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Main Justice
Disestablishment of the Law
00:49:28
DOJ moves to unseal materials in Epstein case, a trial for pro-Palestinian activists wraps. Plus: ex-officer sentenced in rebuke to Trump administration.
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- [00:00]
Andrew Weissmann
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- [00:09]
Mary McCord
I need a coffee.
- [00:10]
Andrew Weissmann
And you need Lifelock because your info is in endless places. It only takes one mistake to expose you to identity theft. Lifelock monitors hundreds of millions of data points a second. If your identity is stolen, we'll fix it, guaranteed, or your money back. Save up to 40% your first year at lifelock.com specialoffer terms apply.
- [00:31]
Josh Mankiewicz
I'm Josh Mankiewicz and I hope you'll.
- [00:32]
Andrew Weissmann
Join us for season four of Dateline Missing in America. In each episode of dateline's award winning series, we will focus on one missing persons case and hear from the families.
- [00:44]
Josh Mankiewicz
The friends and the investigators, all desperate to find them. You will want to listen closely.
- [00:50]
Andrew Weissmann
Maybe you could help investigators solve a mystery.
- [00:54]
Josh Mankiewicz
DATELINE Missing in America. All episodes available now, wherever you get your podcasts.
- [01:10]
Andrew Weissmann
Hi, and welcome back to Main Justice. It is Wednesday morning, July 23rd. I am Andrew Weissman and I'm here, here being in air quotes with my CO host, Mary McCord. Hi, Mary.
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Mary McCord
Yes, we are here very much in cyberspace because of various low bandwidth issues, we can't see each other today. So this will be an interesting, interesting one.
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Andrew Weissmann
I know, you know, it's really interesting. I just a little digression, which is, I mean, which is all I do, frankly. Mary, you're like, you don't even have to say it's a digression. It's a given. Which is, you know, for now, two plus years, we have never missed a show. We insist that we're always going to do it together. And we travel no matter where we are. We bring our equipment, you know, our microphone, our headphone, our laptop. And so we're sort of gallivanting, you know, across the nation and globe. And then once a week, you know, give or take a day, this is why we're doing this on a Wednesday. Every week we do this. And I have to say, Mary, it has really helped me get through this. I hope everyone else who's listening feels the same way.
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Mary McCord
Same. And kudos to our producers who put up with all of us, you know, all of the issues that come with traveling with the microphone.
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Andrew Weissmann
Exactly.
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Mary McCord
Okay, so we should get to it because we have so much on the agenda, it's even going to be hard to get to it.
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Andrew Weissmann
All right. Okay. So, Mary, I bet I know what the first topic is, but what's on our dance floor?
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Mary McCord
Yeah. What do you think we started a little of this last week, but the drumbeat of more, more, more on Epstein is just been incessant. And of course culminating this week with the Department of Justice filing a motion to unseal the grand jury materials in that case. And we'll talk about frankly how truly, truly extraordinary it is to file a motion basically for political purposes to unseal grand jury materials about some other things related to that. We also want to talk about a sentencing this week of one of the police officers who was convicted related to the shooting of Breonna Taylor by other police officers, not this particular police officer where the Department of Justice, after having tried the case and gotten a jury verdict, asked for a one day sentence. That was rejected, of course, by the judge. I shouldn't say of course, but it was.
- [03:31]
Andrew Weissmann
Yep.
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Mary McCord
And we'll talk also about a Boston trial that just finished that was about a First Amendment challenge to the targeting of foreign students and faculty there. And that's very related to all the things we've talked about over the last few months, several months, I guess at this point, six months about students being picked up on campuses and doctoral students, et cetera, including Ms. Ozturk, who wrote a very, very poignant op ed that we'll talk about. And last but not least, we have the judges in New Jersey rejecting Alina Haba as the US Attorney there and appointing the first assistant in that office and the attorney general promptly firing that first assistant. And that goes hand in hand with DOJ this week firing Maureen Comey, the daughter, of course, of former FBI Director James Comey, who also was involved in the prosecution of Jeffrey Epstein. So if I'm not already worn out just doing the intro, that's a lot.
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Andrew Weissmann
Wow.
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Mary McCord
We can just jump in.
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Andrew Weissmann
Yeah. So I think there's so much to say about Epstein and because we should talk about that and we should talk about the report that Todd Blanche is going to be meeting with the sort of, what I'll say is co defendant Ghislaine Maxwell to see what she has to say about all this. But why don't we start first on the grand jury piece. And there's so much to say, but the normal rule is to release grand jury information that is, let's say, a grand jury transcript. There's issues depending on what circuit you're in as to what exactly is grand jury information. But let's just take it as the core grand jury transcripts. That is something that is normally secret. It is very difficult for anyone to get that released and made public. For a whole variety of reasons. And we can talk about that law and how difficult it is. What I don't understand and what to me seems completely disingenuous, I mean, I really can't think of a better word, other than maybe dishonest or misleading, is the government is sitting on a lot of information. Remember this case, the Ghislaine Maxwell case, went to trial. So there's lots and lots of material that is not grand jury information. And so if the government wanted to release this, and that's a big if, I mean, there's lots of reasons not to release it. But if the government is now saying, oh, we want to be totally transparent, we want to release everything, they could do it today. Not with respect to the material, that's not the case. But there's a host of information. Right, but there's a host of information. You know how. You know that just like two days ago, the government released the Martin Luther King Jr. Information to the public, and they have the ability to do that. The issue about whether it's wise and whether it should be done, that's a separate issue. But here you have the government saying, oh, we really, really want to be transparent, but they're sitting on information that they can make public. Yeah.
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Mary McCord
Now, some of that, if it was gathered through grand jury subpoenas, et cetera, might not be. But like you said, there's going to be plenty else out there. But they've done a couple of extraordinary things. And I'll say, you know, we can talk about, and I think we should talk about the reason for grand jury secrecy. But given how strict the rules are, it was shocking to me to see this motion to unseal the grand jury transcripts, which was all of four pages. And actually the fourth page is not even a full page, I don't believe. And it was basically almost completely bereft of law.
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Andrew Weissmann
Right.
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Mary McCord
So much so that at least the judge who's handling one of these motions to unseal the grand jury materials basically put out an immediate order, also four pages, saying the court has received a four page motion from the government and the court cannot rule on the motion without additional submissions, specifically a memorandum of law. And you know, it just shows how much the shocker. Government shocker.
- [07:42]
Andrew Weissmann
Right.
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Mary McCord
Like maybe you should point to some legal arguments. And also he wants to make sure that Ms. Maxwell herself has the opportunity to weigh in on her opinion about this as well as, and more importantly from my perspective at least, and probably yours, submissions from the victims, those who might be mentioned in these grand jury transcripts. But the reason people might be saying what's the big deal about grand jury information and secrecy? And the big deal is, as the judge, Judge Paul Engelmeier in New York said in his order ordering a memorandum of law to be filed, that the federal Rule of Criminal Procedure 6e, which codified the practice of grand jury secrecy is, quote, older than our nation itself. And that is that proceedings before a grand jury shall generally remain secret. That is something courts have held over and over and over again. And it's because when people come in to testify in front of the grand jury and when evidence is presented in front of the grand jury, recall everyone that the grand jury is deciding whether to bring actual charges against somebody in a form of a formal indictment. That's what triggers, you know, that right to a trial in a criminal case. And that for all felonies, you need an indictment unless the defendant agrees to proceed without an indictment. And so it could be that many people who are investigated are never charged. And so not only don't want to release grand jury material that would disparage people who were never, ever charged with a crime without giving them their day in court to defend themselves, you also don't want to reveal personal identifying information about victims of crimes, witnesses to crimes who might then be harassed or taken advantage of. So they're very, very good reasons for secrecy.
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Andrew Weissmann
Yeah, Mary, I used to do a lot of grand jury work, and so I actually know this law pretty well. Two of the justices on the Supreme Court historically who were real proponents of grand jury secrecy, and I think this will be interesting for our listeners, were Justice Brennan and Justice Thurgood Marshall. Those are two people known as sort of real liberal icons. And they very much believed in grand jury secrecy for the reasons you said that one, people shouldn't be subject to government opprobrium if they haven't been charged. The so called put up or shut up rule. And the other is they also wanted to make sure that small fry could speak truth to power, that they wouldn't have to worry about people looking over their shoulders and they could be truthful about what's going on without fearing that their bosses, whether in a company, whether in an organized crime family, in any sort of tiered conspiracy, they wanted to make sure those people felt as comfortable or have the strongest incentive to be truthful in that situation and without worrying about it. So it's something that justices really care about. And that's the reason why I think this motion that was made by the government was Almost made, I won't say bad faith, but it was almost made sort of knowing that it's extremely unlikely that the court was going to do this. And then they get to say, oh, look, we wanted to be transparent, but the court stopped us. And the problem with that argument was, of course, that is the law. And the idea that they're just going to blame the courts, it's like, well, what about all the non grand jury information that you are not disclosing? Going back to my first point, this is such a misleading sideshow where, remember, the case went to trial. That means that there's tons of witness interview reports, there's lots and lots of information that could be made public if the government truly cared about transparency here.
- [11:34]
Mary McCord
Just so that people are clear, there are exceptions to that rule. They're in Rule 6e. And those exceptions are all about things like if you need to disclose this in the course of a judicial proceeding, if you're the federal government and you need to disclose it to state and local prosecutors. Right. So maybe they can use it in prosecution. If you need to disclose it to protect, you know, against a terrorist attack or something like that. Right. There are very specific exceptions. What the government is arguing is not that this fits into one of those exceptions. The government is saying the public interest is so great in this that the court should just exercise its inherent supervisory authority over the grand jury to release this. And there is some authority in some courts, not all. The D.C. circuit, for example, has rejected that there is that type of inherent authority. The 2nd Circuit has said in some extraordinary circumstances, particularly where something is historically important, there is that authority. And you ask a lot of questions like who's seeking disclosure? Why are they seeking disclosure? What specific information is being sought? How long ago did it happen? Right. You know, are people who are involved in testifying or victims, are they still alive or are they dead? Is the defendant convicted? How long ago? And I will just say there are cases where things have happened more than 50 years ago. And it's a researcher, historian who wants to get the records because they're wanting to publish research about various things that happened, like in the 1950s, for example. And even that has been rejected. So I just wanted to put that out there to say we're talking about right now, other than Mr. Epstein himself, probably almost everybody else is still alive. Victims are still alive. People who could be disparaged are still alive. And the reason is politics.
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Andrew Weissmann
And Ghislaine Maxwell's case is still alive. She is trying to seek Supreme Court review. If I were the district judge overseeing this, one of the questions I would have just to beat a dead horse, given that significant balancing and how much it's weighted against disclosure, I would turn to the government and I would ask the following question. You say that there is such an overweening, an overwhelming government interest here because of the public's need for transparency. Tell me what else you have made public and what the delta is. Tell me what you have made public, because we know that's going to be a universe of about zero. And tell me then what the delta is between what you could make public on your own and what is in the grand jury so that I can assess this. Because those two questions will sort of put the lie to the effort to just blame the court and say, oh, we wanted to be transparent, but we couldn't. So the other effort to try and be transparent, according to the government, is Todd Blanche saying that he is going to be meeting with Ghislaine Maxwell. Ghislaine Maxwell has been convicted. She is sort of the right hand to Jeffrey Epstein, as pursuant to a jury finding, she went to trial and.
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Mary McCord
She lost with respect to child exploitation.
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Andrew Weissmann
Yes. Huge, really significant criminality. One of the things that's important for people to know is that it is not usual, although it has happened, that you allow people to cooperate and give information after they have already gone to trial. It is much better. And the government likes to cooperate people before they go to trial. So they don't sort of take a flyer on the trial and then think they can still cooperate. But every now and then, and I myself have done it in unusual circumstances, you will allow it. This is even more unusual because it is so far after that guilty verdict. And it's also unclear whether she is going to be told, you have to be truthful about everything and everyone because here the concern is, is that there's such an overwhelming interest to have her exonerate the President of the United States. Now, maybe that is the truth and maybe it isn't, but it's going to be a real question of how much is that corroborated and also what are you going to offer her? Because, you know, you can be sure as we are both doing this, the lawyer is going to be saying, I want a full pardon or at least a commutation of my sentence or enormous reduction. And she was the number two in this scheme, by all accounts, according to.
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Mary McCord
The jury verdict, sentenced to 20 years. Right. I mean, that is a significant sentence and judges don't hand those down willy nilly. Right. So this is extraordinary. She's not going to speak for nothing. And, you know, we talk a lot on this podcast about biases and about the incentives. Right. To fabricate. Again, like you said, prosecutors use cooperators all the time. They take that risk that the cooperator might be fabricating. And you try to corroborate anything that the cooperator says. As many possible ways as you can. But this just feels very unusual at this point in time after an FBI and DOJ investigation. Right. That just got completed. And it's like, you know what? Hey, let's try one more thing. Let's go talk to Ms. Maxwell. And by the way, we haven't mentioned. It's the deputy ag.
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Andrew Weissmann
Yes, I was going to say. This is funny. There's a reason we've done this for two years. Mary, have you ever been on a case where the career people are shunted aside and the deputy Attorney General of the United States is going to go do a proffer session? Never.
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Mary McCord
Never.
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Andrew Weissmann
That is just so ass backwards. So you want a little prediction here? I'm going to go into the prediction game. We are going to talk about the firing of Maureen Comey, who actually was one of the prosecutors on the Ghislaine Maxwell case and investigating the Jeffrey Epstein matter. I foresee if this goes forward where they give Ghislaine Maxwell a deal and they cut out the career people who are doing this case, I foresee additional resignations in protest from the Southern District. The same thing we saw in the Eric Adams case. People, remember, we saw people both being fired and resigning, both in the Southern District of New York and at Main Justice.
- [17:56]
Mary McCord
I think that's a pretty good bit of speculation that I would cosign.
- [18:01]
Andrew Weissmann
So, Mary, should we take a break and come back and talk about a really interesting case where, as you mentioned, the police officer who fired his weapon, it was not any bullets that hit Brianna Taylor, but Brett Hankinson was sentenced the other day. And the reason this is so important is that the judge sentenced him to 33 months, but the government at the last minute said he should only get one day.
- [18:42]
Josh Mankiewicz
As President Trump continues implementing his ambitious agenda, follow along with MSNBC's newest newsletter, Project 47. You'll get weekly updates sent straight to your inbox with expert analysis on the administration's latest actions and how they're affecting the American people.
- [18:59]
Mary McCord
The American people are basically telling the president that they are not okay with any of this.
- [19:03]
Josh Mankiewicz
Sign up for the Project 47 newsletter at msnbc.com project47. Subscribe to MSNBC Premium on Apple Podcasts for early access, ad free listening and bonus content to all of MSNBC's awesome original podcasts, including the chart topping series the Best People with Nicole Wallace, why Is this Happening? Main justice and more. Plus new episodes of all your favorite MSNBC shows ad free and ad free listening to all of Rachel Maddow's original series, Ultra Bagman and Deja News. Subscribe to MSNBC Premium on Apple Podcasts. Start your day with the MSNBC Daily Newsletter, sharp insights from voices you trust, standout moments from your favorite shows, and fresh perspectives from shaping the news. Sign up now@msnbc.com.
- [20:00]
Mary McCord
Welcome back. As promised, we wanted to talk a little bit about the sentencing that took place this week. Brett Hankison was a Louisville Metro Police Department officer. He was with other officers executing a search warrant. This happened as a result of the police investigation into Ms. Taylor's ex boyfriend. That is why they were at her house that day. Officer Hankinson, he did not shoot Ms. Taylor. You know, she was shot. She was killed. But he did discharge his weapon 10 times, blindly firing into her apartment and I think into other neighboring apartments. Now he did this after one of his fellow officers had been shot by Ms. Taylor's boyfriend who had fired at the officer after the police, remember they broke into the home. He at least says that he had thought that they were trying to commit a burglary or a robbery or something and fired his weapon. They were not prosecuted, but Officer Hankison was.
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Andrew Weissmann
And it's useful to sort of understand the law about sort of why it was this officer and only this officer. So the boyfriend had a sort of stand your ground defense, as you said, on the theory that these people, he says, did not announce that they were the police and so he fired. The officers who fired in response to his firing had a sort of self defense claim. And so that was something where you could sort of understand why none of that group was charged. And so you have this other officer, Mr. Hankison, who shows up a little bit after the sort of initial volleys of gunfire and as you said sort of sprays these 10 shots. And there were people in the other apartment and I believe a young child, a five year old who was there. And so everyone sort of seems that just so blindly and irresponsible. And so that's what he was charged with and convicted of. I do want to just make one point about there were other people who have pled guilty. One person, one police officer and two people facing charges, which is in case you think this is horrendous enough. The government, under the Biden administration brought charges against three police officers. One who has pleaded guilty, presumably is cooperating for lying in connection with the search warrant that they got for that home and making up evidence about being able to search because of drug evidence that they thought would be there. And that is very rare to be able to put together that kind of case. But that is sort of separate. And so there are other people facing charges in connection with this because that is something that is obviously horrendous in terms of, you know, a violation of the fourth Amendment. And here it was sort of part of the sort of. But for cause of everything that happened.
- [23:00]
Mary McCord
I don't know if you read the government's whole sentencing memorandum. I did. It reads very much like a pretty normal sentencing memorandum. In other words, the government comes in and they talk about the sentencing guidelines and how the sentencing guidelines should apply in particular case and whether there should be any upward departures above the guidelines for particular reasons that might make the crime especially bad under those guidelines, or whether there are reasons for downward departures, which include things like cooperation and that sort of thing. And then they make a recommendation for the sentence. And when you read the sentencing memo, it doesn't jump out to me quite the way the headlines jump out about seeking only one day, because it. It talks about having reviewed other cases charging the same criminal statute. 18 United States Code § 242, which is deprivation of rights under color of law. That's kind of a fancy term for depriving somebody of their rights, obviously their home being invaded and shot into under of color of law. Which means while you're doing it in your official capacity here as a law enforcement officer, we just don't know of any cases where the police who did the shooting didn't actually hurt somebody, kill somebody, hit somebody, like all of the shots, you know, they could have hit plenty of people, as you just indicated, Andrew, but they didn't. And they also say that because there was a state trial that had ended in an acquittal and a previous federal trial that had ended in a mistrial. These are all reasons, in their view, that the court should depart downward from the guidelines range, which called for a sentence of incarceration down to this one day. I don't know about you, Andrew, but like, some of those reasons, I was like, okay, I get it. That you would want to explain with reference to the guidelines about how you thought the facts of this case fit into those guidelines. I mean, that's the stuff that you And I did in sentencing's memos, you know, many times. But what really jumps out here is this is really late in the day, right after we've had a trial and a jury verdict and you know, a whole lot of effort put into this case to having there be criminal accountability here at the last minute. Make a change, ask for just one day. And do it in the context also of having basically ceased the work of the Civil Rights Division to hold police officers accountable for excessive force. The Louisville Police Department was the subject of a lengthy Civil Rights Division investigation. The report came out two years ago showing that there was a pattern of racial discrimination in policing in Louisville. This case, of course, had that racial discrimination aspect to it was the same summer that George Floyd was murdered. And so it feels like it's all very part and parcel of this is not a priority for the Department of Justice anymore. That's my kind of overall thinking about it. But I don't know if you had the same reaction.
- [25:56]
Andrew Weissmann
I had a little bit of a different reaction because of two other factors. Like the discussion we just had where it was Todd Blanche who's going to meet with Ghislaine Maxwell. The submission was made by a political appointee, the head of the Civil Rights Division under this administration. Again, that's not illegal. That's totally can be done. It's just so out of the norm that it smacks of career people not actually thinking it's appropriate and that' and thus you need to have it coming from a political person. That's sort of what how it reads. And obviously they have been very vocal about the fact that they're sort of dismantling the sort of traditional view of the Civil Rights Division and going after things that previously the administrations have fought against. The other thing that I think some of the factors were not appropriate to consider. I don't think the fact that you had a mistrial and then had to be retried is a reason for a higher or lower sentence. And the same thing with respect to a state case. I just don't think that goes to the criminality. It is absolutely fair, totally fair to consider that none of the bullets actually hit anybody. And thus it doesn't make this a non crime. That's just a sentencing factor. That of course is relevant. But for this to come from a political appointee within days of the sentencing, and it's an unusual set of facts anyway, so you're unlikely to find a case that's directly on point. And one day for 10 bullets that easily could have hit Somebody that was sort of the issue. The idea was that the 10 bullets are sort of indiscriminate firing and it's sort of there but for the grace of God, somebody wasn't killed, including the young child in the adjacent apartment. And so, of course, if that had happened, it would have justified a much higher sentence. But here we actually know what the judge thought of it. And the judge, I haven't been able to, and I don't think we've been able to get a transcript, but we have the reporting of it. And the judge said that the governance's position was entirely inappropriate and rejected it in this case. And, and again, I just want to make sure people understand we're seeing that kind of reaction to what the government is doing from judges appointed by Republicans and Democrats. It is just a bipartisan issue in terms of how this is playing out.
- [28:29]
Mary McCord
In fact, this was a Trump appointed judge, right?
- [28:32]
Andrew Weissmann
Yes.
- [28:32]
Mary McCord
Yeah. I actually don't think we're that far apart. What I meant to be saying is if you read it, it looks like they're trying to apply factors and, you know, work their arguments into the guidelines. But the picture that is painted, and I agree the, the point of who signed it is significant there, is that this is just yet another way to demonstrate that this Department of Justice is not concerned about police misconduct. And, you know, it's ironic also, isn't it, given that they didn't seem to care very much about police when it came to the police who were attacked on January 6th. But I know I'm beating a dead horse on that one.
- [29:06]
Andrew Weissmann
I love it. Beat away.
- [29:08]
Mary McCord
We know that this judge took this all very seriously, found this to be unfounded, and gave a sentence that he thought was appropriate, at least for now. That's the end of that particular case. We'll see if his attorneys try to appeal the sentence or what they do.
- [29:22]
Andrew Weissmann
Yeah, I just want to make sure people put on their radar, as I mentioned, there are two police officers who are awaiting trial in connection with allegations that they lied in the search warrant application in the Breonna Taylor case. I am very interested to see what happens in that case and whether the Trump administration goes forward and presses that case.
- [29:47]
Mary McCord
Yes.
- [29:48]
Andrew Weissmann
Given what they did in connection with this case, and any prosecutor worth their salt, assuming that they think it's a good case in others, that the proof is there, that's the kind of thing that any prosecutor, and frankly, any agent, is going to think is an incredibly important case to vindicate. Because the last thing you want, the core of what you do is making sure that you have credible, truthful evidence. You take an oath of office. And so anybody who's good in law enforcement is going to think this is an incredibly important case to bring. And so let's keep our eye on what the Trump administration does with this. MARY should we now turn, after a short break, we're going to go up north to Boston and talk about, as you mentioned at the outset, a trial that just concluded. There's no decision from the judge yet. And then also talk a bit about Ms. Oesturk, who has written the most beautiful, moving essay in her local school paper. It also was picked up by Vanity Fair and we will put a link to it in the show notes. But should we take a break and come back and talk about those?
- [30:58]
Mary McCord
Yes, let's do.
- [31:08]
Josh Mankiewicz
MSNBC presents the chart topping original podcast, the Best People with Nicole Wallace. This week she sits down with actor Jeff Daniels.
- [31:18]
Mary McCord
When you check out of the Ambition Hotel, you kind of go, okay, now I just want to do stuff that keeps me interested.
- [31:25]
Josh Mankiewicz
The Best people with Nicole Wallace. Listen now. For early access ad free listening at and bonus content, subscribe to MSNBC Premium on Apple Podcasts.
- [31:42]
Andrew Weissmann
MARY so there was, as we've talked about, a two week trial. It was brought by the American association of University Professors and the Middle East Studies association and it was brought against the Trump administration. And as we said, there was a two week trial. It's before a judge in Boston, William Young, he was a Reagan appointee. What were they complaining about and what was some of the really interesting evidence that came out as a result of this trial?
- [32:12]
Mary McCord
Yes, this is fascinating because there's so many things happening in parallel. Since the new administration came into office in late January, there have been numerous students and postdoctoral researchers, foreign students, although, you know, here lawfully student visas. In the case of Mr. Khalil, even a green card holder who have been picked up by ICE and according to Secretary of State Marco Rubio, have had their rights to be in this country, their visas and in Mr. Khalil's case, his green card terminated under this provision of law that allows for foreign policy reasons, and I'll just read it, an alien, that's the term in the statute, an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse adverse foreign policy consequences for the United States is deportable. This is a provision that was originally passed during the McCarthy era. It was targeted at communists, but it was amended with a much, much higher standard in 1990, that was to be clear, that this should be very, very scarcely used and that it should not be used ever because of, quote, the aliens past current or expected beliefs, statements or associations. If such beliefs, statements or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest. In other words, don't do this based on First Amendment protected speech or association. That's how Congress clarified. Yet this is the provision that the Secretary of State has used to say that these people are deportable. Now, this trial you just talked about, Andrew, this was not a direct challenge to that statute. This was instead a challenge saying the government's policy of targeting people based on their First Amendment rights is unconstitutional. It's interesting because during the trial, we've had senior ICE officials and other ICE officials testifying that they actually used pro Israel backlisting websites to help target international student activists for investigation and possible deportation, including using a site called Canary Mission, which has been known for doxxing activists on campus. It was one of the sites relied on, according to testimony at this trial. Then using these tools, these blacklisting sites and other tools, these are the names that ICE and the Department of Homeland Security turned over the Department of State. It's pretty extraordinary as well that in Mr. Khalil's case, not in the trial that just finished, 150 different lawyers and legal scholars wrote an amicus brief that said that out of 11.7 million immigration cases that DOJ has filed since 1990, the Foreign Policy provision, the one I just read, had only been revoked about 15 times. And that was typically alongside other charges brought against the individual. So I think this paints the picture of how truly extraordinary this is. And Judge Young, who you mentioned a Reagan appointee, he held this as a bench trial, meaning there's no jury, he had the evidence presented to him and is going to be looking at issues like, was there an official government policy to violate First Amendment rights? Right. What was the government using to define anti Semitic activity? And does the foreign policy exception here, you know, somehow make what the government has done? Okay. I will note as well that during the very beginning of this trial, during opening statements, Judge Young asks a government lawyer if noncitizens have First Amendment rights. Let's just be clear. The Supreme Court has said in the past, other courts have said, yes, noncitizens in the United States have First Amendment rights. And that's the way the government attorney answered, yes, all persons have the same rights. But later she walked that back saying exactly the government's position is more nuanced.
- [36:28]
Andrew Weissmann
So it's really interesting. I think factually, as you mentioned, it's very much to what extent was First Amendment protected activity used? Was it exclusive? Was it solely based on First Amendment activity? That obviously is going to be really problematic for the government if he finds that and has, you know, clear factual support. Ms. Oesterk, I think, has a view that that is what happened, that she was targeted only because of an op ed that she co authored in the Tufts newspaper. And I don't believe there's ever been any other evidence or even claim that's right. But the other factual issue would be, well, if it's some First Amendment activity, but there's other activity, then the question is sort of how much does the First Amendment activity have to be taken out? Is it okay to consider it if you're using it with other evidence? And sort of how protected is that? In other words, words alone obviously can be used. You know, if you say I'm robbing a bank, the words, I mean, robbing a bank obviously can be used against you. And then there's the legal issues that you've raised, which is, yeah, and there's a legal issue that had been something that everyone sort of had taken to the bank and assumed was true. And the Supreme Court has said it's true, which is that when you're this country, whether you're a citizen or not, you have First Amendment rights. And that is something that Judge Young presumably is going to adhere to Supreme Court doctrine on that. He doesn't have any discretion on that. So that will be interesting. And whether they're sort of setting this up to go up to the Supreme Court, a little bit like your case, which is birthright citizenship, which is everything that we thought was true is now being challenged. And are they going to be taking the position that if you're a non citizens country, you actually don't enjoy the same First Amendment rights and that sort.
- [38:17]
Mary McCord
Of flip flop, which would be extraordinary.
- [38:20]
Andrew Weissmann
Extraordinary.
- [38:20]
Mary McCord
These are all the legal issues which for you and, and I and so many other people are fascinating and disturbing. And to think that things that thought were settled law, you know, might become unsettled. But the reality of what this means for people is where I think Ms. Ozturk's essay is so important and, and I know we wanted to share some of that with listeners because she's telling what it is like to be scooped up off the street, sent to a detention center after passing through Multiple locations, not knowing where she was being taken to, why she had been picked up, not being given water or food, et cetera, and then being housed in essentially a tiny cell with many, many other women in a ICE detention center. She poignantly tells what that experience is like. And I gotta, you know, spoiler alert. It is not. It is not good in terms of the conditions, but the comradery of the women supporting each other is actually pretty beautiful to read even under such dire, dire conditions.
- [39:25]
Andrew Weissmann
I couldn't agree more. It's exactly the point I was gonna make. And a lot of times when you hear about a case and you're thinking about it in terms of the effect on hundreds or thousands and sometimes tens of thousands, like a birthright citizenship case, in terms of scooping up and extracting immigrants, it's very useful to have individual stories so people can understand what's going on. Ms. Osterk wrote this beautiful piece. Again, it is in our show notes, and I just want to read some of it to you. The title of the piece is Even God Cannot Hear Us Here what I Witnessed Inside an ICE Women's Prison. And Mary, it is exactly what you said, which is. It's the horror of what happened to her matched with the beauty that she was able to see and witness and experience from the other people who supported each other and her supporting them while she was in jail for six weeks for no good reason. Remember, she was released by a judge in Vermont over lengthy oppositions. And we've talked about what I think were terribly bogus arguments by the government trying to keep her detained. She says that on a Tuesday in March, I had spent most of my day working on my dissertation proposal and started to feel exhausted and hungry. It was the holy month of Ramadan and I was fasting. I was looking forward to taking a short walk and catching up with friends at the interfaith center when I was suddenly surrounded and grabbed by a swarm of masked individuals who handcuffed me and shoved me into an unmarked car. Suddenly, I was thrust into a nightmare. My mom had heard my scream on the phone when they were taking me. She didn't know where I was. And I could only imagine how many times she tried to reach me from oceans away or who my father had attempted to contact. As my body shook with fear, I found myself drowning in thoughts. I began my final prayers, communicating with God that I had tried my best every day. To me, this is sort of the quote that really just. It's hard not to get emotional over it. It. I never could have imagined such an ordeal when I came to the United States in 2018 to pursue my graduate studies, learn and grow as a scholar and contribute to the child development field. I mean, we like to think we're proud of being American. And that statement certainly indicates just how much we have to grow as a.
- [42:15]
Mary McCord
Country and how much people who, you know, had expectations that were warranted. Expectations, Right. Expectations of what they could study here, how they could speak here, how they could contribute to their chosen profession and how those kind of hopes. And it's not just about hopes being dashed, it's about expectations based on law that had been established in this country for so many years that now, like we just said a few minutes ago, I feel now I'm repeating myself. Are you are becoming in some ways disestablished by this administration. And it's just. Anyway, I should stop. I need to stop.
- [42:50]
Andrew Weissmann
So continuing still, despite these awful circumstances, I clung to my belief in humanity. I took a moment to collect my thoughts. I then began engaging in conversations with the women around me. And that really is the heart of her story, is her saying the next chapter of my experience in prison began in that moment. Over the next six and a half weeks, I found myself immersed daily in the love, beauty, resilience and compassion of these women. We each found ourselves trapped in our own individual nightmares, but we found comfort and relief in one another, and we shared the burden and pain by listening to each other. So that's just gives you a flavor of what she wrote. It is incredibly moving. And it is one story of. And her point is it's one story of many, many stories, and it tells you sort of the cruelty of what is going on here.
- [43:54]
Mary McCord
Well, it's hard to follow that with anything.
- [43:56]
Andrew Weissmann
Yeah. Yeah. Let's move, though, to. Should we talk a little bit about what's happening with the U.S. attorney in New Jersey, Lena Haba, and what happened with Maureen Comey. Which brings us back to Maureen Comey, remember, is the prosecutor who was working on the Ghislaine, Maxwell and Epstein cases in the Southern District of New York.
- [44:17]
Mary McCord
Yep. People should know that when a president appoints an interim US Attorney, as he did with US Attorneys in various places, including Alina Haba in New Jersey, that interim U.S. attorney that, that authority to make that appointment is provided by Congress in a congressional statute, and it is limited to 120 days. And if the interim attorney hasn't been nominated or confirmed, well, even if they've been nominated but not yet confirmed, if they haven't become the U.S. attorney, the district Court judges in that district get to decide again by congressional statute. It's kind of unusual, but this is how the statute operates. They can decide whether to extend that person or to say no to that person who was the interim attorney. And to point someone else, we have now seen district court judges in the Northern District of New York and now most recently in the District of New Jersey. After the 120 days we've seen them reject the interim US attorneys appointed by President Trump, including Elena Haba. What then happened is, again, by operation of this statute, the district judges can appoint a person. And here they appointed the first Assistant United States Attorney. That is an ausa, like I was. Like you were, who is now like sort of second in charge in the office. And these are career people. That is not a political position. The only political position in the US Attorney's offices are the US Attorneys themselves. So the district judges, who probably know this person very well, appointed her to then be the acting U.S. attorney. So in very short order, the Attorney General of the United States promptly announced that she had fired the first assistant. So a couple of questions are raised here. First, what did it mean to fire her? She can certainly fire her as the First Assistant, but it does not seem that the Attorney General of the United States actually has the authority under the statute to fire her from being the Acting U.S. attorney appointed by the district Court judges. In fact, an Office of Legal Counsel opinion from 1979 says that under these statutory authorities, only the president can fire an acting U.S. attorney who's been appointed by the judges, just like a president can fire a US Attorney who he appointed through nomination, advice and consent and confirmation by the Senate. And so we are in an interesting situation right now with the first assistant maybe not being the First Assistant in the office anymore, but still, at least by operation of law, still being the Acting U.S. attorney pursuant to the District Judge's appointment. Now, President Trump could certainly come in and undo that, but at least at the time we're recording, I don't think he has.
- [46:59]
Andrew Weissmann
So a couple things just for the take home here, because there's a. There's a lot of technicalities to this statute. One, it is really, really, really rare. Matter of fact, I can't really think of a time that the judges don't just re up and reappoint after 120 days, the person who was selected by the and nominated by the President. I mean, if there's sort of a delay and it takes more than 128, they just. The person's usually qualified. And it's fine. So this is now the second time this has happened in the Northern District of New York the same thing happened. So, one, this is really, really rare that judges would do this. It's such a vote of no confidence by these judges. And again, judges appointed by all sorts of presidents saying these people are not qualified for a whole variety of reasons. And second, it's of course, then really unusual for the Department of Justice to then try and get around that because, you know, every day of the week you're showing up in front of the court, in front of these judges, and this is basically giving, let's just say, a middle finger to the court saying, we're not going to respect your independent decision. And as you said, the legality of this is something that is not totally clear. And I do suspect that both in the Northern District of New York, where this happened and in New Jersey, we're going to see defense lawyers bringing claims, you bet. Saying that the office is not sort of correctly constituted and the US Attorney who is signing off on indictments is not actually the right U.S. attorney and legally appointed. So you're going to see litigation over this. But it's another sign of the depths to which we are going. And that's a perfect segue to the firing of Maureen Comey. And there it was done by a letter from the Attorney General. Purportedly, the US Attorney in the Southern District of New York was not notified and made aware of this, and their concurrence wasn't sought. It was just the Attorney General of the United States firing somebody. And there was no reason given other than saying, I can do this under Article 2, the President's executive power. That's tantamount to saying, just so everybody understands, that's a way of saying, civil service rules do not apply. I do not need to have cause to fire you. And it would be hard to imagine that you would have cause with respect to Maureen Comey and frankly, many of the other people who have been fired. But this is setting up this idea that the Department of Justice and the executive branch doesn't have to pay any attention to civil service rules. And we've gone on way too long for me to give a owed to why civil service is so important. And we will certainly come back to that because this is an ongoing issue that we are covering in this podcast. But the Marine Comey incident is one that you can sort of take that larger message in terms of what is happening here.
- [50:02]
Mary McCord
Yes. Let's put this again in the bigger context. Right. This comes right after the director of National Intelligence decided to make some criminal referrals of none other than James Comey as well as John Brennan to the Department of Justice. And, you know, long a nemesis of the current president. It does just, you know, get your little red flags going, your little spidey sense that why right now would Maureen Comey be fired? Could also have something to do with the Epstein matter. Who knows? But I will say that reliance on Article 2, she's not the only one who have gotten firing letters from the attorney general, firing them based solely on Article 2, the President's authority under Article 2. In fact, every letter that I've seen that someone at the department has received, including the former immigration lawyer who worked on the Abrego Garcia case and other cases we've talked about here, got this Article 2 firing letter. So, yes, civil service protections don't seem to matter to this particular administration.
- [51:08]
Andrew Weissmann
Okay, Mary. So on to next week.
- [51:11]
Mary McCord
That's a lot.
- [51:12]
Andrew Weissmann
That's a lot. And once again, thank you everyone for listening. I know it can be really tough and it's so important to stay engaged. Mary and I go through that every week. 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 and you'll also get subscriber only bonus content.
- [51:39]
Mary McCord
This podcast is produced by Max Jacobs. Also thanks to our intern, Colette Holcomb. Bob Mallory is our audio engineer, Bryson Barnes is the head of audio production and Aisha Turner is the executive producer for MSNBC Audio.
- [51:54]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and follow the series.
- [52:14]
Josh Mankiewicz
I'm Josh Mankiewicz and I hope you'll.
- [52:16]
Andrew Weissmann
Join us for season four of Dateline Missing in America. In each episode of Dateline's award winning series, we will focus on one missing persons case and hear from the families.
- [52:27]
Josh Mankiewicz
The friends and the investigators all desperate to find them. You will want to listen closely.
- [52:34]
Andrew Weissmann
Maybe you could help investigators solve a mystery.
- [52:37]
Josh Mankiewicz
DATELINE Missing in America all episodes available now. Wherever you get your podcasts.