Distractions and Sideshows

Summary

Main Justice Podcast Summary: Episode "Distractions and Sideshows"

Release Date: August 5, 2025
Hosts: Andrew Weissmann and Mary McCord
Podcast Series: Main Justice by MSNBC

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Introduction

In the 150th episode of Main Justice, hosts Andrew Weissmann and Mary McCord delve into the myriad distractions and sideshows currently plaguing the Department of Justice (DOJ). Drawing from their extensive experience within the DOJ, they analyze recent developments that aim to divert attention from significant legal and constitutional issues.

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1. Hatch Act Investigation into Jack Smith

Overview:
The episode opens with a discussion on the Office of Special Counsel's (OSC) recent decision to investigate Jack Smith, a Department of Justice Special Counsel, for potential violations of the Hatch Act.

Key Points:

• Differentiation Between Offices: Mary McCord clarifies the distinction between the "Special Counsel's office" within the DOJ and the independent "Office of Special Counsel."

  "[06:19] Mary McCord: The Special Counsel's office that's within DOJ... is entirely different from the Office of Special Counsel."

• Nature of the Investigation: The OSC's investigation into Smith centers on whether he and his team complied with the Hatch Act, which restricts federal employees from engaging in partisan political activities.

  "[06:59] Mary McCord: The Hatch Act requires federal employees not to engage in partisan political activity while on the job."

• Perceived Motivations: Weissmann and McCord express skepticism about the administration's motives, suggesting the investigation serves as a political distraction.

  "[09:21] Andrew Weissmann: A lot of things in that category, by the way."
  "[09:23] Mary McCord: Right?"

• Procedural Concerns: The hosts highlight procedural issues, such as the OSC's recent appointment of an investigator with alleged loyalty to Donald Trump and the inadequacy of the Merit Systems Protection Board due to a lack of quorum.

  "[11:26] Mary McCord: There have been no facts alleged when people have said they're opening this investigation, no facts whatsoever have been alleged that predicate the investigation."

Notable Quote:

"[16:44] Mary McCord: ...if you're going to undertake an investigation and ... that is not going to actually be able to result in anything other than words being put on paper or set on television."

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2. Appointment Controversy of Alina Haba as Acting U.S. Attorney

Overview:
The conversation shifts to the controversial appointment of Alina Haba as the Acting U.S. Attorney in New Jersey, highlighting the administration's maneuvers to retain her in the role despite judicial pushback.

Key Points:

• Judicial Intervention: A federal judge rejected Haba's continuation as Acting U.S. Attorney after her interim period expired.

  "[33:22] Andrew Weissmann: ...the judges are saying these people are so unqualified, we're not backing them."

• Multi-Step Maneuver: The hosts dissect the judge's description of the administration's five-step process to retain Haba, which included withdrawing her nomination, forcing her resignation from the interim role, and reassigning her to circumvent Senate confirmation.

  "[34:47] Mary McCord: ...they had an end in mind and anything in the way just got disposed of."

• Implications for Checks and Balances: Weissmann criticizes the administration's strategy as a blatant bypass of Senate oversight, undermining established checks and balances.

  "[36:06] Mary McCord: ...we just go by the wayside. So just to be clear, the judge has said..."

Notable Quote:

"[37:12] Andrew Weissmann: ...this is like checks and balances. What?"

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3. Department of Justice Bar Complaints

Overview:
Weissmann and McCord address recent bar complaints filed against three DOJ lawyers, including Eric Hamilton and a special counsel in the Civil Division.

Key Points:

• Nature of the Complaints: The Legal Accountability Center has filed complaints alleging ethical violations related to misleading court declarations concerning the dismantling of the Consumer Financial Protection Bureau (CFPB).

  "[43:15] Mary McCord: ...the omissions from the first declaration rendered it to be highly misleading, if not intentionally false."

• Case Example: Jeffrey Clark, a former DOJ official involved in coercing Georgia to recount votes, faces recommendations for permanent disbarment based on his actions.

  "[44:05] Mary McCord: ...judge is looking at this multi step maneuver..."*

• Accountability Concerns: The hosts emphasize the importance of holding DOJ attorneys accountable to maintain the integrity of the legal system.

  "[45:04] Mary McCord: ...preservation of the rule of law is essential."

Notable Quote:

"[47:22] Mary McCord: ...grades as highly misleading, if not intentionally false."

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4. Ninth Circuit Decision on ICE Raids

Overview:
A significant portion of the episode is dedicated to the Ninth Circuit's affirmation of a temporary restraining order (TRO) against ICE raids, emphasizing the violation of the Fourth Amendment due to lack of reasonable suspicion.

Key Points:

• Case Background: The plaintiffs, including Jason Bryan Gavidia, argue that ICE agents are conducting raids based on impermissible factors such as race and language, without individualized suspicion.

  "[48:16] Mary McCord: ...they took Gavidia's ID and his phone and kept his phone for 20 minutes. They never returned his ID. That is a seizure."

• Court Findings: The court determined that ICE lacked reasonable suspicion to justify the stops, citing examples of discriminatory practices.

  "[49:18] Mary McCord: ...compliance with the Constitution requires reasonable suspicion."

• Significance of the Decision: Weissmann praises the ruling as a triumph for the rule of law, highlighting the courts' role in checking executive overreach.

  "[50:32] Mary McCord: ...this tells you everything about John Durham, frankly."

• Public Policy Implications: The discussion underscores the necessity for policy changes to prevent future unconstitutional raids, emphasizing the need for transparency and accountability within ICE operations.

  "[53:06] Mary McCord: ...this was just so telling because..."

Notable Quote:

"[54:50] Andrew Weissmann: ...they do not say what it is, at least in the record that we have before us that justified stopping Mr. Gavidia specifically."

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5. DOJ's Requests for Voter Information

Overview:
Towards the end of the episode, the hosts briefly touch upon the Department of Justice's ongoing requests for voter information from numerous states, linking it to upcoming elections.

Key Points:

• Potential Implications: While not delved into deeply, Weissmann hints at underlying concerns regarding the use and scope of the requested voter information.

  "[55:27] Andrew Weissmann: ...we will talk briefly about what some other things going on with respect to the Department of Justice."

Note:
This segment is flagged for future discussion, indicating its importance in the broader context of electoral integrity and privacy.

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Conclusion

In "Distractions and Sideshows," Andrew Weissmann and Mary McCord provide a critical examination of current DOJ activities that seem designed to divert attention from more pressing legal and constitutional issues. From the Hatch Act investigation into Jack Smith to the controversial appointment of Alina Haba and the Ninth Circuit's decision on ICE raids, the hosts emphasize the importance of upholding the rule of law amidst political maneuvering. The episode underscores the need for transparency, accountability, and adherence to legal standards within governmental institutions to safeguard democracy and constitutional rights.

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Notable Quotes Summary:

• "We don't look like we have 150 episodes in. Yes, sometimes I feel like it." ([01:56])
• "It feels like for sure it's been quite a ride." ([01:57])
• "Maybe it's time to turn up the heat." ([00:51])
• "This falls into the category of...you've got to be frigging kidding me." ([08:21])
• "The only penalties for a Hatch Act violation are a disciplinary action." ([15:54])

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End of Summary

Transcript

[Kelly Ripa]

Hey there, it's Kelly Ripa. And if you've been listening to my podcast, we are knee deep in season three. And if you haven't heard it, it's time to get on board. After years of interviewing celebs on camera, I finally get to bring you the real conversations that take place when the cameras aren't rolling. Where else are you going to hear Michelle Obama talk about keeping her girls out of Page Six? Hilaria Baldwin's hilarious reaction to Alec running for office? Or Jeremy Renner's lucid hallucinations about Jamie Foxx? Nowhere else. It's raw, it's honest, and best of all, it's off camera. And believe me, that's where you get the good stuff. So download. Let's talk off camera with Kelly Ripa now. Wherever you get your podcasts, are you.

[Andrew Weissman]

Ready to get spicy?

[Mary McCord]

These Doritos Golden Sriracha aren't that spicy.

[Andrew Weissman]

Maybe it's time to turn up the heat.

[Mary McCord]

Or turn it down. It's time for something that's not too spicy. Try Doritos Golden Sriracha.

[Andrew Weissman]

Spicy, but not too spicy.

[Mary McCord]

Hello and welcome to our 150th episode of Main Justice. Well, technically, I would say it's maybe like 129 or something of prosecuting Donald Trump and a little tale of Main justice, but basically, same people. Same people, right? Exactly. Same people, same wonderful production team at MSNBC. And this is our 150th episode. I am Andrew Weissman, and as you all know, that voice is my wonderful co host, Mary McCord. So, Mary, we don't look a day over a hundred.

[Andrew Weissman]

We don't look like we have 150 episodes in. Yes, sometimes I feel like it.

[Mary McCord]

It feels like for sure it's been quite a ride. And I have to say, we have our work cut out for us.

[Andrew Weissman]

We do.

[Mary McCord]

And there is so much to cover in terms of what you and I used to do in the criminal space and the national security space. There is just, you know, the, the old phrase, which is drinking from a fire hose. It's. It's really amazing because we still are doing it six months into this. And in many ways, when things go badly for the Trump administration, whether it's 1.0 or now 2.0, there seems to be this effort to distract with something more outrageous. And so that, in many ways, is going to be a writ larger topic today.

[Andrew Weissman]

I was just going to say that's a perfect. That's a perfect start. Distraction.

[Mary McCord]

Exactly. I love it.

[Andrew Weissman]

Speaking of distraction, that's a lot of what we have on our agenda today. And there's just so much, it's all it's distraction and drinking from a fire hose. So we will start out with the confirmation, I think, over the weekend, that the Office of the Special Counsel is investigating Jack Smith for potential Hatch act violations. And we will make sure people understand the Office of the Special Counsel has nothing to do with the appointment of a Department of justice special counsel such as Jack Smith when he investigated Donald Trump. That was a Department of justice special counsel. The Office of Special Counsel is a separate office and does different things. And so we'll talk about that. We will also talk about some of the other things that have happened with respect to appointees of Donald Trump. Alina Haba we've talked about before, appointed as the interim and now appointed as the Acting U.S. attorney in New Jersey and how that has been controversial and including defendants facing charges. They are trying to dismiss those charges because of the extension of her appointment through some real machinations, shall we say?

[Mary McCord]

Good word.

[Andrew Weissman]

Yes. Then we'll cover some Department of Justice updates, including bar complaints that have now been filed against three Department of Justice lawyers, including some who are not political. That I think is, you know, that's something to talk about. There are pros and cons of that. And we will talk about other things that are happening sort of within DOJ and within the ranks of those have left doj, because there's a lot of activity there. And then we'll move to things that are on our radar, such as DOJ requesting voting information from many states and apparently intending to ask for more. And we're not going to be able to get really into that today, but we will flag it and we will definitely be coming back to that because this is all a lead up to the upcoming elections, 2026, 2028, and something that we covered a few weeks ago, which was a federal district court judge who had issued a temporary restraining order saying these ICE raids where they're rounding up people without individualized reasonable suspicion that they are in violation of law. This is something that got enjoined and the Ninth Circuit refused to stay that injunction upon the government's application for a stay, basically agreeing that the plaintiffs has shown a likelihood of success on the merits of their argument that ICE is using things like race and speaking Spanish and what kind of work you're doing and things like that as a proxy for illegal and undocumented status. So lots and lots and lots. And we should jump in. And I will just say I think A fitting starting point is this. You know, in the midst of the furor over the Epstein files that we've been talking about for what, two, three weeks now, both on this podcast and on other legal commentary that Andrew and I both do, in the midst of all that, suddenly, what do you know? Office of Special Counsel Investigating Jack Smith.

[Mary McCord]

Let'S first start with something that is very confusing. I still get it wrong, which is when I worked for Robert Mueller, who was a special counsel at the time, it was as part of the Special Counsel's office. Many people would be like, wait a second, I don't understand. There's the Special Counsel's office, there's the Office of Special Counsel. What's the difference? The Special Counsel's office is the team around a special counsel appointed by the Attorney General. The Attorney General appoints a special counsel and they have a team, and that's the Special counsel's office. That is entirely different from the Office of the Special Counsel. So it's remember, Special counsel's office that's within doj. That's like Mueller, it's like Durham. It's like Rob her.

[Andrew Weissman]

Yes.

[Mary McCord]

But then there's the Office of Special Counsel. And that is what we're going to.

[Andrew Weissman]

Focus on, which is an independent agency, whatever used to be called an independent agency. Query whether that exists anymore.

[Mary McCord]

Yeah, what I would say is it's independent of the Department of Justice, but it is not totally clear. It's really independent of the executive branch. But the Office of Special Counsel is headed by a person whose job with their staff is to monitor, principally something called the Hatch Act. And the Hatch act is a congressional statute. And there are a lot of different provisions, but one of the things that it does is it requires federal employees not to engage in partisan political activity while on the job. And there are lots and lots of intricacies to this statute, but that's sort of the general gist of it. It does not apply to the President of the United States. And this is something that what has now been announced is that this is a civil statute and that the Office of Special Counsel is going to be opening or has opened an investigation into Jack Smith and his team as to whether they complied with the Hatch Act. Now, I really have to digress to say it is really rich for this administration to say that they're investigating and take seriously the Hatch Act. Now, I personally do take seriously the Hatch Act. I think it is a useful statute to say that essentially there's a real should be a separation of politics from your functioning as a career person and frankly, even if you're a political appointee, that it shouldn't invade that space. But for this administration, there's so many examples of their reported to have violated themselves the Hatch Act. And people may remember the Chief of Staff, Mark Meadows for Trump in the first administration, in response to the Office of Special Counsel report indicating that there'd been numerous violations by various people of the Hatch act, his saying that nobody outside the Beltway takes that statute seriously and suddenly this civil statute is something that they need to investigate. I mean, this falls into the category of. You've got to be frigging kidding me. Yeah.

[Andrew Weissman]

A lot of things in that category, by the way.

[Mary McCord]

Right?

[Andrew Weissman]

Yes.

[Mary McCord]

So.

[Andrew Weissman]

A couple of other points about this. That Office of Special Counsel, you're right, they do investigate Hatch act violations. They also do a number of other things. Right. Like take whistleblower complaints and investig whistleblower complaints.

[Mary McCord]

Or they used to.

[Andrew Weissman]

Or they used to. That's within the role of the Office of Special Counsel. And the Special counsel within that office is somebody appointed by the President. But it is not supposed. It's some. Again, the agency is supposed to have some independence from the president according to how Congress created it. But of course, Donald Trump, like he did with so many heads of, quote, unquote, independent agencies, came into this second Trump administration and promptly fired Hampton Dellinger, the head of the Office of Special Counsel. That was a case that got litigated, including briefly up to the Supreme Court on a stay motion. And when the Supreme Court stayed any order that would have prohibited Trump from firing Dellinger, that's when Hampton Dellinger abandoned his litigation, paving the way for Trump to appoint someone of his own choosing into that position. And so that's what we're talking about happening right now. A person of Trump's own choosing who does have a history of loyalty to Donald Trump, is now the one who is opening this investigation. I will note that investigations of the Special counsel also, if they want to take any action, for example, let's say he were to determine or recommend that Jack Smith had violated the Hatch act, it would go in front of the Merit Systems Protection Board, a multi headed, also quote, unquote independent agency where Donald Trump has fired all of the Democratic appointees. There is no longer a quorum before the mspb. And so that board is now not able to take any action. So all of this, there's a million reasons why this seems kind of ridiculous.

[Mary McCord]

Can I give you one more which goes to the merits.

[Andrew Weissman]

Yes.

[Mary McCord]

So Todd Blanche when he was being confirmed and had his hearings, he suggested that he witnessed political activity when he was dealing with Jack Smith's office. And he said as an example of that, that it was sort of their rush to wanting a trial sooner rather than later and that they wanted it to not drag on. Ryan Goodman and I, Ryan is a professor at nyu. One of my colleagues there, we wrote a piece about that issue because Jack Goldsmith also had suggested at the time that Jack Smith was engaging improperly in sort of politics in terms of when he wanted this case to be heard and wasn't giving a good reason for it. And Ryan Goodman and I wrote a piece and we can put a link to it in the show notes. And that piece argued and pointed out that under the rules, there was absolutely nothing wrong with the Department of Justice trying to vindicate the public's right to a speedy trial and gave lots of examples and reasons under the rules and within my own experience as to why that would be a legitimate thing to do. Obviously, we don't know what the underlying facts are. That all remains to be investigated. But on the face of it, and it's probably really important for people to note this, which is there have been no facts alleged when people have said they're opening this investigation, no facts whatsoever have been alleged that predicate the investigation. And that's something, Mary, that it's worth probably making sure people understand. When Mary and I were in the department, the common thing when somebody would come to us and say that they want to look into something or they want to investigate something, the key buzzword is what's your factual predication? Meaning you just don't go off on a frolic and detour. You don't go on a fishing expedition. To use another hackneyed phrase, you need factual predication. Why are you doing this? What's the reason? And that is such a useful thing. We're going to get to that at the very end when we talk about the 9th Circuit decision about factual predication for pulling over black people who are in the black and brown communities in Los Angeles, that the lack of factual predication, the lack of discussion by this administration to justify their actions, if you have those facts, there's no reason not to set them forward. So anyway, here there's. There's a complete dearth. And it really, for that reason, to me, and I think to you, Mary, it seems like a real distraction.

[Andrew Weissman]

Yeah. And I will also note it, you know, I think started kind of a long time ago. But again, right now is when this breaks right in the middle of this other furor that they're trying to distract attention to. And how does that get teed up by Senator Tom Cotton sending a letter to the acting Special counsel, Jameson Greer, asking for this investigation to be taken up that was sent, I think, on Wednesday. And oh, lo and behold, by the weekend, the special counsel's office indicates it's going to take it up. And as you said, the allegations are simply that Jack Smith demanded a trial starting six months after indictment or something, thereabouts, and how outrageous that was. And again, judges expedited trial, judges on the courts of appeals expedited hearings, even the Supreme Court. And we criticized how little they expedited, but even they expedited Donald Trump's litigation on that. The other thing that I think really has got to be said because it just really kind of underlays all of this. Why is this happening and why is it a distraction? The only penalties for a Hatch act violation are a disciplinary action. And I'm reading from the statute consisting of removal, reduction in grade debarment from federal employment for up to five years, suspension or reprimand or a civil penalty. Guess what? Jack Smith is not a federal employee. He cannot be fired. Suspended, reprimanded, reduction in pay, none of that. He resigned before Donald Trump came into office.

[Mary McCord]

And the other people. And Mary, the other people have been fired. Have been fired precipitously without cause.

[Andrew Weissman]

Yes, that's right. There are no criminal penalties as part of that Hatch act, and there is no authority of the Office of Special Counsel to bring a criminal prosecution. So it all sort of seems like it is a big publicity stunt, honestly, because that office. Performative, that's a better word. So we will obviously keep an eye on that. But, you know, I think that that last point in a way just sort of like shows what this is, because if you're going to undertake an investigation and by the way, on the taxpayer dime, that is not going to actually be able to result in anything other than words being put on paper or set on television. It just kind of begs the questions, why is that happening?

[Mary McCord]

Yeah. And maybe one final point, and it's, it's not totally apples to apples, but it's worth noting that Donald Trump and co defendants made arguments about selective prosecution. And they made those arguments in both federal cases, the one before Aileen Cannon and the one in D.C. before Judge Chutkan. And both judges, when they reached, to the extent they reached the merits of that, rejected the argument that there was selective prosecution. And so it's one more reason that this is really, I think, Mary, we have now basically stomped on this to death.

[Andrew Weissman]

As to yes, we have.

[Mary McCord]

You know, procedurally, substantively, as to why this just makes no sense at all and really seems like a calculated sideshow. I wonder if we should take a quick break and come back and talk about another side. Exactly. Okay, let's take a quick break and we'll come back and continue with the the Other Sideges.

[Andrew Weissman]

Sounds good.

[Mary McCord]

Foreign.

[Kelly Ripa]

Hey there, it's Kelly Ripa. And if you've been listening to my podcast, we are knee deep in season three. And if you haven't heard it, it's time to get on board. After years of interviewing celebs on camera, I finally get to bring you the real conversations that take place when the cameras aren't rolling. Where else are you going to hear Michelle Obama talk about keeping her girls out of Page Six? Hilaria Baldwin's hilarious reaction to Alec running for office, or Jeremy Renner's lucid hallucinations about Jamie Foxx? Nowhere else. It's raw, it's honest, and best of all, it's off camera. And believe me, that's where you get the good stuff. So download. Let's talk off camera with Kelly Ripa now. Wherever you get your podcasts, Bubba Wallace.

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[Andrew Weissman]

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[Mary McCord]

Welcome back. So on the issue of sideshows, I want to highly recommend to start us off a article in the New York Times by a reporter, Charlie Savage, who is somebody who covers national security issues because he issued an extremely well reasoned and informative piece on what we're about to talk about. And it's going to seem like ancient history, but it's not. It should be ancient history, but it's not. And that is he looked at something that was recently unsealed and that is an appendix to The John Durham report. John Durham was special counsel who investigated the investigators. That's why, by the way, it has come back, because all the news is like, oh, this administration is going to investigate the investigators going back to 2016. And my first reaction was, that's been done.

[Andrew Weissman]

That's right. Multiple times.

[Mary McCord]

Right, multiple times, exactly. I mean, if you're looking for a Trump prosecutor who was appointed to investigate the investigators, that was done. John Durham did that at the behest of Bill Barr, the Attorney General at the time. And so he looked, this is Charlie Savage looked at the now disclosed appendix and pointed out a couple things, but one is he noted, first of all, this is in an appendix. It wasn't in the main report. It was attached in an appendix. And he noted the following. One, there's never been any issue, whether it's John Durham, whether it's the Senate intel report, whether it's the Mueller investigation. There's never been any serious challenge whatsoever to the fact that, that the Russians interfered in the 2016 election. The claim now, though, is. And the thing that John Durham looked at as well was the idea as to why the Russians were doing it, not that they did or did not do it. It was given that he. They did it. Just so everyone makes sure they understand that's a given. No one's challenging that. And even though sometimes it gets confusing and that you hear this as Russian hoax, it's not a hoax that has just been proved up one side and down the other. The issue is, why did Putin do it? Was he just trying to sow general discord, or was he doing it because he favored one side or the other? And the thing that John Durham looked at was in particular, two emails that, if you read them and if you thought they were real, suggested that Hillary Clinton and her campaign wanted to tie Donald Trump to the Russian effort to interfere. And this was her effort to do this, and it was to distract from her own email problem. And in the appendix, John Durham gives substantial reason and substantial evidence that the two emails were faked. They were Russian propaganda. There is no question also that Russia had hacked into the dnc. It's sort of very well known. They hacked into it and they released them shortly after the Access Hollywood tape as a way of sort of countering the impact of that. This is all incredibly well documented. And so one of the things that Charlie points out in his piece is, why on God's green earth is this in an appendix? You just were just finding that what's called the Clinton plan, I was going.

[Andrew Weissman]

To say let's name it, because that's.

[Mary McCord]

What they're calling it, the Clinton plan is, by your estimation, not true. You don't have conclusive proof that it's not true, but you conclude that there's substantial reason to believe that these two emails are Russian concocted emails, where they take the hacked emails, use a lot of the language, and then proceed to doctor them to give the impression that they are real when they're not. And so, I mean, this tells you everything about John Durham, frankly, that you would not put this in the main body of your report. And can I just maybe pat ourselves on the back? And the Mueller investigation, there were things that people had suggested we should investigate and we did investigate. And sometimes we found that there was reason to believe it and sometimes we didn't. That was not put in that back. So, for instance, there was a lot of suggestion about whether the RNC platform was changed to be friendly to Russia at the behest of Donald Trump. And we did find evidence of that. And that's in our report. And that's what it means to just lead with the facts, let the facts govern where you're going. And to me, one of the more surprising things here was the fact that this got relegated to the back. And that's sort of really the thrust of Charlie's point, which was not only is it important for people to know the conclusion that he reached, but also the manner in which it was done is so not what you expect of a government lawyer.

[Andrew Weissman]

Yeah, that's right. And it does show also, I mean, it's weird to me because it should have been in the main report, but it does show that Durham took pretty great care with this. Right. Like he looked at these emails.

[Mary McCord]

Absolutely.

[Andrew Weissman]

He talked to people in the intelligence community and got their assessment. There were some who did, at least according to him, say these seem to be legitimate. Others who said they don't seem legitimate, the people who were supposedly the drafters of these emails they interviewed and, you know, suggest that those people credibly said, I didn't write those emails. Those are not terms I would even use. You know, yes, we thought it was an important story if there was any type of coordination between Trump campaign and the Russians. But, you know, this was not a Hillary Clinton thing. And then he looked at the fact and you just raised this point that the actual hacked emails, when looking at emails from people who had been hacked by Russia, there would be particular phrases in those emails that got pulled into these alleged now probably fake emails. And that is a type of tradecraft. Right. That is a type of crate, make it look real, because you're going to take bits and pieces of something that is real and then add some fabrication to it. And so ultimately, I think Jerome, you know, comes to the right, at least based on everything he says, kind of comes to the right result, which is, I don't have evidence to actually suggest that these emails showed that Hillary Clinton's team wanted to turn this into something. It's just this placement, as you say in this annex, is sort of like, that's a little sketchy. But I think the other thing that is really, gosh, you know, I'm out of adjectives. Like, I would say remarkable, but it's not remarkable, actually. But it goes to our distraction.

[Mary McCord]

Unremarkable.

[Andrew Weissman]

Unremarkable. Yeah, maybe unremarkable goes to our distraction team is what apparently some people in Donald Trump's orbit are saying about this very report, this very annex that we've just talked about, and trying to suggest the absolute reverse of what it really does.

[Mary McCord]

The opposite.

[Andrew Weissman]

The opposite, yes. I mean, basically, we have, according to Charlie Savage's and Adam Goldman's story, Cash Patel, everyone knows, current FBI director saying that the annex revealed, quote, evidence that the Clinton campaign plotted to frame President Trump and fabricate the Russia collusion hoax. Well, that is actually not the conclusion of John Durham. It's not the conclusion in the annex, but there we are. And in fact, that feeds into, I think, the latest distraction that has been reported, which is that Attorney General Pam Bondi has directed the opening of a grand jury investigation now into this, quote, unquote, Russia collusion hoax. Going back, as you've said, I think, not even to 2016, but maybe even further back. In full disclosure, everyone knows that Andrew was on the Mueller team that investigated this. I think everyone knows I was actually at the Department of Justice as the principal Deputy Assistant Attorney General and later the Acting Assistant Attorney General for National Security involved in the Russian investigation before Special Counsel Mueller was appointed. So I want people to just know that, because obviously, as this is being investigated, these are things that, you know, at some point, Andrew, or I may have to, you know, think about, answer to, I mean, be interviewed, who knows? But it's really something to see this raising its head again because we've talked about the John Durham investigation, but that's not it. Right. The Office of Inspector General thoroughly investigated this. The House and Senate both had their own teams investigating this. Senate put out a lengthy bipartisan report about the Russia investigation. Of course, you had the Mueller investigation, you had John Durham's investigation. So to be dredging this back up right now, something thoroughly investigated and trying to make it into what looks like some sort of criminal investigation, I think fits quite nicely with our distraction theme for the day.

[Mary McCord]

Absolutely. And there it's worth remembering that John Durham's beef with that sort of the beginning phases of the investigation, not the Mueller investigation, this is the FBI investigation. The sort of Crossfire Hurricane investigation had to do with the category within the FBI as to how it's opened, whether it should be a, quote, full investigation, which is just a term of art for internal categorization within the department, or whether it should be a, quote, preliminary investigation. Just to be clear, he was not saying it shouldn't be investigated and there was no factual predication at all. And so even if you take John Durham as the final word and you, and you agree with him and you disagree with the inspector general who said that it was appropriate to open it as a full investigation, and the inspector general said that he saw no signs that this was politically motivated by the FBI. But even John Durham's response is that it needs to be investigated. So again, this is a retread and you do have to ask yourself that it is a distraction and performative and that you sort of get the sense that is Pam Bondi doing this because she sort of had dumped on her lap the Tulsi Gabbard statement that is contrary to the Charlie Savage piece in the appendix to the John Durham report. And it sort of distracts from Epstein. And it also shows she's doing stuff at a time that some people are reporting that she's on sort of thin ice because of the whole Epstein debacle. So again, we'll wait and see what happens there if there's any sort of new evidence. But just to be clear to date, again, absence of factual predication and a lot of real questions raised by the facts that we do know point in the opposite direction.

[Andrew Weissman]

That's right. So before we break, let's talk about one more thing which is not really a distraction, but it is something we've talked about and I think it is important to people. We talked either last week or the week before about the fact that another one of Trump's interim appointed U.S. attorneys, Alina Haba, was, after she came to the limit of her allowable time, that's 120 days by statute, allowable time as interim U.S. attorney, the judges of the District of New Jersey rejected her continuing in that service, appointed the first assistant in that office, Desiree Grace. And that led to what a federal judge has described now as sort of a whole series of, and I called them earlier machinations to keep Alina Haba in that position. So the judge who is now handling a case brought by diplomat defendants who are facing criminal charges in the District of New Jersey, seeking to have those charges dismissed unsuccessfully, I will say, but that judge really, I thought, had a great description of what happened. He says on July 24, the administration made five moves which he calls part of a multi step maneuver to keep Alina Haba in the United states attorney role. First, Ms. Haba's nomination to be the United States Attorney was withdrawn. Because this is an important point. While she was serving as interim U.S. attorney, the president had actually nominated her. You cannot be acting while you are nominated.

[Mary McCord]

So by the way, let me just make sure people are following this is we're not going to get into the total weeds. But just to underscore a footstep, what Mary said, you can be an interim.

[Andrew Weissman]

Yes, U.S. attorney, silly, honestly.

[Mary McCord]

But only for 120 days. But you cannot be an acting U.S. attorney and be nominated. That's right. So you can be interim and nominated, but you cannot be acting and nominated. So it's so ridiculously complicated. But she, Alina Haba had been interim and nominated and her 120 days went by. And so that's when the judges. But by the way, doesn't happen. And this is now happening all over the country where judges are saying these people are so unqualified, we're not backing them.

[Andrew Weissman]

That's right. So this is where this federal judge who's now looking into these defendants claim is talking about this multi step maneuver after, after the judges made their decision to appoint somebody else. And remember, then Pam Bondi fires the first assistant, Ms. Grace, and says, you're fired. And now we have the five moves. First, the nomination gets withdrawn. Second, Ms. Haba resigned from her position as interim United States Attorney. Third, Ms. Bondi appoints Ms. Haba as a special Attorney to the Attorney General and authorized her to conduct in the District of New Jersey any kind of legal proceedings, civil or criminal, including grand jury proceedings, et cetera, anything that a U.S. attorney is authorized to conduct. Fourth, Ms. Bondi appointed Ms. Haba to the vacant due to Ms. Grace's termination first assistant position as the United States Attorney. And fifth, because the way the Vacancies act works, the first assistant automatically becomes the acting fifth. Ms. Haba was automatically elevated to the position of acting U.S. attorney by virtue of her new role as first assistant United States Attorney and the vacancy in the U.S. attorney position that followed from her resignation, presumably moments earlier from the interim United States Attorney position. This is the federal judge recounting these five steps he calls a multi step maneuver.

[Mary McCord]

Two quick points on this. One, notice that the First Assistant is an inconvenience and what happens to her? She's fired. A career person is just fodder for this. There's no sense of duty or loyalty to that person in terms of what they've done. I don't know her. I don't either from Adam's house cat. But that's just not how you treat people. But this is basically, they had an end in mind and anything in the way just got disposed of. And the second is if this stratagem works. And this is why the judge is looking at this and is going to have briefing on this issue. This stratagem of, you know what? I could just, as the Attorney General, appoint somebody as my special counsel and they can just act forever as my special counsel in the position, essentially fulfilling all the functions of a United States Attorney. It gets rid of the idea that there has to be Senate confirmation for a United States Attorney. It just basically says, you know what, again, we have figured out a way to bypass Congress, by the way, which is sort of unbelievable because it's not like Congress is much of a stumbling block these days. This is like checks and balances. What?

[Andrew Weissman]

Yeah.

[Mary McCord]

Don't believe in checks, don't believe in balances. You know, we just go by the wayside. So just to be clear, the judge has said, and to Mary's point, that the indictment's not getting dismissed because that happened long before any of this was an issue. But the issue of whether Alina Habba can serve in this role and supervise cases. Yeah, exactly. Is something that the judge is going to hear. There's a secondary issue about what would happen to the people reporting to her. But the main issue really is about what is Alina Ahaba's role and can she be in this position. Is it just an impermissible end run around the statute and the Senate's role in United States attorneys? And the government's position is loud and clear, which is we can do whatever we want and the Attorney General can sort of run the U.S. attorney's offices without a U.S. attorney being there, which would really be such an affront to how things have been done under both administrations. But, you know, as Mary Hughes, you've said there's nothing unremarkable about that, right?

[Andrew Weissman]

That's right. So more to come on this. And again, you know, it's not surprising that defense counsel would immediately see this as a vulnerability in a way to help their clients. And I don't think either one of us faults them for that because that's what you do when that's your role. And of course, they will still have to face charges, may or may not be supervised by Alina Haba. And we will, we will come back to this. So shall we take another break? And then I know we have spent a long time on these topics, which are super important. So we're going to have to fly quickly through some of the other things. We want to talk briefly about what some other things going on with respect to the Department of Justice and then highlight a couple things on our radar.

[Mary McCord]

And let me just give a bit of a teaser because the Ninth Circuit decision dealing with the ICE raids that we talked about, the district court decision on that, but the court of appeals decision is a wonderful, remarkable, uplifting decision. Whether it stands is one that we will see. But it's nice to end when we come back on something that is, to my mind, rule of law. Exactly. So let's take a break and come back and cover something positive.

[Andrew Weissman]

Sounds great.

[Mary McCord]

Foreign.

[Kelly Ripa]

Hey there, it's Kelly Ripa. And if you've been listening to my podcast, we are knee deep in season three. And if you haven't heard it, it's time to get on board. After years of interviewing celebs on camera, I finally get to bring you the real conversations that take place when the cameras aren't rolling. Where else are you going to hear Michelle Obama talk about keeping her girls out of Page Six? Hilaria Baldwin's hilarious reaction to Alec running for office, or Jeremy Renner's lucid hallucinations about Jamie Foxx, nowhere else. It's raw, it's honest, and best of all, it's off camera. And believe me, that's where you get the good stuff. So download. Let's talk off camera with Kelly Ripa now. Wherever you get your podcasts, sometimes an.

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[Andrew Weissman]

Welcome back. So before we get to the good the good news, I don't know whether to put this as good or bad news to me. I'm mixed on this. We did have the Legal Accountability Center, I believe it's called an organization, file complaints with the Office of Disciplinary Counsel for different state bars and the Bar of the District of Columbia. And again, it's not strictly speaking, litigation in a court like filing a court case. It's the way that someone can file a complaint against an attorney, allege that they are committing ethical violations. That gets investigated by an Office of Disciplinary Counsel within that state bar. And then in some states or in places like D.C. their recommendations will go to the state court. So, for example, the D.C. disciplinary Council has recently recommended that Jeffrey Clark, who held a position in Trump 1's first Justice Department and was very, very involved in the scheme to get Georgia to try to coerce Georgia into recounting its votes, he wanted to send out letters saying that the Justice Department was opening investigations into election normalities in Georgia. And the acting attorney general and acting deputy attorney general absolutely refused because they said there is no indication in our investigations that there was any fraud that would have changed the outcome. All of that stuff got him a recommendation that he be permanently disbarred. And that is now going to go to the D.C. court of Appeals. But these things start out at this lower level. So what we had is the Legal Accountability center file three different complaints against current attorneys at the Department of Justice, only one of whom is a political appointee, the deputy assistant attorney general, Eric Hamilton. The other two, one is a very long term tenured manager or special counsel in the Federal Programs Branch of the Civil Division of the Department of Justice, which defends the government against litigation. Another is a trial attorney. So we're getting down to sort of like that most basic level within that division. And these complaints are about the filings in a case that was brought to try to prevent the dismantlement of the Consumer Financial Protection Bureau, the CFPB you know, remember at the beginning of this administration, you had Russ Vogt and Doge going in and really dismantling all kinds of independent agencies. We had Trump firing, as we just were discussing the heads of independent agencies. Now, we had lots and lots of litigation, and that litigation is still ongoing. And there were some representations made, at least according to these allegations, that really do appear to have been trying to somewhat hide or obfuscate what was actually happening in terms of halting all work at the cfpb. And so the allegation is that these attorneys, by filing a declaration, not, not their sworn statement, but a declaration from somebody at the CFPB that turned out to be not really accurate, that this is something that they should be disciplined for, unclear how disciplined. And they are getting some of this from some statements by Judge Amy Coney Barrett in that very case where she said, and this is in the complaint, that the omissions from the first declaration rendered it to be highly misleading, if not intentionally false. Defendants initial effort to persuade the court in their opposition that employees were hard at work on their statutory duties even after they were ordered to stand down on February 10 has been shown to be unreliable and inconsistent with the agency's own contemporaneous records. And the defendant's 11th hour attempt to suggest immediately before the hearing that the stop work order was not really a stop work order at all was so disingenuous that the court is left with little confidence that the defense can be trusted to tell the truth about anything. Now, we have talked about this judge and other judges being extremely frustrated with representations made in court by the government. What's different here is she was not, at least in that excerpt, did not appear to be necessarily saying, this is the fault of the attorneys in front of her. This is the fault of the defendants, which the defendants in that case, of course, were those that were involved in the dismantling. Maybe that's parsing the bologna too thin. And I do think holding people accountable, including Department of Justice attorneys, whether they're career or political, is important. But they also, you know, they also are subject to what their clients, right. The actual defendants in the case tell them and how much they push back on that.

[Mary McCord]

What I would say is it remains to be seen. I mean, it does, you know, at some point, they may not have intentionally done it. They may have been reckless. They, they may not have done anything wrong. But, you know, it is important that, as we've talked about, you have a duty of candor and you're an officer of the Court. And I think that there's a reason these judges of all political stripes in terms of who's appointed them are pushing back on what is going on, as you coined it, Mary, many, many episodes ago. Presumption of irregularity. Let's end out some good news. Yes, the ninth Circuit has, in a three judge decision, affirmed the tro. Technically, they have denied the government's attempt to stay the temporary restraining order that the district court issued. And it is a remarkable temporary restraining order because the district court basically said comply with the Constitution.

[Andrew Weissman]

That's right.

[Mary McCord]

You have to have reasonable suspicion to do a stop of somebody. We talked about, Terry, stops that you need to have reasonable suspicion unless it's on consent. And here the judge made a finding that was not challenged, that these were not consensual and that there needs to be reasonable suspicion and that you cannot consider solely things that are impermissible, such as race, nationality, location, unrelated to the specifics of the person. And to give people an example, let me just read one example that the ninth Circuit gave. We like to talk about some of the legal issues, but let me just make sure people understand from the court's perspective, just one instance of what is going on here. And this is the court now saying, to give just one example, plaintiff Jason Bryan Gavidia, I'm sorry if I mispronounced the last name, is a United States citizen who was born and raised in East Los Angeles and identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California where he saw agents carrying handguns and military style rifles. One agent ordered him to stop right there. Stop right there in quotes, while another quote ran towards him, unquote. The agents repeatedly asked Gavidia whether he is American and they repeatedly ignored his answer. I am an American. The agents asked Gavidia what hospital he was born in and he explained that he did not know which hospital. The agents forcefully pushed Gavidia up against the metal gate fence, put his hands behind his back and twisted his arm. I'm taking out the sort of ellipses in the quote. An agent asked again, what hospital were you born in? Gavidia again explained that he did not know which hospital and said east la. He then told the agents he could show them his real ID. The agents took Covidia's ID and his phone and kept his phone for 20 minutes. They never returned his ID. That is a seizure.

[Andrew Weissman]

That's right.

[Mary McCord]

In order to justify it, that obviously was not consensual. They didn't come up to him and said, can I talk to you? And he agrees he was ordered to do this according to the findings here and findings the district court and what the court of appeals has relayed. And the easy way for if you are in the government to justify this is to set out what your factual predication was with respect to Mr. Gavidia. That is noticeable because as the court of appeals said, in spite of all sorts of filings by the government and affidavits about procedures and sort of what ICE is doing or not doing, they do not ever say what it is, at least in the record that we have before us that justified stopping Mr. Gavidia specifically. And to me, that was just so telling because, Mary, I am 100% sure if this was you, you either have the factual predication or if you don't, you admit error.

[Andrew Weissman]

Well, and in fact, the court makes a big point of saying the government is not at this juncture in asking for a stay, contesting that, you know, any of this, that the district court had concluded, right, that stops were being made based on race, based on speaking Spanish because of a location they thought that lots of immigrants would be, and because of the type of work, like at a car wash or a farm or a construction site. Right. They're not even contesting that. And the court of appeals says, we agree with the district court that particularly here, and they make a note of the population and the racial and ethnic demographics of that population, where such almost half of that population within that central district of California is Latino. They're saying these factors are meaningless here when it comes to what is required by the Fourth Amendment, which is reasonable particularized suspicion about the person you are stopping, that they are actually in violation of law. There was also something, I think, very remarkable that occurs right up on page four of this 61 page opinion.

[Mary McCord]

By the way, Mary, this is why this is our 150th episode. Because I am looking at my screen now and guess what page I am on.

[Andrew Weissman]

I sure it's the same page.

[Mary McCord]

Page four, footnote two.

[Andrew Weissman]

Yes.

[Mary McCord]

Okay, Mary, go for it.

[Andrew Weissman]

This is where they put in a footnote that the plaintiffs contend that these practices, right, these ICE raids that we just heard your fantastic description of, and that was just one description, by the way. There are multiple examples in this opinion. These ICE raids, plaintiffs contend, stem in part from an Official target of 3,000 arrests per day by ICE. Now, probably everyone listening recalls this number. 3,000 arrests per day is what we want. And so the court says during Our oral argument, we asked the defendant's counsel whether the federal government has a policy of directing ICE field offices to make 3,000 arrests or deportations a day, whether that directive may come from ice, the President, or some other official in the administration. Defense counsel replied that he was aware of no such policy. We asked him to look into the matter and submit a 28J letter with an answer. That's a submission with supplemental authority, and I won't read the entire submission. But they did submit a letter to the court responding to the court's inquiry, and they say DHS has confirmed that neither ICE leadership nor its field offices have been directed to meet any numerical quota or target for arrests, detentions, removals, field encounters, or any other operational activities that I SWORDS components undertake in the course of enforcing federal immigration law.

[Mary McCord]

However.

[Andrew Weissman]

Yes, the court then says, we Note that on May 28, 2025, White House Deputy Chief of Staff Stephen Miller stated during an interview on Fox News, quote, under President Trump's leadership, we are looking to set a goal of a minimum of 3,000 arrests for ICE every day. And President Trump is going to keep pushing to get that number up higher each and every single day.

[Mary McCord]

So what's so fascinating is, so, of course you have this letter, but you also have Stephen Miller's statements on air. And this is what's so fascinating is the letter says about Stephen Miller, that quotation, the Stephen Miller quotation, the one I just read right, quote, may have been accurate. May have been accurate? What do you mean, may have been accurate? But no such goal has been set as a matter of policy, and no such directive has been issued to or by DHS or ice.

[Andrew Weissman]

Now, gosh, Andrew, if you were an ICE official, what would you be thinking about whether you're supposed to get 3,000 arrests per day?

[Mary McCord]

I have to say, if I were actually the plaintiffs in the district court litigating this, I'd say, and now I want discovery. Because, like, you don't think that they're going to be people or emails or texts that, let's just say, could put more meat on the bones as to what those communications were. That Stephen Miller never conveyed any of that to anybody. I mean, it just. Look, maybe he didn't, but it's like this. To me, the wording of this is just so nebulous that there's a reason that footnote two here is as detailed as it is to talk about this. And just one quick thing. The reason this is important is that legally, to get an injunction that stays what the government's doing is that you need to sort of develop this as a sort of pattern and practice that. It's not sort of a one off thing. You're looking to see whether it's a policy that would repeat itself as opposed to something that's just an historical thing that would, wouldn't happen again. And so that's why this issue and footnote two is important to the legal decision. Again, you know, we can put a link to this decision because it's really nice to be able to end on a high note. It's a lovely decision. It's very complimentary of the district court. And for people who want to understand sort of what's happening on the street, it really gives in sort of lay terms what is going on to people and what ice, which you know, works for us, we don't work for them, are doing here according to the courts, without sufficient factual predication. And that's in violation of the fourth Amendment.

[Andrew Weissman]

Yeah. And you know, we don't have time for it today. But they also deal with the question about universal injunctions that came out of the birthright citizenship case. And they're like, look, first of all, this is just here in the central district of California. So it's not universal around the country. But this order is necessary for complete relief because these people might get this might happen to them again. And it's not like guys knows, are you one of the plaintiffs when they decide they're going to do a raid. Right. So anyway, lots of stuff, lots of really important stuff in this opinion. And we will be, you know, following this case.

[Mary McCord]

Absolutely.

[Andrew Weissman]

As it proceeds.

[Mary McCord]

Yep.

[Andrew Weissman]

Now, something we didn't get to is to talk about requests being made by the Department of Justice for voter information from the states. We don't actually have a lot on that. I wanted to talk about it because this doesn't pretend good things.

[Mary McCord]

I'm glad we sort of flagged it. But everyone, I would say stay tuned. Before we wrap, I wanted to let everyone know that MSNBC is hosting again our second viewer focused live community event. I actually participated in the first one which happened in Brooklyn, New York. It was really fun and terrific. And this one is happening on Saturday, October 11, again Saturday, October 11, at the Hammerstein Ballroom in New York. And it's called MSNBC Live 25. I like that. MSNBC Live 25. This is who we are. We'll have a link with more information in our show notes and stay tuned here for more details.

[Andrew Weissman]

Thanks as always for listening and remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content like the recent conversation Nicole Wallace had with novelist Daniel Silva about art, Spies and Truths in this Moment.

[Mary McCord]

This podcast is produced by Vicki Virgolina and Max Jacobs. Our intern is 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.

[Andrew Weissman]

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

[Kelly Ripa]

Hey there, it's Kelly Ripa. And if you've been listening to my podcast, we are knee deep in Season three, and if you haven't heard it, it's time to get on board. After years of interviewing celebs on camera, I finally get to bring you the real conversations that take place when the cameras aren't rolling. Where else are you going to hear Michelle Obama talk about keeping her girls out of Page Six? Hilaria Baldwin's hilarious reaction to Alec running for office, or Jeremy Renner's lucid hallucinations about Jamie Foxx? Nowhere else. It's raw, it's honest, and best of all, it's off camera. And believe me, that's where you get the good stuff. So download. Let's talk Off Camera with Kelly Raba now. Wherever you get your podcasts.