Andrew Weissmann (2:36)

So, yes, that is a great. And also, you know, one thing that's really interesting is there's just so much more early voting.

Mary McCord (2:41)

Yes.

Andrew Weissmann (2:42)

That is happening everywhere. It's nice to see that, you know, being more and more a part of the American system of encouraging voting no matter who you're voting for.

Mary McCord (2:51)

That's Right.

Andrew Weissmann (2:52)

Mary, Having said that, we're going to talk first about New York, and then we're going to talk about a piece that you and I wrote for the New York Times Opinion page, and it really relates to one of the topics for today. So what's on our dance card?

Mary McCord (3:08)

Yeah, before I get to topics, to the extent that you are hearing a buzzing noise that sounds like a chainsaw, you are not mistaken, that's not my cold. That's right. And no, it is not, you know, still Halloween with Texas Chainsaw Massacre themes. This is tree trimming in the trees across the street. And I hope it won't be too disruptive, but that is what that noise is. Okay. So our piece is really about how the Supreme Court's immunity decision from 2024 has, in our view, yours and mine, opened the door to emboldened paved the way for the types of revenge prosecutions that we have seen thus far, including the prosecutions of the former FBI Director James Comey and New York Attorney General Letitia James, that published online this weekend. I believe it's in the actual print yesterday. And meanwhile, yesterday we had a flurry of new filings in the Comey and James cases and also some filings last week in the Comey case that we'll talk about that includes the government's response to Mr. Comey's vindictive and selective prosecution motion to dismiss and as well as the government's response to both Mr. Comey and Ms. James's motions to dismiss the case because the quote, unquote, Interim U.S. attorney in EDVA, Eastern District of Virginia Lindsey Halligan, was not properly appointed. And that is something where the government responded to both of those motions in one response. There's also some interesting, an interesting motion filed by Mr. Comey himself that relates to something you raised way back when the indictment first was returned, Andrew, and that is this motion to dismiss on the grounds of literal truth of the statement that he is alleged to have made as a false statement to the Senate.

Andrew Weissmann (4:56)

But I just want to point something out, which is that in the discussion, if you remember, Mary, you also pointed out, you said that you see a real issue here with respect to something called materiality.

Mary McCord (5:08)

That's right.

Andrew Weissmann (5:08)

That to have a false statement, the government has to prove that it's material to the matter, that it's under investigation. And as it can't be. What was your favorite color?

Mary McCord (5:18)

Right.

Andrew Weissmann (5:18)

Oh, it was blue. When it turns out it was green, it's like, who the hell cares?

Mary McCord (5:22)

Yeah.

Andrew Weissmann (5:22)

And you had said you have a concern about this being potentially not material. And there was information in the Comey filing that when I read it, I thought, oh, Mary's going to read this and be like and think, you know what, this is some fodder. Because they basically say there was a very limited what they were told, at least in advance of the testimony that he gave, that Comey was told that the investigation and the testimony was only going to be about certain topics. And it does not seem like his answer was material to those topics. So I'm going to be really interested to see how that plays out. But that's just to give you credit too, I have to say. This is actually, if you are in this world, these are not the most unusual things to say. James Comey is represented by an incredible team of experienced lawyers who are also longtime federal prosecutors. So it's not surprising that they are raising the kinds of issues that we are addressing. Yeah, this is something that experienced people would all be flagging as an issue.

Mary McCord (6:26)

That's right. That's right. Okay. So we have spent a long time already on our first topic without ever actually getting to it. We will also talk about isn't that.

Andrew Weissmann (6:34)

What we always do?

Mary McCord (6:35)

Yes, we do. We do. Because, you know, it, it's so there's so much to say and it's hard to just narrow it down to control ourselves. Yeah, it's hard to control ourselves. That's actually the, the actual truth. Then we will move on to give as this is pretty much a weekly feature now, a National Guard update, particularly with respect to an interesting supplemental briefing order by the Supreme Court last week. And we'll talk about that. Yes. And what that might mean. And we will also talk about how, you know, related to that because we know that these deployments have been primarily based on protests against ICE raids, allegedly making ICE unable to do its job, to do enforcement of federal law. And that has been the rationale for these deployments of the National Guard. And we will talk about some of the other tools that the Department of Justice is using now to prosecute protesters. And, and I think it's a little bit interesting, particularly one of the cases, how they have characterized that case. And then we will it has been a big flurry of activity, fast moving litigation over what was the administration had announced would be the end or you know, a at least a pause in snap payments. Supplemental Nutrition Assistance program payments begin November 1st due to the shutdown that has already gone through hearings in two different courts and also a response by the government. Those snap payments, at least partial Payments will be made. And we'll talk a little bit about how that all came about because it's an interesting, another interesting situation where the administration has interpreted authorities very, very differently than they've historically been interpreted and certainly very differently than the courts ruling on them interpreted them. So should we dive in?

Andrew Weissmann (8:17)

Yes. So let's start with giving an overview of what we wrote about, because that'll lead us right into the Comey litigation that you talked about. And so we start with a key part of the immunity decision with Chief Justice Roberts justifying, in part the rationale for why there needed to be strong presidential immunity. One of the things that we focused on was the Chief justice saying that one of the reasons that you need strong immunity is because they were concerned about tit for tat prosecutions, where one President then goes after the prior president and it goes on and on and on like that. And you have this cycle of factionalism. And we thought it was useful in light of the Comey and James prosecutions, to say not only was that argument something that ignored 250 years of history prior to the decision, because presidents had almost uniformly accept, maybe President Nixon thought that there was no immunity, although I.

Mary McCord (9:29)

Think he got there, yeah, because he accepted a pardon. And you don't need to accept a pardon if you think that you're immune.

Andrew Weissmann (9:37)

So with his exception, everyone had thought that there was no criminal immunity and there'd not been tit for tat prosecution. So it ignored the history. But we thought it was useful to point out that the facts subsequent to the decision showed the folly of that kind of reasoning. And in fact, not only that it was problematic from a both historical and going forward basis, but it actually has emboldened the President because he does not have to worry about potential criminal liability. In other words, the court gave him absolute immunity in connection with his conversations with the Department of Justice because one of the key parts of the decision was them saying that allegations that the President wanted his Attorney General or acting Attorney General to engage in a fraudulent investigation, a sham investigation, those into election. Right, right. We're absolutely immune. And our point was that that meant that you have sort of a, what I call a sort of, what was the way to phrase it? There was an asymmetry, yes, between absolute immunity for a President in those circumstances, but there actually isn't absolute immunity for the targets. In other words, one of the hypotheticals I came up with, and I was talking to you, Mary, let's imagine that the President said, I'd like you, Pam Bondi, to open a tax investigation into former President Biden. Well, that could happen. It could be totally bogus. It could be something that. Let's assume again, hypothetically, that there's nothing to it. The current president's absolutely immune, but the former President wouldn't be because it wouldn't be based on anything involving his official conduct. This is a long, long way of saying that the reasoning was belied by everything that's happened since then.

Mary McCord (11:31)

That's right. And that part that you focused on, Andrew, is key here, because there was a lot of other things that were said in the immunity decision about unofficial acts and presumptive immunity for official acts. But the absolute immunity the court declared, the majority declared, was for core constitutional powers of the President. And I say that core constitutional powers because we are going to see that PHRA used in the government's response to Mr. Comey's motion to dismiss on the grounds of vindictive and selective prosecution. And we're seeing that coming up in other places as well. That is where the Supreme Court defined core power so expansively that it says because the executive branch has the exclusive authority and absolute discretion to decide which crimes to investigate and prosecute, the President, because he's the head of that branch, must be criminally immune from requesting investigations, even when they are shams, as you said, or, and this is a direct quote, proposed for an improper purpose. And that's really carte blanche to direct your Department of Justice to investigate anybody you want, including your political enemies. And, you know, one of the things I've had people writing to me to comment on since this published, is that what we're seeing now with these political prosecutions, or at least in my opinion, I believe yours, these are revenge prosecutions, is harken back to 2016, when there was outrage, when then Attorney General Loretta lynch literally had a sort of a chance encounter on an airport tarmac with former President Bill Clinton, and they exchanged pleasantries, and that was just absolutely panned as being inappropriate because the Attorney General at that time, Loretta lynch, was, of course, the head of the Department of Justice, which was at the time investigating Hillary Clinton's use of a private email server. And that just was met with total outrage. Well, that is just small potatoes, right, compared to the kind of thing that we are. We are seeing now.

Andrew Weissmann (13:31)

So, yeah, that is maybe a good segue to the Comey motions. And so maybe the first thing to do is to talk about something that we have addressed, but we now have the response, which is that James Comey had made a motion that he said the case should be dismissed for vindictive or selective prosecution. And now the government has responded to that. So that's one of the set of motions that's before the court. There's slightly different legal aspects to vindictive versus selective prosecution, but maybe just big picture. When the Trump immunity decision came out, I remember thinking to myself, this is going to put a lot of tension on the whole body of law of selective and vindictive prosecution, because this is an area where the court steps in and says, the government does not have a right to. To bring this case. But one of the big theories of the absolute immunity that we wrote about was that this is an area that is completely confided by the Constitution, solely and exclusively exclusive and preclusive jurisdiction given to the President of the United States. So James Comey has to argue that although the President may enjoy absolute immunity in terms of his conduct, that doesn't mean that the court doesn't have the ability to say, you cannot violate a defendant's rights. In other words, you're looking at it from a different perspective. Who can be prosecuted? That's immunity for the President versus what can happen to the individual defendant if they can show that it's vindictive or selective. But you can see the tension between those two parts of the law now.

Mary McCord (15:18)

And I think, frankly, the government's sort of some sentences from its introductory paragraph of its opposition to James Comey's motion sort of shows this tension. I mean, first, they kind of, I think, are trying to be a little provocative by saying. Through a mix of news reports, social media posts, and speculation, the defendant weaves a tale of what he calls glaring constitutional violations that resulted in his indictment for making a false statement to Congress and obstructing a congressional investigation. Government then argues the Supreme Court has imposed, and this is what you were referring to, a demanding standard on defendants arguing that a prosecutor brought in an indictment for reasons forbidden by the Constitution. And here we go. Let's roll out the immunity case. Such claims ask courts to exercise judicial power over a special province of the executive and risk unnecessarily impairing the performance of a core executive constitutional function. In other words, courts. You shouldn't have anything to do with the way the Department of Justice decides who to prosecute and how to prosecute, because that is a core executive function of. By the Constitution.

Andrew Weissmann (16:25)

Right, that is. Back off. Now, I will say that. Let's just do selective prosecution for a moment, because in some ways, selective prosecution is going to be the harder argument. For James Comey to win. And that's because the law requires, even if you can show that you were selected improperly, that, for instance, you were targeted and prosecuted because of your First Amendment rights or because you took a criminal appeal and won, even if you can show that, you have to be able to show that similarly situated people are not prosecuted. And that's a very, very hard standard to meet, especially when the crime here is making a false statement to Congress, which, as we talked about, is something that is charged. You know, obviously it's not charged every single day of the week because there aren't that many people doing it. But it's not that. That's an unusual charge. And one of the arguments that the government makes, which I thought was a perfectly. Let's just say it's not off limits, it's a sort of like bad faith argument, was that when the cases that James Comey referred to as where there were people who were not prosecuted, who seemingly lied to Congress, the government pointed out that the difference was that in this case, James Comey was the sitting FBI director at the time of the alleged statements, and the government might have a particular interest in prosecuting that case versus other cases. So I just think that's a harder case than vindictive prosecution, and that's where the ball game, I think, will be.

Mary McCord (18:05)

Yeah. Although it is interesting because I really do think that the government here tries to slice and dice things and basically says there's no proof that Lindsey Halligan, who was actually the prosecutor, is being vindictive. And you really can't look at Donald Trump because the question of intensive prosecution is, was the prosecutor being vindictive? And I'm like, that is just a little too cute. Right?

Andrew Weissmann (18:28)

Yes, I agree on that. I mean, there are certain parts of this that were just outrageous. Just stop pretending that Lindsay Halligan wasn't doing his bidding. That there's not a moment in this brief where they talk about the fact that the former U.S. attorney quit over this and or was fired over it. If you take the president's view and that the brief itself is signed by two North Carolina AUSAs, because there wasn't a single career person in the Eastern District of Virginia who was willing to sign it. So to pretend that this is business as usual was the weakest part of the brief. That's not to say the judge's job, though, has to be sort of to ignore the bad parts, but to take seriously the parts that are more meritorious.

Mary McCord (19:13)

That's right.

Andrew Weissmann (19:13)

But I agree with you. There were parts of this that were just. Come on.

Mary McCord (19:17)

Well, and one of the other parts that I have to just mention is that they go through, because a lot of Mr. Comey's motion just talks about the incessant tweets and social media posts and public statements, you know, vilifying Mr. Comey for years. And basically the response here by the government is these were not like, personal, you know, revenge or vendetta or vindictiveness. This was the president calling for him to be prosecuted for real crimes for years. And they even say that, that, you know, to my mind, sort of smoking gun, direct message to Pam Bondi, the attorney General, that was later taken down, but it went out on Truth Social, and everyone was able to read it. That started with Pam and essentially directed her, demanded that justice be served and that she work with Lindsey Halligan on cases involving Mr. Comey and Ms. James. You know, they basically say, no, that's not showing any vindictiveness. That is saying he's committed real crimes and it's outraged that he wouldn't be prosecuted. And it's kind of like, okay, we can put whatever label on these things you want to put on them, but these are things that the judge is going to be able to read, and he's going to be able to see the context. And I will note that a lot have former prosecutors and government officials from both parties have come out with amicus briefs in support of Mr. Comey's motion that, you know, vindictive prosecution has no place in our system of justice. And in full disclosure, I did sign one of these amicus briefs that was put together on behalf of a bunch of former Department of Justice officials. So, you know, there are real issues here to be determined, and we will see. Mr. Comey will get a chance to file a reply brief.

Andrew Weissmann (20:59)

Can I just flag one thing for our listeners? The merits of the case. For the first time, the government laid out some of the proof, and they laid out some of what they say are communications between Mr. Richmond, who is a special attorney, and is the person, allegedly, it seems, who would have been the person who leaked information at the direction of James Comey to the newspapers. And so they. They have a lot of that back and forth. And let me just give a tip.

Mary McCord (21:30)

They leave out one important fact, don't they?

Andrew Weissmann (21:32)

Yes. Keep your eye on when Dan Richerman was an FBI employee.

Mary McCord (21:38)

Special. Government employee.

Andrew Weissmann (21:40)

Special. Exactly. Because the only communications that are at issue are ones that would happen while he was an employee, because that was the question to James Comey. It was about what he had done. And has he ever directed somebody at the FBI to be that sort of.

Mary McCord (21:59)

Cut out, be an anonymous source to reporters?

Andrew Weissmann (22:02)

Exactly.

Mary McCord (22:03)

That was the question asked in the Senate, to be clear, during the hearing that we're talking about.

Andrew Weissmann (22:07)

And so you're only looking at that period. And the brief goes on and on about stuff that happened before that period. And it also talks about some proof and I think actually some like at least one thing that caught my eye. But it was after Dan Richmond was longer at the FBI. And so one of the things if you look at the government's brief is it does show the thinness of the proof, at least as set forth in this brief. There could be more that during the relevant time period, it may be that James Comey doesn't look all that good in terms of what he was doing before that time period or even after that period. But that is not what a criminal.

Mary McCord (22:51)

Case is about because the question asked him was specific to did he direct or authorize an FBI employee to be an anonymous source? So if he was not an FBI employee at the time, then that's not going to be a false statement. I just want to go on to the government's response to the motions to dismiss both the Comey indictment and the James indictment because Lindsey Allegan was not properly appointed.

Andrew Weissmann (23:15)

Should we take a quick break and then come back and do that?

Mary McCord (23:18)

Sure.

Andrew Weissmann (23:19)

Foreign.

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Andrew Weissmann (24:47)

Mary so where we cut off was James Comey is made the same kind of argument that we've seen across the nation in various ways about the Trump administration getting around the sort of appointment process and this and Senate approval needing being needed and undermining the idea that the court is supposed to after 120 days have the authority. So what did they argue here?

Mary McCord (25:13)

Let me just back up just a minute because in the Eastern District of Virginia, Eric Siebert had been the interim U.S. attorney appointed by Donald Trump, who by statute you can serve for 120 days and then the judges of the district court can extend that. The judges of the district court in the Eastern District of Virginia had extended that. And then of course he resigned and or was fired by Donald Trump. Both of those things somewhat simultaneously when he refused to bring seek an indictment of Mr. Comey or Ms. James. It was at that point that the president appointed Lindsey Halligan and she in a matter of days, barely enough time to get her seat warm in her office, had gone in and sought and obtained this indictment of Mr. Comey that we're talking about and there and then thereafter obtained an indictment indictment of Letitia James. The issue here is can she be an interim U.S. attorney when the 120 days that the statute allows for an interim U.S. attorney has passed? The government is arguing in its brief that the statute does not say you can only have one period of 120 days. It just, you know, just because district court judges can come in at the 120 days and extend that, that doesn't mean that a president can't just do serial appointments for 120 days. So this is a statutory interpretation argument and I'm not surprised that they're making it. There's been a number of judges across the country ruling on challenges to other appointments of interim U.S. attorneys that they believe violated the statute. So all of these things will get hashed out. But what is really interesting to me about this is the belt and suspenders.

Andrew Weissmann (26:55)

Exactly.

Mary McCord (26:56)

Response of the government. So they're like, they make their arguments that she could be appointed. You know, the 120 days can be re upped and re upped and re upped and put aside from it, we have a federal Vacancies Reform act that is supposed to kick in at some point here. So it really doesn't seem right that a person could be in a position as an interim U.S. attorney for, you know, multiple periods of 120 days when it is a position that requires a presidential appointment and a Senate confirmation. It would just be a complete end run around that. But putting that all of aside, the belt and suspenders approach, is that okay? The government says even if we're wrong about that, even if there's only 120 day appointment, we now have had the Attorney General of the United States, Pamela Bondi, retroactively appointing Ms. Halligan to the additional position of special attorney as of September 22, 2025, which was the date that she was appointed the interim attorney, I believe, and thereby ratify her appointment as an attorney of the Department of Justice from that day going forward. As a special attorney, Ms. Halligan has authority to conduct in the Eastern District of Virginia any kind of legal proceedings, civil or criminal, including grand jury proceedings and proceedings before US Magistrates and judges. Then they go on. And in the alternative, should a court, this is literally the words should a court conclude that Ms. Halligan's authority is a special attorney is limited to particular matters. I hereby delegate to Ms. Halligan's authority as special attorney to conduct and supervise the prosecutions in United States v. Comey and United States v. James. And then as a third fallback alternative, she says, based on my own review of grand jury proceedings in both of those cases, I hereby exercise the authority vested in the Attorney General by law to ratify Ms. Halligan's actions before the grand jury and her signature on the indictments returned by the grand jury in each case. So they're basically offering three fallbacks if she was not legit. I'm appointing her as a special attorney that can do anything. And if that's not legit, I'm appointing her as a special attorney just for the Comey and James prosecutions. And if that's not good enough, I'm ratifying the indictment in my authority as the Attorney General of the United States. So it's all fine.

Andrew Weissmann (29:10)

So one of the issues, the reason that they are making all of those arguments is the statute of limitations, right? Because if Lindsey Halligan were to be knocked out, and the court would say, but you can just go back and indict with an official person, somebody who is actually qualified. This is a technical issue. I don't mean technical in a diminutive sense, but you could go back with a legitimate U.S. attorney and indictment, the court would be confronted with, well, wait a second, it's now past the statute of limitations. And the question will be can that sort of relate back? In other words, if the court rules that the Lindsey Halligan indictment is improper, does it still toll the statute of limitations such that a new indictment sort of relates back? And I actually think that's a fascinating, complicated issue, but this is one where the Department of Justice is trying to avoid that issue by saying there's a million ways to Sunday up one side and down the other why we can ratify after the fact what happened. I find that a bit outrageous, but we'll see what the court does with that. Because to me, it's a question of who was in the grand jury instructing this and bringing the case. And if that was improper at the time, I don't see how somebody now saying, I would do it. It's like, well, go ahead, do it now. But you were not there at the time. And so I don't see how you can after the fact, say that. I can think of other areas of the law where that would not work at all. You know, in the Fourth Amendment area, if you go in and do a search, the court doesn't get to say, oh, you know what? But now I see, did you later.

Mary McCord (30:44)

Get probable cause and then you could go back and retroactively. No, that's not how that works.

Andrew Weissmann (30:49)

Yeah.

Mary McCord (30:50)

So there's a lot here that's going to be ruled upon. And in fact, tomorrow, November 5th, I believe the judge, it is not the judge that has the criminal case that will be ruling on this. It's a judge from a different district brought in to rule on the motion with respect to Ms. Halligan's appointment. So we will learn more, I guess, after that hearing and of course, after that judge rules. But before we move on to National Guard, things somewhat related to this, just in terms of the apparent real I guess I can't say this one is controlled by the president over the Department of Justice because it's not exactly clear where this directive came from. But the revisionist history that this Department of Justice is engaging in was on full display last week when two assistant United States attorneys in my former office, the office for the District of Columbia, were suspended after they included in a sentencing memo a sentencing memo that was about a defendant's conviction for a bomb hoax here in Washington, D.C. that also involved going through neighborhoods, including former President Obama's neighborhood, and caused the evacuation of neighborhoods because of this bomb threat. He was being sentenced for that. And in the sentencing memo that These two prosecutors filed just when they came into the factual background in order to set up how this defendant, his name is Toronto, had engaged in conspiracy theories that led to this bomb hoax. They wrote this sentence. On January 6, 2021, thousands of people comprising a mob of rioters attacked the US Capitol while a joint session of Congress met to certify the results of the 2020 presidential election. Toronto was accused of participating in the riot in Washington D.C. by entering the U.S. capitol building. After the riot, Toronto returned to his home in the state of Washington where he promoted conspiracy theories about the events of January6. It then goes on to say following from that, he returned to Washington in 2023 and this is when he engaged in this bomb hoax and he livestreamed himself driving through neighborhoods threatening to detonate this bomb.

Andrew Weissmann (32:55)

There's also a part that was deleted because the career people had made reference to the fact that the president, that Donald Trump had tweeted out what appeared to be the address of President Obama. Right. And then that was retweeted by or re sent out by the defendant who is threatening various people and engaged in all sorts of criminal acts that were ultimately found by the judge. All of that gets deleted so that there's no reference.

Mary McCord (33:33)

They got suspended after they wrote that. But then what happens is what you've now jumped us to, which is that when the sentencing takes place, in comes another sentencing memo. And the portion I just read is gone.

Andrew Weissmann (33:46)

The other part too, it's like they just delete it. And by the way, one of the things that the judge says in sentencing is I don't know where you get the authority to have tried to seal the priority. The reason we know about it is because before it seemed to be taken down by the Department of Justice and sealed, various reporters had already had seen it, so they posted it. But the judge is like, I don't know where you get the authority to do that. If you are going to be making an application to seal, you need to make it to me. It's my authority. And then because the two career people were in the back of the courtroom, not representing the government anymore, but in the back, Judge Nichols, respected district court judge, as you know, Mary, pointed out that he thought they had done an excellent professional job in the case, which was really, to me is so remarkable that we're seeing that kind of thing. And there was, just to be clear, the government took the same position in the first memo and the second memo as to what this sentence should be, but they sanitized it of facts that were not terribly outlandish or outrageous. There wasn't a lot of hyperbole. They called the people who participated on January 6th comprised. They didn't say it was exclusive, that it comprised rioters. I mean, that seems to be beyond Cavill. And so the idea that you have to sanitize history, what I would say is one bad for the Department of Justice. Good for Judge Nichols to say, I don't know where you get off essentially thinking that the court's docket is in your uniform lateral control.

Mary McCord (35:24)

And it was the criminal division chief who had been brought into that U.S. attorney's office from another state. So not somebody with longtime experience in the District of Columbia who is one of the two who came in as the substitute prosecutors who hadn't been involved otherwise. Right. Directly in the prosecution of this case and came in and presented that new sentencing memorandum. So the U.S. attorney, Jeanine Pirro, refuses to comment on internal matters, but it's a really bad sign when you get suspended for putting a truthful statement. Statement in a sentencing memo because apparently we don't know for sure, but apparently that was offensive to certain powers that be.

Andrew Weissmann (36:02)

So why don't we, in our show notes, we'll put both of those, the initial one and the subsequent one. And it's really in the fact section.

Mary McCord (36:10)

Yes.

Andrew Weissmann (36:11)

That you can compare the two. It's an easy read. And that way you will have all of the data that we're talking about and you can see what's happening here. It's just a great example that we've seen in so many other contexts of whitewashing history and also retributive action for those people who just want to speak truth, not even truth to power, just speak the truth to the court and.

Mary McCord (36:37)

We will see what happens to the two prosecutors who were suspended.

Andrew Weissmann (36:41)

So, National Guard, we have a very big day. I think it's tomorrow in the Supreme Court. But before we do that, what is the question, Mary, that the Supreme Court asked for additional briefing on? And I feel really good asking you because part of your day job is at Georgetown at the law school there, and one of your colleagues had written a amicus brief. And it seems to be quite influential because it was on the very issue that the Supreme Court then said, wait, we need additional briefing from the parties on this issue.

Mary McCord (37:19)

And with that cliffhanger, I will tell you what they asked for briefing on after the break.

Jeff Lewis (37:34)

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Andrew Weissmann (38:53)

Welcome back. Mary. What's the answer?

Mary McCord (38:56)

I guess this needs a slight bit of preface, though, just to say why this is in the Supreme Court to the extent that people need to remember. So in the attempted federalization of deployment of the National Guard in Illinois, particularly in Chicago and around Broadview, the district court judge had enjoined that finding that it did not meet the predicates of the statute, Title 10, Section 12, 406. There was no rebellion and the President was not unable with the regular forces to execute the laws.

Andrew Weissmann (39:24)

Can you say that again? Because that's the key language.

Mary McCord (39:27)

It is. She found that there was no rebellion under Section two and under Section three that she found it was not the case that the President was unable with the regular forces to execute a US Law. Federal law.

Andrew Weissmann (39:39)

Unable with regular forces.

Mary McCord (39:41)

Regular forces, okay? Because that's one of the predicate facts for the statute. Unable with the regular forces to execute the laws of the United States. Okay. And people are like, okay, I got it, I got it. The 7th Circuit, I will say she did say, I think regular forces means the military, not federal civilian law enforcement. The U.S. government's position is regular forces means federal civilian law enforcement says they can't possibly protect ICE and Customs and Border Patrol. That's why we need The National Guard. She had said that the U.S. government went to the 7th Circuit, asked for a stay of her injunction. The 7th Circuit denied it. They said, again, you haven't shown it's a rebellion. Haven't shown that the President is unable with the regular forces to execute the laws of the United States. And they didn't decide what regular forces meant. So we get to the Supreme Court and this is going to be almost two and a half weeks ago at this point, two Fridays ago, the US Government takes that up to the Supreme Court. They asked for an immediate administrative stay while they briefed the full stay. Again, they wanted a stay of the district court's injunction. Justice Barrett didn't give them the administrative stay. She said, we'll expedite briefing on the actual stay. Those briefs were filed. And after those briefs were filed, the court put out an order last Wednesday saying the parties are directed to file supplemental letter briefs addressing the following question. Whether the term regular forces refers to the regular forces of the United States military, and if so, how that interpretation affects the operation of Title 10, U.S. code Section 124063. First briefs due next Monday, November 10th. Responsive briefs due at the Monday after that, November 17th. And all the while the deployment of the National Guard in Illinois is staged. Now, you may be saying, okay, why is this such a big deal? Well, this could provide the Supreme Court with an off ramp, a way of denying the stay without getting to some of the more difficult issues, namely how much discretion should the courts afford to the President's determination about whether he's able or unable with regular forces to execute federal law. Because if regular forces means the military, and that's a straight up statutory interpretation things, then that means the military he hasn't even attempted to deploy in these places, and that would mean he couldn't use the National Guard. And like you said, my colleague at Georgetown, Professor Marty Lederman, filed an amicus brief in the Supreme Court making exactly this argument. Again, the district court judge had also raised it in Illinois. But Professor Lederman's got like 30 pages on this, right? The history. And we talked about it a few weeks ago, too. And I said, I think that judge is right, because this is a term used in Title 10. Title 10 of the US Code is all about the regular military. And what Professor Lederman does is he goes through all the different places where regular forces means regular military.

Andrew Weissmann (42:47)

Right. And the idea being that if the regular military, if you've tried the regular military that is at your disposal as President of the United States, and you're unable to control the situation using regular military. Congress is saying, then you can use this additional force and can use this federalized National Guard. But to me, it's sort of a natural reading.

Mary McCord (43:10)

Although, you know, a lot of people think, well, that's kind of weird. Why would we want to use the military domestically before the National Guard? And I think part of that is the history of the statute. And when you say at the President's disposal to use the military, we should come back to that. Because one thing this raises is, you know, what would be the circumstances where the President could use the regular military. But in this particular statute, the reason it makes sense is because this was a statute that was enacted when basically the National Guard was not yet the National Guard. It was just a bunch of state militias. They weren't properly trained, they weren't properly disciplined. They were kind of useless to the defense of the United States. And so this provision was part of a bigger congressional effort, through what was called the Dick act, to get a properly trained system of state militias, that is the National Guard, that could actually be a supplementary force to the US Military when they're needed, both to protect the homeland and for missions overseas in the US national interest. So it makes sense in that context that this is like, if you think the military can't do it on their own, we'll use this National Guard that we have now created and created the training requirements and all of those type of things. So it makes a little more sense when you think about it this way. But one of the concerns is if the Supreme Court says regular forces means the military, aren't you just basically giving President Trump sort of impetus to say, now I'm going to invoke the Insurrection Act?

Andrew Weissmann (44:40)

Leaving aside that we'll get to this sort of Insurrection act issue actually sooner rather than later in terms of the President trying to invoke it. I just wanted to go back to something you said to make sure people understand why this would be a very useful off ramp. If you'll remember, the district judge here, just like the district judge in Portland, both basically said, we don't believe the President. I mean, in politer terms. But they basically were saying that, remember, this is the untethered to the facts statement that was made by Judge Immergut. So you have these district judges who have, especially now, Judge Immergut, who's held a trial and heard from witnesses and looked at evidence, saying that the facts just don't support. And they're not even in a colorful way, what the President is trying to do. And rather than weigh in on that, the Supreme Court doesn't have to sort of go down that road. They could just say, you know what, not regular forces, it's not regular forces here, that it the very least it either is exclusively the military or at least includes the military. But either one, if it includes or is exclusive to the military, that hasn't been tried yet. So there's no way that the statute applies here. And so for a variety of reasons, I actually thought Marty's brief was excellent. I can't say I'm an historian in this area, but it was like a really good point. And it clearly tells you that there isn't a majority, at least as of yet. There isn't sort of a solid majority behind the government's view that this isn't even reviewable by the court. There isn't a solid majority behind the idea that this is a rebellion. In other words, you wouldn't really have to ask this issue if there was already a solid majority. Now obviously things can change as it goes forward. Just because they asked for a briefing doesn't tell you for sure which way they will go. But it is a good sign that it means that there at least are five justices who are thinking this might be a ripe relevant issue. And obviously we'll see which way it goes.

Mary McCord (46:43)

Yep.

Andrew Weissmann (46:43)

Mary, should we talk a little bit just about what Judge Amargut did? Because she actually had a multi day trial and has actually issued a preliminary injunction in her case. What did she do there? And there was a line I bet you we may have, since we all have our tabs open, we may actually have underlined the same line in her preliminary factual findings.

Mary McCord (47:04)

I don't know if we highlighted the same one or not. I've moved on to a different tab. But, but she said you can do something where you have the trial and the hearing on the preliminary injunction together at the same time. And so she said I'm issuing the preliminary injunction based what was presented to me, but I need to spend more time going through the 750 exhibits and everything I heard during this trial before I actually rule as a final judgment. And so she extended her preliminary injunction until this Friday, I think at 5pm and then that's when she's going to rule. But you tell me what you highlighted and I'll go back to the open tab and see if it's the same thing as mine.

Andrew Weissmann (47:44)

So on page seven, what the judge does to justify what's happening is she looks to what was happening on the ground. And she says during the trial, this is the quote as to what she said happened. The evidence showed that the Deputy Regional director of the FPS region, that's the Federal Protected Services region, that the deputy director of the Federal Protective Services region responsible for protecting the Portland ICE facility was surprised to learn that the National Guard had been called out to deploy at the ICE building. The Deputy Regional Director testified that neither he nor the regional director of the FPS region made that request. Her point being that people who are on the ground did not think that they needed additional help. The prong that we've been talking about unable with regular forces, even if it's the regular forces, includes the Federal Protective Services. The Federal Protective Services seem fully in control of the situation without the need for this presidential reinforcement, which was completely.

Mary McCord (48:53)

Contrary to what the government argued that the Federal Protective Services was maxed out. And this is where we also had a misrepresentation of facts to the court when this was in the ninth Circuit for argument exactly about how they had pretty much exhausted the hundred plus Federal Protective Service officers by sending them into Portland. And come to find out, I think there'd never been more than 30 there. So that was another whole kerfuffle.

Andrew Weissmann (49:19)

And Mary, I suspect when the Judge Immerget issues her decision, which she said she will issue by Friday, as you noted, I suspect we will learn more from her because that has to have come up at the trial that she held.

Mary McCord (49:30)

Yes, oh yes, 100%. I think that's right. I will also note that also since we spoke last week, the ninth Circuit, you know, we talked last week about how they had declined to take en banc review of the panel that granted a stay of Judge Breyer's injunction in la. But in Portland, after a panel that we talked about last week also granted a stay, the full court then vacated that stay and is taking that on bonk. So we have things in a lot of courts right now. We've got merits cases in the 9th Circuit, we've got the stay en banc in the 9th Circuit and we've got, of course, this pending stay motion in the U.S. supreme Court and whatever they say would then, you know, impact what happens in the other cases. Of course, last thing I want to talk about that's related to this subject is an indictment that was returned actually on October 15th in Texas in the Northern District, Fort Worth Division. The reason I want to talk about it is I have been getting lots and lots of calls from reporters about this because the way that this has gotten portrayed in Some places in the media and on social media has been that this was the first indictment of antifa as a domestic terrorist organization. And you know, when we talked about the President's purported designation of antifa domestic terrorist organization and then the NSPM 7, the Domestic Terrorism Presidential memorandum that tells the federal government to use all of your sources to go after domestic terrorists. But he kind of paints terrorism as being one sided. This indictment came out. This is not a prosecution of a domestic terrorist organization. There is no legal significance to that designation of a domestic terrorist organization. This is a prosecution of a conspiracy between people in Texas who are alleged to have committed an attack against an ICE facility. And by the allegations this is serious. This was actually, you know, shootings. These are things that I'm not criticizing that there's an indictment that's been brought assuming that the allegations are true, but the way the government charged it is. It described this attack as being and this conspiracy as being undertaken by a North Texas anti facile that it then goes on to describe as antifez. This militant enterprise made up of networks of individuals basically across the country and increasingly targeting ICE operations. That is just the government's way of describing this conspiracy by saying some of these people are part of an antifa cell. Whether they are or they aren't, I'm not sure. But I think because Antifa was used in the charging documents, people, you know, including even reporters sort of leapt to the conclusion that this was this first charge of antifa as a domestic terrorist organization. It's a charge of a conspiracy to commit crimes done with an ideology to intimidate or coerce. And those are crimes that when with that ideology are crimes of terrorism. But it's material support to terrorism, not material support to a designated domestic terrorist organization which doesn't exist and certainly not material support to a foreign terrorist organization.

Andrew Weissmann (52:37)

It is not unusual for the government to have conspiracy charges and even RICO charges where they describe a particular group or entity or I used to do organized crime cases. That's a perfect example of the group might be the Genovese family. That's obviously quite organized, but a lot of times it's looser and there's a group and the government gives it a name. Usually it's the name that comports to, you know, how the group self identifies. So here it'll be interesting to see to your point sort of just how they even. Just what exactly does it mean to be an antifa cell? All of that is somewhat of embroidery because the real issue is what's the Crime here, not sort of all these labels.

Mary McCord (53:18)

Right.

Andrew Weissmann (53:19)

And as I agree with you, the alleged crimes are serious. And so if they can prove it, so be it, and good for them and they should be charged and they should go forward. That remains to be seen. Obviously, these are allegations. They're innocent until proven guilty beyond a reasonable doubt by a jury. So we'll see where that goes. Should we talk for just briefly about the tariff case and the snap decision?

Mary McCord (53:42)

Well, tariff, I think all we can.

Andrew Weissmann (53:43)

Do is say stay tuned.

Mary McCord (53:44)

Being argued tomorrow. We will recap it next week. Because, you know, this is going to be super interesting, right? Because this is about, again, separation of powers. Congress has the power to tax, not the president. They gave him certain emergency powers which do not by their terms, including the power to tax or tariff. Yet the president relied on that emergency authority for some of these tariffs. And so that's going to be, you.

Andrew Weissmann (54:09)

Know, I think it's going to be a close case, by the way. I can see good arguments on both sides. But you know what? We'll come back to that next week. I wanted to say something about the SNAP case, which is it is a perfect example of what one of the themes that we've been hitting, which is we're here to talk about the legal issues. But just step back for a moment. Why would the government take the position like, oh, suddenly we can't congressionally do this because Congress hasn't actually allowed us to do this, which is not been a stumbling block for them in the past. In fact, the court said, yes, Congress actually has authorized you to do this. So it's just bizarre that the Trump administration was saying, oh, we really can't do this because we're looking at the congressional statutes. And by the way, the first Trump administration took a complete different opposite position.

Mary McCord (54:52)

And really, up until like a week ago, even this administration and the issue just for people is when, you know, we're in a budget shutdown and the appropriated funds for the year that is over are gone, can you use a contingency fund that was created for contingencies just like this? And that has been interpreted by prior administrations, including Trump administrations, to be able to be used just for this and in fact, mandatory that it be used for this.

Andrew Weissmann (55:18)

And SNAP is to provide food for indigent families.

Mary McCord (55:23)

Yes, that's right.

Andrew Weissmann (55:25)

This is where. Leave the legal issues aside. Why would you be doing everything in your power to figure out legal ways to provide food for indigent people? I mean, that to me is the cruelty of it is like first and Foremost before you get to the legal issues. Well, anyway, two separate judges have said you can and you must. And the government apparently is conceded and is going to do it, but only half.

Mary McCord (55:54)

They're going to use the contingency money, but they say that'll only pay for half of November. And they, that they have authority to use other funding. And the judicious cases. Right. Said look at whether you should use other funding. And they said, we're not going to use other funding. We'll use the contingency funding. That'll cover about half of the month. So we'll see if they change their view about this because obviously members of Congress are going to be hearing about this and the Department of Agriculture and the food nutrition Program, they're going to be hearing a lot about this. And this is just cruel.

Andrew Weissmann (56:26)

Right. And this is one where people's voices matter. There is half of the funding. This is food for poor people. And this is supposed to be the richest country in the world. The idea that we don't have even this safety net during a shutdown, this is where voices really should be heard. It's, it's as a matter of decency.

Mary McCord (56:44)

That's right.

Andrew Weissmann (56:45)

So, Mary, you know, this was not an episode where it's all bad news all the time. And there's a lot of interesting things. There's a lot of interesting things going on in the court with some real significant pushback. And I do think big picture, the Supreme Court, even in their additional question that they asked, shows they are practicing law, that they are interested in a legal point that for those people who thought that it's just a lost cause, it does give some reason for what I would say is cautious optimism.

Mary McCord (57:16)

That's as good a way to end as we could ever have right now.

Andrew Weissmann (57:19)

Okay, well, we need to end because our wonderful, wonderful producer is probably sitting there going like, and it's a wrap. We're done. So thank you all for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content.

Mary McCord (57:43)

This podcast is produced by Vicki Virgolina. Our associate producers are Iggy Monda and Rana Shabazzi. And our Internet is Colette Holcomb. Bob Mallory is our audio engineer. Katie Lau is our senior manager of audio production, and Aisha Turner is the executive producer for MSNBC Audio.

Andrew Weissmann (58:01)

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

Mary McCord (58:16)

Foreign.

Jeff Lewis (58:22)

Hey, this is Jeff Lewis from Radio Andy Live. And uncensored catch me talking with my friends about my latest obsessions, relationship issues and bodily ailments. With that kind of drama that seems to follow me, you never know what's going to happen.

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