Main Justice: "Cycles of Factionalism"

Date: November 5, 2025
Hosts: Andrew Weissmann & Mary McCord (MSNBC)

Episode Overview

This episode of Main Justice, hosted by veteran DOJ lawyers Andrew Weissmann and Mary McCord, dissects the ongoing legal turmoil in the wake of the Supreme Court’s 2024 presidential immunity decision and its ripple effects within the Justice Department under President Trump’s new administration. The hosts analyze the resulting “cycles of factionalism” — the growing trend of retaliatory prosecutions targeting former political adversaries, including pivotal cases against James Comey and Letitia James. They further examine critical updates on DOJ tactics, National Guard deployment litigation, domestic terrorism prosecutions, and the administration’s controversial approach to SNAP benefits during the government shutdown.

Key Discussion Points & Insights

1. Election Day Climate and Voting Rights

• [01:31] Election Context:
  • Mary McCord underscores the importance of free, fair, and intimidation-free elections.
  • Andrew highlights the notable New York mayoral race and significant gubernatorial and ballot initiatives across New Jersey, Virginia, and California.
  • Both emphasize the role of early voting and American electoral resilience.

2. Supreme Court’s Immunity Decision and Its Fallout

Summary of NYT Opinion Piece by Hosts

• [03:08]
  • Supreme Court’s 2024 Immunity Ruling:
    • The decision granted absolute immunity to the President for “core constitutional powers”—notably, the power to direct prosecutions.
    • Roberts justified this as a safeguard against “cycles of factionalism” and tit-for-tat prosecutions each time power changes hands.
    • The hosts argue this reasoning ignores historical precedent (no such cycles for 250 years) and has paradoxically incentivized exactly the kind of partisan prosecutions the Court aimed to prevent.
  • Notable Quote:
    • "Our point was that that meant you have... an asymmetry, yes, between absolute immunity for a President... but there actually isn't absolute immunity for the targets." — Andrew Weissmann [09:50]

Real-World Consequences: Revenge Prosecutions

• [10:55]

  • Comey & Letitia James Cases:

    • DOJ has initiated prosecutions against former FBI Director James Comey and NY AG Letitia James, both publicly reviled by the President.
    • The immunity ruling now shields the President’s direction but exposes former officials to prosecution.

  • Notable Moment:

    • Mary draws a sharp contrast to past norms, referencing the outrage over Loretta Lynch’s tarmac meeting with Bill Clinton in 2016:
      • “That is just small potatoes, right, compared to the kind of thing that we are seeing now.” — Mary McCord [13:29]

3. Legal Battles: Comey & James Filings

Vindictive and Selective Prosecution Motions

• [13:31]

  • James Comey’s Legal Strategy:
    • Motions to dismiss based on vindictive and selective prosecution claims.
    • Arguments that the “interim” U.S. Attorney, Lindsey Halligan, was unlawfully appointed.
    • Disputes over whether Comey’s Senate testimony was “literally true” and whether the allegedly false statement was even “material” to the investigation.
      “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.” — Andrew Weissmann [05:22]

• [15:18] Tension After the Immunity Decision:

  • The new legal landscape puts pressure on courts’ ability to police abuse of prosecutions (vindictiveness/selectivity) given presidential immunity.
  • The government’s response, per Mary:
    “You shouldn't have anything to do with the way the Department of Justice decides who to prosecute... because that is a core executive function.” — Mary McCord [15:18]

Notable Quotes

• [18:28] Andrew, on the government's narrow, technical defense:
  “Just stop pretending that Lindsay Halligan wasn't doing his bidding... To pretend that this is business as usual was the weakest part of the brief.”

• [20:59] Mary, on vindictiveness and evidence:
  “[The government argues] this was the president calling for him to be prosecuted for real crimes for years... 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 see the context.”

Amicus Briefs

• [20:59]
  • Broad support for Comey from bipartisan former Justice Department officials.
  • Mary herself is a signatory.

4. Contested DOJ Appointments

• [24:47]

  • Legality of Interim U.S. Attorney Appointment:

    • Question of whether Lindsey Halligan’s appointment by Trump circumvented statutory limits (120-day rule without Senate confirmation).
    • The government’s “belt and suspenders” defense: multiple fallback justifications for Halligan’s authority, including a retroactive special attorney appointment and AG Bondi’s ratification of indictments.

  • Notable Exchange:

    • “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.” — Andrew Weissmann [29:10]

5. Sanitizing DOJ Documents and Retaliation Against Prosecutors

• [32:55, 33:46]

  • Two career prosecutors in DC were suspended for including a routine, factual summary of the January 6 events and referencing Trump’s social media posts in a bomb hoax sentencing memo.

  • After suspension, a sanitized memo was filed without those facts. Judge Nichols publicly praised the ousted prosecutors’ professionalism.

  • Weissmann:
    “The idea that you have to sanitize history... 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 unilateral control.” [35:24]

  • McCord on “whitewashing” and retributive actions for simply speaking the truth in court.

6. National Guard Deployment Litigation: Supreme Court Update

• [38:53–46:43]

  • Supreme Court requested further briefing on the statutory meaning of “regular forces” in the context of federalizing the National Guard in Illinois.

  • Argument centers on whether “regular forces” means the military (Title 10 context) rather than federal civilian law enforcement, as the administration claims.

  • If so, Trump cannot invoke the statute unless regular military forces have already proven insufficient—which hasn’t happened.

  • Notable: Georgetown Professor Marty Lederman’s amicus brief influential in prompting the Court’s query.

  • Potential Off-Ramp:

    • The Court could resolve the issue without delving into presidential discretion or “rebellion” by statutory interpretation alone.

7. District Court Proceedings: Portland

• [47:44]
  • Judge Immergut’s detailed factual findings revealed the “regular forces” (Federal Protective Services) hadn’t even requested National Guard help — directly undermining the rationale behind the deployment.
  • She extended the injunction halting the deployment until her final ruling.

8. Domestic Terrorism and Antifa Case in Texas

• [51:33]

  • Recent Northern District of Texas indictment labeled defendants as part of a “North Texas Antifa cell.”

  • Mary clarifies: This is not a prosecution of a designated “domestic terrorist organization”—U.S. law recognizes no such designation. It is a conspiracy case with “terrorism” enhancements due to ideology, not a new legal category.

  • “The way the government charged it is… 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… this is not a prosecution of a domestic terrorist organization.” — Mary McCord [51:33]

9. SNAP Benefits Litigation and Administrative Policy

• [53:42–56:44]
  • The administration, during the government shutdown, claimed it could not use contingency funds for Supplemental Nutrition Assistance Program (SNAP) disbursements, a claim multiple judges have now rejected.
  • Andrew: “Why would you be doing everything in your power to figure out legal ways to provide food for indigent people?... it is the cruelty of it is like first and foremost before you get to the legal issues.” [55:25]
  • The government now concedes funding for half of November, but advocates and courts pressure them to resume full disbursement.

Notable Quotes & Memorable Moments

• On Supreme Court Immunity Ruling:

  • "Ignored 250 years of history prior to the decision... but it actually has emboldened the President because he does not have to worry about potential criminal liability." — Andrew Weissmann [09:29]
  • "Carte blanche to direct your Department of Justice to investigate anybody you want, including your political enemies." — Mary McCord [11:31]

• On Whitewashing DOJ Documentation:

  • "It was a bad sign when you get suspended for putting a truthful statement in a sentencing memo because apparently that was offensive to certain powers that be." — Mary McCord [35:24]
  • "Retributive action for those people who just want to speak truth... not even truth to power, just speak the truth to the court." — Andrew Weissmann [36:10]

• On SNAP Benefits:

  • "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." — Andrew Weissmann [56:26]

• On Broader Systemic Optimism:

  • "The Supreme Court, even in their additional question that they asked, shows they are practicing law, that they are interested in a legal point... it does give some reason for what I would say is cautious optimism." — Andrew Weissmann [56:45]

Timestamps for Key Segments

• Election Day & Early Voting: [01:31–02:42]
• Immunity Decision & NYT Op-Ed: [03:08–11:31]
• Comey Vindictive/Selective Prosecution: [13:31–22:07]
• DOJ “Whitewashing” Sentencing Memo: [32:55–36:37]
• National Guard/SCOTUS Briefing: [38:53–46:43]
• Portland Ruling & Findings: [47:44–49:30]
• Antifa Texas Indictment Explained: [51:33–53:19]
• SNAP Benefits Dispute: [53:42–56:44]
• Closing Thoughts/Optimism: [56:44–57:19]

Conclusion

The episode offers a sobering but clear-eyed account of DOJ’s weaponization under the Trump administration, the weakening of checks on presidential power post-immunity ruling, and legal maneuvering over pivotal constitutional and statutory questions. The hosts, drawing on their DOJ experience, highlight how legal technicalities, statutory interpretation, and institutional norms are being squeezed by political currents, while also expressing guarded hope in the integrity of the courts and the enduring importance of speaking legal truth.