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Damage to the System
01:01:52
The Supreme Court greenlights Texas’ redistricting map. Plus: a Virginia grand jury declines to re-indict Letitia James.
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Andrew Weissmann
Hello and welcome back to Main Justice. It is Tuesday morning, December 9th. I'm Andrew Weissman and I'm here with my co host Mary McCord. And Mary, once again, this is a week where it's like no chit chat. Well, first. Hello Mary.
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Mary McCord
Yes, hello, good morning. No, you're right though. We're struggling week to week because there's so many things to talk about and so it's tough to decide where we can spend time focusing to give people a little bit more than they get from the nightly news. But there's so much.
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Andrew Weissmann
Yeah. So let's just take you behind the scenes. Mary and I do try to figure out themes and at least the topic. And by the way, we then don't say you're going to talk about this and I'm going to talk about that. It's like it is. It is very. It is what it sounds like it is.
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Mary McCord
They call this improv.
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Andrew Weissmann
Yes, but this week there was so much. But anyway, we really do try and figure out what we want to cover and we're going to hit some things that did hit the news. But there are a couple things that we're going to discuss where because of the fire hose and in my view, intentional fire hose of information that have been gone a little bit sort of under the radar that we really want to highlight for you. So Mary, what is on our dance card?
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Mary McCord
Well, we will start with a emergency docket decision by the Supreme Court late last week that basically gave the go ahead to Texas's redistricting plan. And that was of course a one or two paragraph decision, but with a slightly longer concurrence by Justice Alito and a really pretty striking dissent by Justice Kagan, which Justice Sotomayor and Justice Jackson joined. And I think it's worth us spending a little time on because really the blessing of redistricting means probably it's going to get blessed all over the country, even when race seems to be the motivating factor. At least that was the case in Texas. And we'll flag a couple other things happening in the Supreme Court. Then we'll move on to the U.S. attorney's office situation. We of course had the failure to re indict Letitia James, that's the New York Attorney General, when that case along with Mr. Comey's case had been dismissed because Lindsey Halligan was not appropriately appointed as the U.S. attorney. And right after that they tried to re indict Letitia James. And apparently the grand jury said no, no go. We'll talk about what that means, how that process works. And also just yesterday, Alina Haba, who we talked at length about last week when we explained the Third Circuit's decision saying that she was not validly serving, has finally taken door three and said I resign. Now she was giving some made up job that the attorney general and deputy attorney general made up for her at the Department of Justice. But she is out of the U.S. attorney's office now and we'll talk about this. But it causes a lot of offices to be in a real state of like who's the boss and whose name do we put on our filings. And that's a big confusion in major offices.
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Andrew Weissmann
Yeah, that was a big issue that's been reported in the Eastern District of Virginia where in spite of a decision saying Lindsey Halligan was improperly appointed and serving in that role, her name still appears, which again, this falls into the category of Mary, under any administration that we have served in, Republican or Democratic, that just wouldn't be the response, would not be the response if you did have any sort of concern about Gray. In other words, if there was anything where you're like, I'm not really sure how to read this and by the way, I've been in that situation, I've gone back to the court and said, judge, this is how we're reading it, but we want to make sure we we're in compliance. Like we disagree with it. We're going to appeal it or whatever it is, but you wouldn't want to be in violation if you had any gray. You wouldn't just be like, well, to hell with you just doing it.
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Mary McCord
Yeah. Or this only applied to these two cases and no other case. And that's one of the interesting things we can dive into a little bit more.
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Andrew Weissmann
Right. I think as our want we have.
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Mary McCord
We keep. Yeah. We can't control ourselves.
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Andrew Weissmann
Right.
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Mary McCord
And then we will end with some very important things really related primarily to immigration, which is a very good decision by Judge Powell in the D.C. district court about ICE arrests in D.C. made without probable cause of either the person being here unlawfully or that the person is likely to flee, because that's required for an arrest. We're not just talking about a brief detention here. We're talking about an actual arrest. And then we will update, folks, on what's happening in front of Judge Boberg, who is still trying to get to the bottom of whether his order to turn any planes around that had taken off on March 3rd, 15th, full of mostly Venezuelans alleged to be members of Trend Aragua that ended up landing in El Salvador, and those people ended up going into seco. He's trying to get to the bottom of who made the decision and was it willful disobedience of his order to turn any planes around that were already in the air? And if we have time, we can talk a little bit about the signal gate IG report about Secretary Hegseth and his use of signal to talk about operational plans for a strike on the Houthis. And this is so interesting, given the charges against John Bolton, which also involve using unapproved personal email and personal commercially available means of communication of classified information, one person is being prosecuted. One person. It's more complicated.
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Andrew Weissmann
It's more complicated. But I have like a primer on that because I feel like the Hegseth report was underreported. Definitely. And then I also think the Barrel Howell decision is underreported. So it's great. We've been doing that. But, Mary, why don't I turn to you. Let's talk about the first thing, which is there are things that happen in the Supreme Court that are sort of going to be happening because, as you know, they've decided that they're going to hear birthright citizenship, the merits of it. When that happens, we'll discuss that. But now that's one of the things that's going up there. There are other things that there was oral argument on this issue about whether they're going to overrule a case that would expand presidential power. And there was argument on that, that.
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Mary McCord
Was yesterday, about whether the president can fire members of multi member commissions without.
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Andrew Weissmann
Any cause, like the FTC overruling a case that's decades 1935.
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Mary McCord
Yeah.
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Andrew Weissmann
And so that's going to be huge when it comes out. But let's talk about something that actually happened because there's so much news we're going to just deal with. I used to say this when I had 400 lawyers reporting to me at the FBI and they'd come in with some issue and they'd be like, well, what about this and what about that? And I'd be like, I don't have time for hypotheticals. That may never happen. I have 35,000 people with actual problems.
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Mary McCord
That's right.
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Andrew Weissmann
Like, let's just deal with the actual problems and worry about only what we really have to worry about. So here there is a decision that came out, as you mentioned. Alita wrote a concurring opinion and Justice Kagan wrote a dissent. What actually happened? We did sort of set this up, I think, last week and talk about the litigation in Texas. But what's the import of what's going on? And then what did we glean from the two written decisions that we have both the concurrence and the dissent?
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Mary McCord
Yeah. So as folks know, Texas, I think, was the first state to take up this idea of redistricting in order to gain additional Republican seats. And this was at the explicit urging of President Trump. And at least according to the opinions, the opinions below by the district court as well as this opinion, well, at least the dissenting opinion in the Supreme Court is that, you know, it didn't get much traction until the Department of Justice Civil Rights Division sent a letter to Texas saying you have these coalition districts, which means where you've got sort of a combination of minorities that together as a coalition become a majority. And that is a problem. And they're wrong about this. This is striking for me to say about the Department of Justice Civil Rights Division. You're just legally wrong. They suggested that that's a violation of the Voting Rights act because it itself is a racial discrimination. So after the Department of Justice said you need to redraw your districts, then suddenly this idea of redrawing the districts in Texas really got traction. And the district court below, when it was challenged after they were redrawn in a way that they hoped to gain at least five Republican seats after they were redrawn, that ended up in litigation. And the litigation said, this is really just a racial gerrymander because you're saying on one side of your mouth you're doing this for partisan purposes, which the Supreme Court has said. I know as much as it sounds undemocratic, they haven't said that part. Well, Justice Kagan did. That's me saying that. And Justice Kagan, yes, as much as that sounds undemocratic, the Supreme Court has said that's out of our hands. Partial or partisan gerrymandering is something that's not reviewable by the courts.
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Andrew Weissmann
We leave the partisan gerrymandering to the political process. And good luck voting on it because we're allowing the. If we Germaners to be right. So we're leaving it to the voting process. Even though you're allowed to gerrymander the voting process. I kid you not, that is the law. That's the best way to put the state of the law. And so the issue is that when somebody can challenge it is when they say this is really race based. And so I'll just go to Alito first, because Kagan sort of, in my view, and I think you agree, is sort of more interesting. Alito basically says, look, what's going on here in Texas is about politics, not about race. It is absolutely a political thing. And we've ruled, you know, for better or worse, we've ruled that that's fine and that's what's going on. And the reason this is being done is because you have political people like the president saying, do it. He didn't say that all out loud, but he was basically saying it's so obviously overtly political and not race based. And that's why it's okay.
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Mary McCord
Yeah. Which is exactly the opposite of what the district court had found. After having multiple days of witnesses, they said, look, they just used race. Now, there can be an overlap between race and politics. We all know that. But here it was pretty blatant that race was used, at least as found by the district court. And so one of the things before we move to Justice Kagan's dissent here is from Justice Alito's concurrence, because this is where I think we get a little bit of a preview about how the court, the majority, will view any other cases that might reach it where there's also partisan gerrymandering. Recall, we talked a couple of weeks ago, I think it was two weeks ago, about the case in California, now challenging the redistricting there. And this is one, unlike in Texas, where the department of justice has come in in California and saying this is a racial gerrymandering.
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Andrew Weissmann
So racial wouldn't not good for us. Yes, Just partisan when good for us.
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Mary McCord
Exactly.
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Andrew Weissmann
I mean, this is the one where I teased Mary going, Mary, I don't think you understand. Like that's the principle.
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Mary McCord
Yes, yes, justice for me, but not for thee. Something like that. Okay, so here's what Alito says. That is a little bit of foreshadowing. First, the dissent does not dispute because it is indisputable that the impetus for the adoption of the Texas map, parentheses, like the map subsequently adopted in California, end parentheses, was a partisan advantage, pure and simple. So he seems to be at least suggesting there, as long as an estate has said this is for partisan advantage, it's, you know, not going to be a racial gerrymander. And it sends at least some signal that at least the justices who joined his concurrence, which are Thomas and Gorsuch, view things that way. And of course, we did have, you know, what appears to be a 6, 3 majority here. So perhaps the others feel the same way. The other thing that the majority had said in its very brief opinion before you get to Justice Alito was, and I mentioned this because Justice Kagan takes real issue is that they say Texas made a strong showing of irreparable harm. And they say this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. The district court violated that rule here. Now, for those of you who are scratching your head and saying, didn't we just have an election? And isn't the election next November? You would be right. And yes, there will be a primary, but that's in March. And Justice Kagan takes issue with this, like, since when is, you know, a year in advance and many months in advance too close to an election? It is true that the Supreme Court has said, you know, on other occasions, you can't mess with the rules of an election. Too close to the election, it causes confusion, et cetera, et cetera. And I think fundamentally agree with that, and you probably do, too. But the cases that that arose out of it's a case called Purcell and other cases that have followed it have been much, much closer in time. Not this, not to mention redistricting is what changed the rules. Keeping the original map that everyone expected would be used would be not changing the rules.
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Andrew Weissmann
Exactly. To me, that's the issue which is like, excuse me, this whole case arose if you think this is too close to the election, this is because this is a first time ever midstream, changing courses. That's not usually how it happens. And so this is really rich to use that kind of language. I just wanted to turn down to Justice Kagan because I want to go to your point, Mary, that there's obviously overlap between something that is race based and something that is partisan, and that the court is tasked with looking to see whether something that might sort of facially be saying that it's just partisan is really race based. And here there was, as Justice Kagan goes on and on about, is like there was a detailed trial with witnesses and evidence and hearings where the judge was dutifully going through that and made factual findings. Right.
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Mary McCord
And it's a three judge panel too, just to be clear. So people understand because certain election cases, it's a three judge panel.
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Andrew Weissmann
Right. So this is not one sort of like quote, rogue judge. Right. And so this to me signaled that although the court has said partisan gerrymandering is okay, but race gerrymandering is not, this case basically says we're not going to allow you to look beyond the facial claim of it being partisan, even if there's this detailed finding. And to me, the reason the case is so important is that it basically, I think, quietly overruled the idea that you can have race based gerrymandering.
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Mary McCord
I think that fairly sums it up. And I will say, because I emphasize a three judge panel, there was one dissenter from that panel, but still two judges. And one of Justice Kagan's point is we are supposed to review factual findings by a district court for clear air, not for do we not like those factual findings. And so therefore we are going to find something else. And that's what's the heart of the racial gerrymandering claim. That's where the district court found facts that said this was done as racial gerrymandering, not just purely partisan gerrymandering. And that's where the majority said you actually, you know, didn't defer enough to the legislature. And what the legislature said it was doing, you know, criticized the district court for that and said the majority, you did not require the challengers to produce a different map that would have been based purely on partisan and not racial gerrymandering that could have also served the partisan purposes. And what Justice Kagan says is, first of all, this is turning everything on its head because we're supposed to be reviewing for clear air, not deference to the legislature, deference to the, to the district court and the district court. As you said, had a lengthy trial on this with witnesses and evidence, et cetera, and actually found some, at least one witness, the map maker, not credible in the reasons the map maker gave for the map that he made, but also said this near complete requirement that the challenger actually produce some other map. You don't need that when you have actual evidence of the racial gerrymanderment. Direct evidence, that's something you do. When you have only circumstantial evidence and you can't really determine what the reasons were, then you look at, well, was the challenger able to produce a map that wouldn't be a racial gerrymander? But here she says, we don't need that at all. And I think it's worth talking about her concluding paragraph. This court's eagerness to play act a district court here has serious consequence. The majority calls its evaluation of this case preliminary. The results, though, will be anything but this court's stay. And that just means, you know, they're staying the district court's injunction against the new maps. So the effect is, you can use those new maps. This court's stay guarantees that Texas's new map, with all its enhanced partisan advantage, will govern next year's elections for the House of Representatives. And this court stay ensures that many Texas citizens, for no good reason, will be placed in electoral districts because of their race. And that result, as this court has pronounced year in and year out, is a violation of the Constitution.
- [18:03]
Andrew Weissmann
This, to me, is in addition to my point about killing off sort of the idea that race should matter in gerrymandering continues the Supreme Court's war on the district judges. And you understand why district judges and some courts of appeals are very upset, because, as Justice Kagan said, the district judge did every single thing we wanted it to do. And they took their obligations seriously. They did it quickly, and it's as if it didn't happen. They're just ruling as if there hadn't have been a trial, that they didn't hear witnesses and just saying, we don't care.
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Mary McCord
They're just imposing their judgment, you know, judgment.
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Andrew Weissmann
That's not the way it works.
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Mary McCord
It's not the way it works.
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Andrew Weissmann
And remember, there's only one level that you've been able as a judge to hear witnesses and assess their credibility, and that is the trial level.
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Mary McCord
That's right.
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Andrew Weissmann
That is why the law says there's deference, because there's tons and tons of law that appellate courts are supposed to defer to that unless it's clearly erroneous, because they don't have the advantage. They haven't heard them.
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Mary McCord
We're seeing them right. Like we talk so much about for a jury, why does a jury sit in the same room as the witness? So that they can assess the demeanor of the witness and judges do the same thing.
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Andrew Weissmann
And the Constitution has a right of confrontation that a defendant has so that they have to be in the room, they can see their accuser. That idea of that sort of that unique ability is just gone by the wayside in terms of the big picture of what the Supreme Court's doing here.
- [19:29]
Mary McCord
So last thing before we break because we both raised this point, but this is where I would really like to quote again from Justice Kagan. It's a remarkable opinion because she uses lots of parentheticals to kind of make a little ancillary point, a little jab kind of really. And that's not that typical for Justice Kagan. Her she is less sort of confrontational in her dissents than Justice Sotomayor and certainly than Justice Jackson. So it's notable here. And when she's talking about this sort of partisan gerrymandering versus racial gerrymandering, she talks about how unusual it is to even normally districting right. Is done after every 10 year census because the 10 year census shows you what the population is, where they live. And then every state redistricts if they feel like they need to to make sure that representatives are coming from, you know, districts that have about the same number of people, et cetera. So here she says a mid decade redistricting, absent some legal need, was nearly unheard of. And although no one could challenge a partisan gerrymander in our court, our decision in Rucho, Va. Common Cause saw to that voters could hold those supporting it to political account. Then she puts in parentheses again, this was in those innocent days prior to Texas's redistricting when partisan gerrymanders seemed undemocratic or at least unsavory rather than a mark of political conviction or loyalty. And that's, I think, the whole of it here.
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Andrew Weissmann
It says it right. Mary, let's take a break and come back because we have so much more to discuss. We're going to discuss Letitia James. We're going to discuss what that means. We'll talk a little about Todd Blanch. And so let's come back and get right to it.
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Mary McCord
Yes, sounds good.
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Andrew Weissmann
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Mary McCord
Welcome back. Well, as promised, it was a busy week and still continued to be busy through yesterday when it comes to things going on in U.S. attorney's offices, particularly U.S. attorney's offices that don't have a validly appoint U.S. attorney or acting U.S. attorney or interim U.S. attorney, because to be U.S. attorney, you've got to be nominated by the President and confirmed by the Senate. To be acting or interim, you got to follow some statutory rules like we talked about in the past. So we talked a couple of weeks ago when the cases against James Comey and Letitia James were dismissed on the grounds that Lindsey Halligan was not validly appointed as the interim U.S. attorney and therefore did not have the authority to bring those indictments. And remember, in those two cases, she, she was the one who presented the cases to the grand jury. Now we've talked a little bit about how there's a statute of limitations problem with respect to any effort to re indict James Comey. There's not a statutory limitations problem when it comes to re indicting Letitia James. And I think this is an interesting point that sometimes people don't fully understand, which is that there's actually no limit on how many times the federal government can seek to indict somebody if they fail the first or the second or the third time. And sometimes what Happens is, in fact, the legitimate reason for going back a second time would be the government has new evidence and they were lacking a piece the first time. Maybe the grand jury is like, you know, we're close, but we're lacking a piece. And sometimes you keep investigating. I've had this happen. Well, actually, I don't think I ever had a no bill, but I definitely had times where I thought it'd be nice to get some more evidence before we go to the grand jury and we do that. But I know of it happening where, you know, maybe you come back, you've got additional evidence, you go back in front of the grand jury, and that time you get an indictment. I don't think that's what happened when the prosecutors tried to re indict Tish James.
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Andrew Weissmann
So this is what happened is that they found another prosecutor not in the Eastern District of Virginia. So they found somebody who was willing to present the case because, remember, Lindsey Halligan is out according to this decision, even though her name from time to time seems to be appearing. But they found a different prosecutor who presented the case. And then I actually was on Ms. Now with Carol Leonig, with Nicole Wallace when this broke. Carol Lennox reported that the grand jury refused to indict. And that means that they could not get a majority of the grand jurors to say that a charge should be brought against her. You need to get at least 12 of 23 or 12 of a quorum.
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Mary McCord
Right. You don't have to have all 23 there to have a quorum. I think you just have to have 16.
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Andrew Weissmann
Yeah, there's a whole nicety about what you need to go forward in terms of sitting. And so they couldn't get a majority. And it is true that the Lindsey Halligan decision was dismissed without prejud. And so that meant the government could try and do this. And they did try. And as we have seen in other cases, including in dc, this sort of famous Subway sandwich case, where they apparently. The old aphorism, which is that the grand jury will indict a ham sandwich. Well, apparently maybe a ham sandwich, but not a Subway sandwich and not a.
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Mary McCord
Person who throws a Subway sandwich.
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Andrew Weissmann
Exactly. So. But. And to be serious about it, it was unbelievable to me that the vote on the James Comey indictment was 14 to 9. I mean, that's just probable cause. It just signals that this case is weak here. The Letitia James case, they couldn't actually get the majority. Now, just to be clear, Mary's point is that double jeopardy doesn't attach people might be thinking, what are you talking about? If you go to trial and you're acquitted, that's over. Except in very, very unusual circumstances, because double jeopardy attaches and the government can't retry you. But this is at a different stage. This isn't the trial level. This is the grand jury level. And so the government is actually legally able federally to be able to go back. It's different in the different states have different rules on this. But federally, you can't keep going back. It's just that it doesn't happen. I have never, ever seen the idea that this would now be the third time if they go back again, because, remember, they did it once with Letitia James, and that got dismissed. That got dismissed. Now they did it a second time, they couldn't get a vote. What are they going to do it again? And what does that tell you about the strength of the case? And if they do it. But isn't this all just going to be exhibit A, B and C to the motion that Letitia James made, which was that this is a product of selective and vindictive prosecution to be bringing this in this form. And it is a violation of the Department of Justice's own rules that we have talked about, which is that you only bring a case when you have a lively prospect and you think that you can win this case at trial. Precisely so that you are not subjecting somebody to all of the opprobrium and all of the cost and the Ajita, the strain, whatever. It's like a Thomas of thesaurus here. Unless you really think that you can win this case. And to me, this is just an ongoing exhibit to the lack of rule of law, because we all know that the case is being brought because Donald Trump said, I want you to go after a perceived enemy. Right. And so this is where the grand jurors are doing their job. Going, going. Not so fast. I've actually wanted to turn speaking by the rule of law to something Todd Blanche did, which is a little bit dear to my heart because I used to run the fraud section. And so I did white collar prosecutions for, like two years. I was overseeing the wonderful, wonderful work of the fraud section. And Todd Blanche, I'm going to tell you what he was quoted as saying, and I do think that there's been some misreporting on what he said because I think it was sort of unfair to him. But then I'm going to explain why I still think he should be criticized. He spoke at what's called the FCPA conference It happens every year. The FCPA is the Foreign Corrupt Practices act, and it basically regulates foreign bribery. And he said at this conference that he is noticing that people are criticizing the Department of Justice for saying that we're not serious about white collar prosecutions, but corporations that get investigated. If you turn around and say that we're treating you unfairly, we're going to note that inconsistency, the inconsistency between saying we're not taking this seriously and you're saying you're being treated unfairly. And an inconsistency is something that we're entitled to consider and to be fair. An inconsistency where, for instance, if a company saying, oh, we're fully cooperating, they say that publicly, but they're not doing that privately. That is something that it would be right, that the Department of Justice can consider. I've actually, in my life, I've, I've pointed out inconsistencies and what a defendant or someone under investigation says versus what they do.
- [29:22]
Mary McCord
And I just to put a foot stomp on what was said, at least based on the reporting I read, he was basically saying, you all are going out and telling your clients, essentially, don't worry, the Department of Justice is not serious about fcpa. It's not serious about White Collar. But then when we do prosecute one of your clients, you're coming in and saying, this is executive overreach, et cetera, et cetera, just to get granular about kind of what he was talking about there with the inconsistency.
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Andrew Weissmann
So here's two problems with that, because one, just to be fair to him, it is not true. The headlines that say, oh, he's just saying we should go after people for speaking badly about us. That's not what he's saying.
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Mary McCord
That's not what he's saying.
- [30:04]
Andrew Weissmann
He's talking about the inconsistency. But here's the problem with that. If Todd Blanche were on this podcast, like, like, we should be so lucky, like, that's not happening. But by the way, standing invitation. Yep, I'd love to hear it and ask, like, respectful questions. But here's the questions I would have. One, there is nothing inconsistent between a company or its lawyers saying that the department is not taking white collar crime cases seriously. It's not prosecuting them vigorously in the way that other administrations. By the way, just to be clear, Republican and Democratic, I've done white collar prosecutions. I worked on the Enron case. I was the head of the Enron task force under a Republican administration. So it's not a partisan issue, but there's nothing inconsistent between saying that they're not taking it seriously. And then if there is an investigation of a company saying, by the way, you are misbehaving in this case. That's right, like you are doing something wrong here, that is not inconsistent. And so to sit there and say, well, we're going to just hold it against you that you have said you've attacked us, so people get that point. Let me just do one other thing as to the other problem with what he said is let's get real. They aren't taking white collar prosecution seriously. And I looked at the data. Okay, you know what? Todd can say what he wants. I know what the Attorney General said, which is she basically cut the FCPA program down to smithereens because the President of the United States has said he doesn't believe in the fcpa. She had said early on in her tenure that we're going to do FCPA cases essentially against drug organizations. They don't violate the fcpa exactly like that's absurd. Here's a little statistic for you, Mary. How many FCPA cases has this administration just since January brought.
- [31:57]
Mary McCord
I was sitting here thinking, have I read about any?
- [32:00]
Andrew Weissmann
So you would have read about one. Okay, so since January, that's one.
- [32:07]
Mary McCord
I'm sure it's because no one is violating the fcpa, Andrew.
- [32:11]
Andrew Weissmann
Yeah, So I can tell you that's not the case. And that comes from being a prosecutor and a defense lawyer, having defended these kinds of cases. So it's just not appropriate to do that. I mean, you're a public official. You have to be tethered to the facts, to use the phrase that we heard from Judge Immerse. I know I'm like a dog with a bone on this, but it sort of triggered me because of my prior life and I just was sitting at a conference where it is shameful when you are a public official not to feel that your obligation is to be as truthful and faithful to the facts. And that is such a good segue to what we've done. And when we've talked about immigration cases in the past, when we were going to talk about what Judge Howell found this issue about your obligation as a public servant. And Mary, you're sort of a perfect example of this because I've seen you argue things where and also when you've come and guest taught, where you present the full set of facts, whether they're good or bad for you, and then make your argument. But it's like you're not hiding the ball in any way or spinning the facts. It is such the right thing to do in every single way. And it's what's ethical and it's what is expected when you work in the government.
- [33:35]
Mary McCord
That's not just me. That's me that you. That's almost everybody I've known throughout my career in the Department of Justice. Right. I mean, that's why when you walk in the courtroom, you have the credibility of the judges. The judges view you as a credible representative of the government because they know you're going to tell them the good and the bad. You're going to advocate for your client, but you're not going to try to hide things, and you're certainly not going to misrepresent things. And before we break and come back and talk about how this is playing out in some of the courts, since you'd been talking about Todd Blanche, I do want to mention a few things that still relate to the disqualification of Lindsey Halligan and also Elena Haba, which is that what then happened is even though she said she was serving invalidly in the Comey and James cases, rather than remove her and install somebody else into that position through the actual mechanism that is provided for by law, she has just apparently remained there. And her name has appeared on various other pleadings and filings. And I'll say for everybody, typically at the U.S. attorney's office, everything you file has the U.S. attorney's name at the bottom. Now it's signed by one of the Assistant U.S. attorneys with their name, and then the U.S. attorney's name will be below that. And that's a way of signaling to the court, you know, this isn't approved filing by the U.S. attorney's office. And apparently her name is still appearing. So there have been some judges in the Eastern District of Virginia who've said to the prosecutors, why is her name on this as the U.S. attorney? And the response, according to the reporting, has been, that's what we were told to do. Now, I could see the Justice Department saying, well, that ruling disqualifying her was just in the Comey and James cases. But as we said at the top up, it means she's not serving validly. So really, in every single case, you want the opponent, whether it's a criminal defendant or a civil opponent, to say, hello, I moved for her to be disqualified. I mean, that seems kind of ridiculous. You would expect the Department of Justice to respect that ruling.
- [35:36]
Andrew Weissmann
So this got referred to a judge outside of the Eastern District of Virginia precisely so that it would be sort of an independent call to decide the issue of whether she's properly appointed. So it's not really just in these two cases. I feel really bad for the people showing up on those cases having to deal with this and just you. What some of the judges have done is struck her name from the filing.
- [36:01]
Mary McCord
That's right.
- [36:01]
Andrew Weissmann
But one of the things that's interesting to me is the judges do have an option here which they have not yet taken. After the 120 day period, the next choice goes to the judges. So you can see the judges not wanting to sort of get into this kind of battle, but the decision was that she's improperly there. And so to have somebody who's like going to be acting in that role, it is really up to the judges to do something. And so I think to me there either has to be an appeal of that decision, there has to be re argument there. You know, that's one step if the government can do that. But if not, the judges need to act right. So far they haven't. So I know the judges don't want this sort of like standoff, but this is what I would say to them. That's what's necessary. If you are dealing with somebody who is like I'm going to do whatever I'm going to do until you tell me not to to sit there and say we don't want a standoff where we're going to say do something and you're going to just say no, we need to get to that point because you are obeying in advance if you don't do it. I could understand if they asked for a stay and they got a stay of the decision, but they haven't done that yet.
- [37:12]
Mary McCord
And I think that's a critical point. They have not appealed that decision. Instead they went and sought to try to re indict Tish James. They haven't done anything in the James Comey case. And instead of appealing or instead of doing something, you know, through the court of law, what we have is social media put out by the Attorney general and the deputy Attorney general accusing certain district court and magistrate judges in the Eastern district of Virginia as engaging in, quote, an unconscionable campaign of bias and hostility against U.S. attorney Lindsey Halligan and her lion usas. Well, she is not the U.S. attorney even if she was a validly appointed interim U.S. attorney. And again the judge found that she had not been and that has not been appealed and that has not been a stayed. She's never been the U.S. attorney. So this litigating in social media by the Department of Justice is not the way it's supposed to work.
- [38:05]
Andrew Weissmann
So let's take a break and we're going to talk about Judge Howell's remarkable decision in the D.C. district Court. Judge Howell used to be the chief judge there. We will describe the litigation before and then there are some very key quotes. So stay tuned, come on back and we'll talk about Judge Howell's case.
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- [40:08]
Andrew Weissmann
So Barry, this case, I noticed that was brought by several plaintiffs, but also casa, that is a plaintiff, an organization you know very well because your organization represented them in connection with the birth rights citizenship case from what feels like a million years ago.
- [40:25]
Mary McCord
That's right.
- [40:26]
Andrew Weissmann
And so Judge Howell issued a very lengthy decision that came out on December 2nd. We'll put a link to it in our show notes because it is really a thing of beauty and the facts are something that lawyers and non lawyers can read and we cannot do it justice on this podcast. The issue here has to do very much with some intricacies of the Fourth Amendment. But don't worry, this is not Law School 2.0 or 3.0. It's pretty basic. The issue here is that in order to do a warrantless immigration arrest of somebody, the law is absolutely clear that you have to have probable cause that the person is in the country unlawfully and you need to have probable cause that they are a risk of flight. So that means, you know, if somebody, for instance, was just recently come to this country and they have no ties here, you might be able to meet that. But if you obviously came here 40 years ago and have a family and children, it'd be hard to meet that.
- [41:38]
Mary McCord
And can I just real quick contrast this with the decision in California, in la, that was about stopping and briefly detaining people. Now never mind that facts showed people some people were not briefly detained, they were actually arrested because they were taken other places and detained for a much longer period of time. That's an arrest, by the way.
- [42:00]
Andrew Weissmann
I'm sorry, Mary, you would be disagreeing with Justice Kavanaugh who wrote an opinion saying that this was all very brief. And if you remember at the time, I basically was like going, I wonder if they would say that if the people were rich and white who were being stopped because the timeframe was not brief.
- [42:20]
Mary McCord
No, that's right. Yeah. And so that was just about what's required to do a brief investigatory stop there. The standard is reasonable articulable suspicion in this case that the per. Like if we're talking about immigration, that the person is here unlawfully. Again, that's supposed to be a brief and investigatory step, which would be, sir, you know, I have a reason. I mean, you wouldn't say these words, reason to believe you're not here lawfully. Can you show me your documents? Shows them. Okay, thank you. Go on about your way. That's not what the evidence was. As you just indicated, Justice Kavanaugh found otherwise. But that's a reasonable articulable suspicion standard, which is different from probable cause here, this case. Because people might say, well, why is Judge Howell finding this? When didn't the Supreme Court say, essentially in an emergency docket opinion, it's okay to racially profile people and do these stops based on reasonable articulable suspicion that they're here unlawfully. This case is different because this case is about actual full blown arrests.
- [43:19]
Andrew Weissmann
And so the law, remember, requires probable cause. The reason we're beating this drum is because we're going to turn to something in a moment about what the government has said about when and how they're stopping people. But first, I just want to focus for a moment on a couple things about some of the named plaintiffs. So this is somebody with the acronym B as in boy, S as in Sam, R as in royal. And this is somebody who is grabbed by masked ICE and or DEA people. And he is physically taken. He has not asked many questions at all about what's going on. He's grabbed by the neck. He was asked, are you illegal? To which BSR did not respond. And then the officer says, well, we'll figure it out anyways, if you are. These are all the allegations in the complaint. So the officers don't show a warrant. They don't ask any questions about his risk of flight. They don't ask him any questions about his family. And lo and behold, after he is seized and taken to a facility in what's called Chantilly, he is eventually released. But that's not where the story ends, because you might think that first arrest, where he is seized physically and not any questions that reveal anything to substantiate probable cause.
- [44:48]
Mary McCord
Yeah.
- [44:48]
Andrew Weissmann
He and his father are then going about their business. This is after that first one. And guess what happens? You know what happens, which is both he and his father. It happens to them again.
- [45:01]
Mary McCord
Apologies. It sounds like there's a leaf blower or something like that in the neighborhood if you're hearing that.
- [45:07]
Andrew Weissmann
I don't think they like our podcast, Mary.
- [45:10]
Mary McCord
I know it's always on Tuesday morning. Why did they do this on Tuesday mornings?
- [45:14]
Andrew Weissmann
So the father of BSR and BSR himself, again, are physically stopped. Without asking anybody's names, they handcuff bsr. Remember, he's. This just happened to him. Now he's like, handcuffed again. BSR says, wait a second. What are you talking about? I was released. I've got an ankle monitor. All of this is like, you're just doing this again. And they basically say, we don't care. And he and his father are detained. BSR is detained for about five or six days, during which time the description of the physical conditions that he and other plaintiffs talk about, being packed in a room, minimal food, no ability to shower, brush their teeth. I mean, absolutely. We do not treat animals this way. It is just unbelievable, the conditions. Ultimately, guess what happens. BSR is released, but not the father. And that is just one of the many stories that are recounted in Judge Hal's Decisions I cannot do it justice. Because as I was reading it, you read it and you think about Abu Ghraib, except that this is happening on the streets of Washington D.C. and you keep on thinking this cannot be our nation. That is being described.
- [46:35]
Mary McCord
Here's a few, just other quotes that Judge Powell has when she's talking about what's happening, the inhumane treatment that deprived these detainees of basic human dignity. Here's just a handful of quotes. Quote, the agent told me that if I try to run away, they would shoot me. An ICE agent in a mask put handcuffs on me really tight and shove me against the car we've got. Sleeping in a room so cold, the detainees called it a freezer. Needing to drink toilet water to survive, watching other detainees pass out from dehydration and hunger, being told by guards they have no rights to anything. Taking multiple flights in a day while shackled because they oftentimes got moved to many detention centers across the country. So we not talking about brief detentions here, right? We're talking about full on arrest, being kept in jails where the lights are on all night, all the time, not being able to bathe, not being able to change clothes. I mean this is the kind of conditions and I think one of the things significant about this case, she finds, of course, this violation of law by violating the fourth Amendment by making these arrests without probable cause. But this is not sort of about just these people. These people were the evidence. This is about this policy and practice that ICE and CBP and the DHS is engaged in. It's not like about, okay, maybe we have one bad officer or something like this. Because the reason she's able to rule in a way that would not be like a micromanaging of every single officer is to find, as she did, this is a policy that is instituted from the top down, right? The President and Stephen Miller and others who set quotas for arrests and things like that, wanting 3,000 arrests a day. This is how this policy has been adopted and implemented. And that's what violates the Fourth Amendment. And she's enjoining that policy.
- [48:32]
Andrew Weissmann
So that's where, in case you think it doesn't get any worse, it does. Because in addition to the alleged facts about these plaintiffs, this is beyond dispute because it happened on the public record, either before the judge or in the public record in other cases or in social media. And that is the judge finds that federal public officials statements have misstated, eschewed or ignored the requisite legal standard for executing warrantless civil immigration arrests while Pressing the need for urgency in executing such arrests. Now, why does she say that? Let's take a few illustrations on page five. She says in September 25, 2025. So a few months ago, quote, DHS issued a public statement calling the allegations in this lawsuit, in this very lawsuit, quote, and this is now her quoting what DHS said. Disgusting, reckless, and categorically false. All caps under false because, quote, DHS law enforcement uses, wait for it, reasonable suspicion to make arrests.
- [49:51]
Mary McCord
Now, think back to what I said at the beginning of this segment, right?
- [49:55]
Andrew Weissmann
The reason we were a dog with a bone on reasonable suspicion is not what's required to make an arrest. Any lawyer knows that you need probable cause. But here in response to this lawsuit, they say that we only need reasonable suspicion. But it gets worse the next month. Again, this is judge Howell on page six, Chief border patrol agent Gregory Bovino. That is the same person who in Chicago was found to be not credible by the district judge there in a public statement reiterated, quote, we need reasonable suspicion to make an immigration arrest. Remember? Let me just say again, quote, we need reasonable suspicion to make an immigration arrest. You notice I did not say probable cause, nor did I say I need a warrant.
- [50:47]
Mary McCord
And that's a quote from him.
- [50:49]
Andrew Weissmann
That's a quote from him that says, you notice I did not say probable cause. Well, guess what, Agent Bovino? Yes, you do. Then it goes on. A declaration is filed before the judge that says that dhs, quote, uses reasonable suspicion to make civil immigration arrests that the supreme court recently vindicated us on this question. So, a, no, reasonable suspicion is not the standard, and B, no, the supreme court has never said that is the standard. They have said the reverse.
- [51:23]
Mary McCord
And remember, what they're referring to there with the supreme court is the case we were just talking about at the top of the segment, which was about brief detentions, which is where reasonable, articulable suspicion is good enough. It's not about arrests.
- [51:37]
Andrew Weissmann
So what's amazing to me is that you have this pattern of what the judge finds to be unlawful arrests and abuse of these plaintiffs of the clients of the organization casa, and you have the defendants remarkably saying that they don't know the law.
- [51:57]
Mary McCord
Law.
- [51:58]
Andrew Weissmann
And so the judge points that out and says, this is just a remarkable thing that you have the government saying they just actually don't know the law here and they are seizing people illegally in violation of the fourth amendment and don't even know what the legal standard is. If you want a sense of the lawlessness that's going on, you just have to look at what she is quoting accurately from the government itself about what they say the standard is. That's right.
- [52:32]
Mary McCord
Meanwhile, we've also had more developments in the contempt proceedings before Judge Boasberg. And I bring this up as related because we were talking about some of the horrible conditions that people detained, arrested here by ICE, but still kept in the United States in detention centers. We were talking about some of the horrible conditions that they experienced. I listened to an episode of the podcast the Daily that the New York Times does every day about interviews they had done with a number of those men who had actually been on those planes on March 15 that went to El Salvador and were detained for months in a terrorist prison there. And it's a very difficult listen because those conditions, I mean, you mentioned Abu Ghraib. This really does sound a lot like that. And I think that's partly why it is so important that Judge Boasberg get to the bottom of this. Remember, he actually issued an order on March 15 saying, you are prohibited, you are enjoined Department of Homeland Security from removing these alleged members of Trente Aragua from the country. And if you have planes that have taken off, you need to bring those planes back. Now, even though the Supreme Court ultimately said those cases needed to be brought in habeas, and in fact, some of those people have now brought those cases in habeas, and Judge Boasberg is ruling on that. There's still the issue of was his order violated? And he is trying to get to the bottom of this. He had ordered that the government provide declarations by Friday about who made the decision to go ahead and continue those flights. And we saw declarations filed by Secretary of DHS Kristi Noem, by the General Counsel of dhs. I think he was maybe the acting at the time, Joseph Mazzara, by the Deputy Attorney General Todd Blanch, and yesterday by the former principal Deputy Attorney General Emile Bove, who is now a Third Circuit judge. And in each one of these very brief declarations, essentially said, Secretary Noem said, I made the decision to continue the flights to El Salvador after consulting with my legal advisors, my general counsel and the Department of Justice, and getting their privileged legal advice. And she made clear, and everybody else made clear their view that the planes had taken off before the order was given. And so the legal advice had to do with after the orders was given, could the planes continue? These are very brief declarations. And Judge Boasberg has clearly determined that that is not good enough because he has now said, these aren't really telling me Anything. So I would now like to hear from the whistleblower. We've talked about him before the Department of Justice attorney Erez Riveni, who was in court on March 15 and who has left the government and has filed a lengthy whistleboard report, which we talked about, as you know, Andrew, when it first came out out, who says he was telling the authorities, his superiors at the Department of Justice and also telling his clients at the Department of DHS that this judge has ordered that these planes be turned around. That is what needs to happen. So the judge is now asked to hear directly from him as well as another Department of Justice attorney who made representations in court that day. He is trying to get to the bottom of this.
- [56:03]
Andrew Weissmann
Yeah. So what's interesting here is that you have have basically the head of the agency saying, I relied on legal advice, and I'm not telling you what that legal advice is because of attorney client privilege. So the gap here is that we don't know what the legal advice was. We also have nothing from the White House. So there's just no suggestion, if you read these, that the White House was involved in any way, shape or form, which I have to say, personally, I find hard to believe. And I don't know how they avoided when the the court said, I want to know sort of what everyone's position is from anyone who was involved in the decision. They are going to have to take a position. We weren't involved in the decision. We were only what strongly recommending. But it's up to you. I mean, I just find that pretty fanciful. And the legal issue here about privilege is actually somewhat complicated because attorney client privilege does exist for government lawyers, but it's complicated because a government lawyer represents the entity, the agency. You do not represent a person individually. And so this issue came up, by the way, in the Bill Clinton investigation. When Bill Clinton was talking to White House counsel, the courts were saying, well, White House counsel is not representing the president personally. And so the courts, when you're dealing with a criminal investigation, can cut through claims of attorney client privilege in that setting. They tend to be in a civil setting, more deferential to a claim of attorney client privilege. So that's one issue. But you could imagine that this is the administration saying, look, we're just going to say that this is reliance on legal counsel. We're going to fight tooth and nail to never reveal that. And thus, no matter what Raveni says, they're going to be like. But that's not the conversation between the secretary and the senior people at the Department of Justice, regardless of what the junior person is reporting up the chain, there could be a legitimate difference between the views of the line person from senior people. And it's going to be, for lack of a better term, hiding behind or enforcing attorney client privilege as a way to sort of avoid any sort of accountability here. It does, to me, underscore the importance of having ethical counsel and why when you have counsel, it's so important whether, by the way, this is true in a civil and criminal setting, it's true whether you're a government lawyer or not, that you're not just playing some game, which is, hey, I'm going to tell you what you want to hear because I am not going to get prosecuted as the lawyer. It's so unlikely. And B, you can then say you're relying on counsel. In other words, there's this dance that can go on where lawyers who are not ethical. But again, I'm reserving judgment on what happened here because we don't know yet. But that's the concern, is that lawyers who, again, don't have any shame, who don't understand their oath is to the Constitution and to the public, can cause enormous damage to the system. And that's something we talked about a little bit when we talked about the bombings that are going on in the Caribbean and whether LLC lawyers have blessed it or not.
- [59:20]
Mary McCord
And I think this is where, you know, we've got the sort of damage to the system and credibility. But the reason I brought up the point about the conditions these men underwent, and you've now brought up, and we've talked many times on this podcast about the strikes killing people. I mean, lawyers also have to understand the things that they are opining on, what the consequences are. And so you don't make sort of like, like this is a plausible argument. Maybe we'll just try it, right? Like, I think we have to keep in mind the serious, serious consequences from these decisions. And you're quite right, we may never be able to peel back all of the onion and see what that device is, although we've heard some of it, which is that once the planes were outside of US Jurisdiction, outside of waters, the judge lacked any jurisdiction to tell them to turn around, but that's an untested proposition there. And to do that and send these men into a situation where you, you know, because of the past and the history of that detention facility for terrorists, and these people have not been proved to be terrorists, they've had no due process. The Supreme Court has said they were entitled to due process. You know what they're facing there. So I just, I feel like there's a moral component to.
- [60:29]
Andrew Weissmann
Absolutely. Because here the one thing you do know is what the court wanted. That's right. You know what the court ordered. So you have to find ambiguity there. You might say I don't think the court was right. But that doesn't mean you get to ignore. Right. So Mary, I have a question. Do you want me to do a one minute highlights of the IG report of Secretary Hegseth?
- [60:47]
Mary McCord
One minute would be perfect because I know we are well over time.
- [60:51]
Andrew Weissmann
So the inspector general did a report on signal gate and it noted, in spite of the fact that the Secretary of Defense said it was a quote, total exoneration, unquote, that on signal gate on March 15, 19, count them, 19 people were on the signal chain. And that signal is not, not a lawful way for people to be communicating private information. The report makes it clear that they think that although Hegseth claims that he declassified the information and they don't take any issue with that, they clearly are suggesting that it didn't happen because they point out that this is information that was properly classified and that secretary was treating it as classified when he was talking about it in a statement skiff in his own home with people at the Department of Defense. So he was acting the way that sort of belied the claim that he in his head essentially had declassified it.
- [61:50]
Mary McCord
And also could I just add to you said he was in his home in a skiff and they made the point of saying he was in a skiff that whole day where there were multiple other secure means of communicating with other non DOD high level officials. So he could have availed himself of those other secure means of communicating instead of using his personal cell phone and using security signal.
- [62:13]
Andrew Weissmann
And he then is declassifying according to his own story information just within two hours of a military strike. He is discussing it on a means that's not allowed, that is not a classified or authorized setting. He didn't retain those, which is another violation that they point out because as a senior leader, I know this from when I was at the FBI, you have to retain those documents. He didn't. He also didn't sit for an interview. He, he did give a written statement, but he didn't sit for an interview. He didn't turn over a whole host of documents that were requested and apparently because they were destroyed and the IG reports that having these kinds of communications of. And could you imagine saying I'm going to discuss details about a planned strike, but no, I don't think those are.
- [63:00]
Mary McCord
Classified type of missiles are being used. Everything we're talking about granular details, right?
- [63:05]
Andrew Weissmann
So that falls into the category of damned if you do, damned if you don't. If you think that's not classified, then you're incompetent and you should not be in the job. If it's a lie that you declassified it and in fact it was classified, then you are violating yet another law, which is that you are disclosing classified information on an unclassed system. People have been charged and prosecuted for things like that, as we well know. And the IG points out, by doing this, you placed our troops at risk and and jeopardized the entire operation. So it is scathing.
- [63:42]
Mary McCord
So that's not a total exoneration.
- [63:44]
Andrew Weissmann
Yeah, no. Mary. So I think I probably went over a minute. But you know what, we will also put a link to this and one thing I will say, you can actually just go to the table of contents and if you read the table of contents, you can really get what the inspector General is saying here. Mary it's like speed reading.
- [64:04]
Mary McCord
I know.
- [64:05]
Andrew Weissmann
Or like speed dating. There's so much. But you know, there are a number of things here that you can understand why the media has trouble sort of highlighting all of the sort of things that are going on that are of grave great concern. I'm so glad we get to do this in a long form, even when we have to rush to do it in a long form. But with that, let me thank everybody for listening and for staying engaged. Remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other Ms. Now originals ad free and you'll also get subscriber only bonus content. And wait, there's more. You can take advantage of a seven day free trial if you sign up between now and the end of the year. So this is the golden moment. If you're thinking of doing it, this is a perfect time to test it out.
- [64:56]
Mary McCord
It is. This podcast is produced by Vicky Vergolina. Our associate producers are Iggy Manda and Rana Shahbazi, and our intern is Colette Holcomb. Greg Devens II and Hazik bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [65:19]
Andrew Weissmann
Search for Main Justice Where I Wherever you get your podcasts and follow the series.
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