know. But it's not people who are members of any type of violent criminal gang. That's a real problem, and it's a problem for public safety here in national security. So I don't want to discount that. And, you know, both of us come from national security and public safety. But that is a different question than is the law being followed? Is the Alien Enemies act an appropriate authority for the action being taken here? And are these people who are being put on planes and flown out of this country to El Salvador to be put in mass detention centers in El Salvador, a country that's not exactly known for the rights and civil rights and human rights that it affords to its detainees, are those people even getting the proper due process that they require? These are the legal issues.
- [38:27]
Andrew Weissmann
It's so crazy because this is what we did for a living. I mean, we were prosecutors for, you know, umpteen years. And you don't sit there and say, well, the person did a lot of bad things, so we're not going to have a trial.
- [38:38]
Mary McCord
Right, Exactly.
- [38:39]
Andrew Weissmann
Now, going back to Judge Howell, when she was ruling in favor of Perkins Coie, she says, you know, it may be amusing in Alice in Wonderland to read that the queen said, you know, off with their heads, trial to follow.
- [38:54]
Mary McCord
Right.
- [38:54]
Andrew Weissmann
But that's not the way it works in the real world. And it's scary to do that. And so you just don't ever think about that. And you wouldn't phrase it that way when you're in the government. The idea is, you might think, of course, the person's done something terrible. It's my obligation to prove it beyond a reasonable doubt. But they entitled to all of the rights of a defendant.
- [39:12]
Mary McCord
That's right. You don't put them in jail, throw away the key and say, that's it.
- [39:15]
Andrew Weissmann
Right.
- [39:15]
Mary McCord
So this is a good segue to the other piece of this, which is what did the judge order over the weekend? Did the government comply? Right. Before we go, I'll say this temporary restraining order that was issued, that is on appeal, that's being briefed this week. And also pursuant to even Judge Boasberg's order, the government filed yesterday a motion to vacate his temporary restraining order. The plaintiffs have to file a response tomorrow. He'll take that up. So this is happening now. Further litigation over these legal issues is happening in both the district court and certain things on appeal to the Court of Appeals, which we will be able to follow up on next week. But we will take a break and move on to the issue about compliance with court orders.
- [39:59]
Andrew Weissmann
Yes.
- [40:09]
Alex Wagner
It'S President Trump's first 100 days, and MSNBC's Alex Wagner will be covering it all from the front lines. What issue matters to you the most? Join her as she travels the country to talk to the people at the center of the president's policies and promises.
- [40:24]
Mary McCord
Do you think now that he's pardoned everybody he can count on this group of people again?
- [40:28]
Alex Wagner
Search for Trump Lessons with Alex Wagner wherever you're listening and follow. Subscribe to MSNBC Premium on Apple Podcasts to Listen ad Free MSNBC presents a new original podcast hosted by Jen Psaki. Each week she and her guests explore how the Democratic Party is facing this political moment and where it's headed next.
- [40:50]
Mary McCord
There's probably both messaging and policy issues, but as you look to kind of the Democratic Party is. Do you think it's more a messaging issue, more a policy issue?
- [41:00]
Alex Wagner
The Blueprint with Jen Psaki. Subscribe to MSNBC Premium on Apple Podcasts for ad free listening and bonus content.
- [41:13]
Andrew Weissmann
So, Mary, let's talk about this idea of compliance with a court order. Before we talk about what's been said in court and what we know about the facts, it is useful to note, and we have a clip that people like Tom Homan are basically saying, we don't care what the judges say. We're going forward. And I think it's useful to focus on that because where you sort of talk about this constitutional crisis, whether you will follow a court order outside of court, it appears that's where we are because you have this clip. Every day the men and women of.
- [41:42]
Mary McCord
ICE are going to be in the neighborhoods of this nation arresting criminal, illegal alien, public safety threats and national security threats. Lawrence, you're not going to stop us. We're not stopping. I don't care what the judges think. I don't care. The left thinks we're coming.
- [41:56]
Andrew Weissmann
That's what you're hearing outside of court, inside of court. That has not yet happened. No one has said that. Here's the TikTok of which by the way, anyone who's younger, who's listening, this is going. What do you mean? Here's the TikTok. Here's what happened. The judge issued an oral order and said, you know, essentially everything has to stop. And also if their planes in the air turn them around and was very concerned saying, look, I know essentially I lose Jurisdiction once the planes land and the people in the planes are given over to a foreign authority. So anything short of that, turn them around, I don't want to lose jurisdiction over this. That's my oral order. And later he follows that up with a written order. That is to quote the judge Pythia, it doesn't have the piece about turn the planes around. But that was in the oral order, but not in the written order. It appears, if you look at, let's say, the New York Times website, the Washington Post also has this on their website, a sort of TikTok of essentially three planes. And there are two planes that appear to have taken off prior to the oral order, but could have been turned around and in compliance with that oral order because they hadn't landed in South America. There is a third flight that appears to have taken off after the oral order and maybe even after the written order. And so the issue that the judge was focused on yesterday at this hearing, which the government kept on trying to say, don't even have the hearing. We, the government, have determined there's no contempt, so you shouldn't have a hearing, which is not the way it works.
- [43:46]
Mary McCord
And you have no jurisdiction because this is all within the authority of the president under Article 2.
- [43:52]
Andrew Weissmann
Right, right. So the judge had none of that and said, we're having this. So that sort of the state of play was whether there was compliance with the oral order, whether there was compliance with the written order. The judge wanted to have a hearing yesterday at 5:00. The government opposed that and said, you shouldn't have that hearing. They also made a filing in the circuit court saying, stop this and remove the judge.
- [44:16]
Mary McCord
Not a normal filing. I mean, I've seen motions to recuse like a writ of mandamus, a petition for a writ of mandamus, or a motion, emergency motion to remove the judge. No, they just wrote a letter, wrote a letter to the clerk of the court asking the court to remove.
- [44:30]
Andrew Weissmann
Yeah, that didn't happen. So it went forward at 5 o'clock and the judge was trying to find out what happened and what the facts were. One of the most remarkable things was that with respect to compliance with the oral order, the government said, we thought that the oral order was superseded by the written order because it didn't lay out all the same terms. And that's a remarkable proposition. Judge Boseberg seemed quite surprised by that. He had a little bit of shade at the end when he issued an order with respect to what he wanted today. And he said, I'll put that in writing, because apparently my oral orders don't carry a lot of weight. And by the way, Judge Boasberg is not the kind of person, as, you know, Mary, who, like, that's about as snarky as I've ever seen him curial.
- [45:21]
Mary McCord
Or condescending to the parties or any of those kind of. Of things. He's a very, you know, even killed. Yeah.
- [45:28]
Andrew Weissmann
Yeah. So even if that's true, this issue of the written order superseded the oral order. It doesn't explain why there wasn't compliance with the oral order before the written order came out, because there was no effort, seemingly, to turn those planes around. And there certainly is reporting. We don't know how accurate is that. People in the White House might have basically said, I'm not doing that.
- [45:51]
Mary McCord
You don't have to.
- [45:52]
Andrew Weissmann
And the arguments appear to be that once the planes get into international airspace, Somehow the Article 2 power expands and the court somehow loses jurisdiction over the airplane at that point, even though, as the court said, the court's equitable jurisdiction is over the person. And so these were still United States people flying the planes who could be ordered to turn around. It doesn't matter where they are. So it seemed like a very, very weak argument.
- [46:24]
Mary McCord
Can I just put a little bit finer point on it to make sure people understand how the government's arguing this? Basically, they're saying, you ordered that no one be removed. Right. But the flights had already taken off, so the removal had already happened before your written order, you know, was conveyed to the pilots. The removal was done. Nobody violated your order not to do a removal once they're removed and they're over international waters. Now the president has this conclusive and preclusive Article 2 authority over foreign relations, national security, and diplomatic relations with the foreign government. And at that point, the court loses jurisdiction, because now this is all about our negotiations with the president of El Salvador to accept these migrants and our foreign relationships and diplomacy and national security. And so the removal was done. We didn't violate your order. Now we have a new authority. And I want to parse that out for two reasons. One, it is an interesting argument. We'll see how that plays out. I mean, essentially, it's like if you can get the heck out of US Airspace fast enough, the removal's done, and now you're in Article 2 territory. It's one thing to say we didn't violate because it was already removed. It would be a whole nother thing to say the whole thing was within the president's Article 2 authority. Even the Removal over the court's order. I think some of the things that the government has filed have suggested even this latter would be okay, but that's still not what they have primarily argued. The other reason I think it's important is because contrary to the quote from Tom Homan, some of the other quotes we've seen the spokesperson for the White House saying it was an illegal order and suggesting we don't have to file illegal orders. Contrary to that, this argument in court is not. We have violated the court's order.
- [48:16]
Andrew Weissmann
Exactly right. I think there's such a huge. I mean, in court, that is not what the administration saying. And so that's why they're sort of in court, out of court. The issue of the first part, that removal. It's worth noting that the oral order from the court was not just do not remove them, it was also bring them back.
- [48:35]
Mary McCord
That's right.
- [48:36]
Andrew Weissmann
And that is one where I think the sticking point for the government's going to be because the issue is why didn't they bring it back and why wasn't that done between the interim of the oral order and even assuming the legitimacy of the argument that the written order super. Somehow supersedes it, what was being done during that period? Because it was crystal clear and the lawyer, you know, for the government said as much in terms of, like, understood what the judge was saying. So there's no claim that they didn't hear it or didn't know it or that it was an ambiguous oral order. They're not making that argument. And so there really is this time period where it's unexplained why something wasn't happening at that point. Now maybe they can show that the plane at that point was already in international waters. And so that's some argument. It seems pretty weak to me, though.
- [49:30]
Mary McCord
And I think the other thing that, you know, was really interesting about this argument is that the court then pressed the government on this and they basically said, for national security reasons, we cannot reveal details about exactly when flights took off and what was known when, by whom. That would be a national security matter that cannot be revealed. Wait, wait.
- [49:52]
Andrew Weissmann
Can I just say, Mary, I want to take it outside of court for a second, but see the produced videotape of the flights landing. Yes.
- [50:01]
Mary McCord
And put out as a propaganda video.
- [50:03]
Andrew Weissmann
Right. And trotting them off to prison. I mean, it's not like these people. I mean, they were disappeared in the sense that there was no notice. There's. We're trying to figure out still, like, who's on the Planes. The judge was trying to find that. But it's not like this was so secret.
- [50:18]
Mary McCord
That's right.
- [50:18]
Andrew Weissmann
And so this is one where this sort of like, oh, what are those national security concerns about this? And so I interrupted you because what was the judge's reaction to that? This is Jeb Boasberg, who, by the way, sat on the FISA court, which is the National Security specialized court in D.C. yes.
- [50:35]
Mary McCord
The Foreign Intelligence Surveillance court. Yes. Well, he really wasn't having that. He's like, first of all, I can hear classified information. We may have to go into closed session. But I can hear it and also explain to me. Right. What should be classified about this.
- [50:48]
Andrew Weissmann
And it's your burden, and it's your burden to do that. So don't tell me you're not telling me. You have until noon today to tell me. So we now have gotten the two things from the government that were required to be filed by Judge Brosberg. One is a notice in response to the court's order that lays out what the government's position is sort of legally. And the other is an affidavit that was required to be produced. And it is quite interesting. So if you remember, there are three flights at issue. And Mary, as you had said, two of the flights, the argument was that they took off post the oral order, but before the written order. And this makes clear that the governance position is yes, they took off before the written order, and thus the people on the flight were removed by having been taken off and before the written order. They say those flights were in international airspace. They were out of US Territory. What the legal ramifications of that remain to be seen. But in terms of what exactly happened, they say they both took off and were out of US Territory at the time of the written order. With respect to the third flight, firstly, the government says with respect to that third flight, that definitely took off after the written order. But here's the key. The government has now clarified that nobody on the third flight was removed pursuant to the Alien Enemies Act. It wasn't pursuant to the president's proclamation. Instead, there were independent immigration grounds to remove them, which would make that lawful. And that issue was called out by the government lawyers. Lawyer at the time of the restraining order going into effect, where the government lawyers specifically asked the judge if there's some independent ground to remove them. I assume you're not enjoining that. And the judge agreed. So this is now a bit of a tempest in a teapot. I don't know why they didn't say this earlier, but the third flight, if that representation is true, is now off the table because there was an independent basis. We're not dealing with the Alien Enemies act at all. And then the government said that it's not going to give any further information to the court and it says it's not required to, at least at this juncture, certainly isn't going to do it in open court. They say that they don't think they should have to even do it in camera or ex parte in camera, at least until the Court of Appeals rules. But they say if you do insist that we give it to you, we would do it in camera. They do say what their reasoning is, though. They say that the reasoning is that their view is that the oral order with respect to the first two flights is not independently enforceable for the reasons that we discussed. And so until and unless that issue is clarified by the Court of Appeals, they don't think that they have to do it. I think the big picture here is that there is this big dichotomy between what's happening in court and the kind of language that you're hearing from Donald Trump about impeachment or with respect to we're going to ignore judges. That's not what's being said here. You may disagree with the arguments and matter of fact, you may think that they're weak or some of you might think they're strong, but they're making arguments to the court. And that is very different than just saying we're just not following what you say. And so there really are sort of like two very distinct ways in which the government is operating the sort of public way and what's happening actually in court. And as much as I might disagree with some of the arguments, I think it is heartening to see that it's fine as long as they're good faith arguments. That's what the courts are for. And so I wish it hadn't been exacerbated by that kind of inflammatory language that we're seeing sort of up and down the administration because they could have just said, look, we're litigating this and or we think that Judge Boseberg got it wrong. I mean, that that would all be fine. But I do think these filings are clarifying and also the tone, by the way, is respectful. So that's the latest on this. Mary, I wanted to toss something to you that is going on in the Supreme Court. I know that icap, your group has very focused on this issue which you talked about a little bit at the beginning, which is this idea of like a judge issuing a injunction, but it's sort of a universal junction that precludes the government from taking that action anywhere in the country. I should say this is something that judges have done under various administrations. So, like, you know, Trump is complaining about it now, but it is something that was used in litigation against the Biden administration in various forms. So it's something that could be a problem, but it's been used against various administrations.
- [56:01]
Mary McCord
Well, and let's be clear, no administration loves these like they don't. You know, under Biden, you would have litigants run into a single judge district court in maybe, let's say the state of Texas, maybe, whose name starts with a K, and seek a universal injunction against various Biden initiatives, including things like, and I'm not sure if this was in that particular court, things like student loan relief and things like that. So sometimes what presidents do under both administrations get challenged, and they get challenged in a way that a single district court judge says that's unlawful. I'm enjoining that around the country, nationwide, a universal injunction that's been criticized by administrations under both parties, that a single judge sometimes should not have that power. There have been some justices on the Supreme Court who've raised questions about universal injunctions, but they still are something that the court has condoned in opinions where it's necessary to provide complete relief, to actually avoid sort of chaos in the administration of a law, particularly in an area where there's a need for uniformity and citizenship. Birthright citizenship, who in this country is a citizen and who's not is certainly something we have a need for uniformity about. And the reason this has come up now is that in every case so far that has gone before the district court challenging the executive order that seeks to restrict birthright citizenship, in each one of those cases, there have been preliminary injunctions entered. And in three of those cases, the three that are up in the Supreme Court right now, including the one that my organization has brought on behalf of pregnant mothers and organizations that include pregnant mothers whose children will be subject to this executive order, the only issue up there right now is not the merits of the decision about the 14th Amendment, it's a challenge to the universal injunctions that were issued in those three cases. And the government is saying you should limit the injunction just to the named plaintiff. So in our case, for example, that would be the five pregnant mothers. And then illustratively, to illustrate the membership of the two associations that we the two organizations that we represent, as membership organizations, we outlined sort of the situation and the description of another 10 or 11 pregnant women. And the government is saying the injunction should be just limited to them. And in the case of the state's cases, because, remember, states brought cases, it should just be limited to those states. And even if in the case, the CASA case, that's the one I kept involved in, even if it's not limited just to those women and families, it should just be limited to the members of the organizations CASA and asap, the Asylum Seekers Advocacy Project. Okay, so imagine this world, right? The citizenship of your child, then, would depend on which state you're in. So if you were in the state of Washington, your newborn baby is a citizen. If you're in the state of Tennessee, your newborn baby is not, unless you could show that you were a member of ASAP or casa. Now, they don't have a membership card. Yes. There are hundreds of thousands of members, and they, you know, that membership fluctuates day to day. How do you even prove that? So imagine the chaos that would ensue. Frankly, this executive order, even if it went into effect at all, would cause chaos. But this kind of partial effectiveness, that essentially means that everyone is going to have to have some other way of showing citizenship than what has historically happened. And it would be even more complicated without a universal injunction. So if ever there is a case for a universal injunction, it seems to me that this is it. And that's now in front of the Supreme Court being brief.
- [59:44]
Andrew Weissmann
By the way, this is a good example of. I actually. Exactly the example that you did of, like, what would happen if they let this go forward. That's. I was reading your brief this morning. That is exactly. The thing that I found really persuasive was just. It just wouldn't work. There's just no way to do it. I just want to quote something that you start your brief with, because I thought it was beautifully written. It goes to the merits of birthright citizenship, the case that we've been talking about. That goes really to the heart of the substantive right, not the adjunctive part. Part, which is birthright citizenship is at the core of this nation's promise that each person is born equal with no curse of infirmity and with no exalted status arising from the circumstance of his or her parentage. It was really, really powerful. You know, this is one. I just knew this was a Mary McCord brief when I was reading it. I know there's lots.
- [60:39]
Mary McCord
That's my team.
- [60:40]
Andrew Weissmann
I knew you were gonna say that it's true. There's a lot of people in these things. As you know, it's like the briefs are really, you know, there's lots and lots of people who weigh in on it. It was a beautiful way to start. And it you go on from there to quote Abraham Lincoln. And it's a beautiful read. So congratulations on that.
- [60:58]
Mary McCord
Now, that's the brief in the Fourth Circuit where we won on this issue. We are currently briefing in the Supreme Court. So more to come on that. And last thing I'll say on this, because I do think it's remarkable, is that on the very third page of the government's motion for this, you know, relief in the U.S. supreme Court, they are complaining about universal injunctions and they say district courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden administration. Now, if that is supposed to be a sort of persuasive argument that there's something wrong with universal injunctions rather than an admission that so many things are blatantly unlawful that this administration has been subject to so many injunctions, like, to me, I'm like, why would you even put that in there? Because doesn't it just scream out that judges across the country have said this must be stopped and it must be stopped nationwide. MARY A fitting ending.
- [62:00]
Andrew Weissmann
Fitting ending. So to all of our listeners, thank you so much for staying engaged, launched at this really important time. So thank you so much for listening. And remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. And you'll also get subscriber only bonus content like the latest premium episode of the Blueprint with Jen Psaki. And she has as her guest the DNC chair, Carol Martin.
- [62:34]
Mary McCord
To send us a question. You can leave us a voicemail at 917-342-2934 or you can email us at mainjusticequestionsbcuni.com this podcast is produced by Vicki Virgolina. Our associate producer is Jamaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is is the executive producer for MSNBC Audio.
- [63:02]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and follow the series.
- [63:23]
Alex Wagner
It's President Trump's first 100 days and MSNBC's Alex Wagner will be covering it all from the front lines. What issue matters to you the most? Join her as she travels the country to talk to the people at the center of the President's policies and promises.
- [63:38]
Mary McCord
Do you think now that he's pardoned everybody he can count on this group of people again?
- [63:42]
Alex Wagner
Search for Trumpland with Alex Wagner wherever you're listening and follow subscribe to MSNBC Premium on Apple Podcasts to listen ad free.