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Main Justice
Election Chaos: Callais Fallout, Virginia, Fulton County and Retribution
00:54:09
The domino effect of Louisiana v. Callais, Virginia Democrats ask SCOTUS to weigh in on their redistricting fight, and Trump’s retribution continues.
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Download Today home to the Rachel Maddow Show. Morning Joe, the briefing with Jen Psaki and more. Voices you know and trust. Ms. Now is your source for news, opinion and world. Learn more at Ms. Now.
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Andrew Weissman
Hello and welcome back to Main Justice. It is Tuesday morning, May 12th. The voice you're hearing is Andrew Weissman and that is Mary McCord. Hello, Mary.
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Mary McCord
Good morning, Andrew.
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Andrew Weissman
So my shameless question, are you ready for it?
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Mary McCord
Yes.
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Andrew Weissman
If today is May 12, what happens in one week?
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Mary McCord
Book launch. Book launch. Andrew Weissman's book launch.
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Andrew Weissman
Book launch.
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Mary McCord
Did I get it right?
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Andrew Weissman
You got it right. Yes. So my book, liars Kingdom, and by the way, the reason I'm thinking about it is recording this show right now is so great because my hand feels like sort of hamburger meat because I'm signing hundreds of book plates.
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Mary McCord
So you know what? My little miniature violin is just playing the saddest melody for you.
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Andrew Weissman
I'm not hearing the sympathy. So I signed hundreds of these and I just signed them. And then somebody said to me, well, what are you writing? And I said, writing? I'm writing. I'm writing my name. And they were like, no, but what are you writing? And I'm like thinking, well, my name has two words in it, you know, first name and last name.
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Mary McCord
They're.
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Andrew Weissman
No, no, no. But what do you, you know, you have to say something.
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Mary McCord
Oh, my.
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Andrew Weissman
And I'd already finished hundreds of these, so I had to go back because I was like, did you really and write something?
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Mary McCord
I was going to suggest auto pen.
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Andrew Weissman
Well, I was thinking, now I understand the auto pen and I'm viewer of these, then I would say Donald Trump's pardons has that to segue into something. All right, so, Mary, after that shameless plug.
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Mary McCord
Yes. Well, that is probably going to be about the last light moment of today's
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Andrew Weissman
podcast because say that we say that almost every week.
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Mary McCord
I know this week feels. I say this every week also. Just it feels extraordinary. And a lot of it is post ca. The case, of course, that we discussed at length last week and, and just horrendous behavior, in my opinion, by the states to try to take advantage of that ruling. And all of this happening when we are in the midst of primaries in an important election year. And frankly, that is going to be segments one and two. What's been happening in Calais? What's been happening post Calais? The Virginia redistricting decision, an emergency appeal to the Supreme Court in that decision, and other related election matters, including the denial by a federal judge in Fulton County, Georgia, of a motion to order the return of everything seized during the execution of the search warrant by the federal government, the FBI, earlier this year. On what we have discussed, of course, Andrew's, you know, really, I think, pretty spurious allegations of fraud. That motion was denied, and it wasn't denied because he thinks that the search warrant was perfectly fine. And we'll get into that.
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Andrew Weissman
Yeah, exactly. And it'll be interesting because I have a real take on that and the Virginia decision. I'm going to be fascinated to know whether this is going to be yet another instance where, Mary, you and I are in violent agreement.
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Mary McCord
Yeah.
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Andrew Weissman
Anyway, that's two segments. There's more.
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Mary McCord
There is. Then we will close out with a theme we return to nearly every week, which is retribution. We will talk about the scheduling order that was issued in the case against James Comey, which is nothing but a scheduling order, by the way. That does not necessarily mean that trial is going to start in July. And we'll talk about why that is. And we will talk about the oral argument last week in the D.C. circuit in the case brought by Senator Kelly against the secretary of defense, Pete Hegseth, who has ordered that he be reinstated and demoted and his retirement affected, et cetera, based on his participation in a video where I believe two senators and four representatives, former military and intelligence officials, called on members of the military not to obey illegal, unlawful orders. And I emphasize that because he did not say disobey lawful orders. And we will talk about that.
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Andrew Weissman
Yeah. And that. Actually, stay tuned for the last part about the Senator Kelly argument, because I'm pretty sure, Mary, you and I agree that even though it may be 2 to 1, it seemed pretty clear that it was going to be in his favor.
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Mary McCord
True.
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Andrew Weissman
So that'll be the last thing. But it's also, it is good news in terms of the First Amendment and in terms of Mark Kelly individually. So, Mary, should we start with a brief recap of just what did Calais hold and now what's happening, you know, in this very brief, because we have
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Mary McCord
so many things to cover. But yes, go Redhead.
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Andrew Weissman
Okay.
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Mary McCord
In two seconds or less.
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Andrew Weissman
Andrew Weissman, well, so Kalei was a shit show.
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Mary McCord
Yes. There you go.
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Andrew Weissman
Very good.
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Mary McCord
Onward.
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Andrew Weissman
Next. So Kallay, in many ways, while it said it was preserving the Voting Rights act, almost completely dismantled it and made it virtually impossible, for the reasons we talked about last week, for somebody to challenge the reconstituting of a district saying that it is based on racial reasons, which you cannot do. And it made it very, very hard to say that this was done for racial reasons because the court said it is totally fine to do it for partisan reasons. And anytime that a legislature wants to mask true racial reasons, they can say it's for partisan reasons. And that way you won't be able to sort of unpack that. And then here's things that have happened since last week. They said this decision is now going to go into effect. Now, normally it takes about 30 days for the decision to become final, and there are all sorts of good, insufficient reasons that that's the normal process. But here they basically were like, no, no, no, no, no, green light, green light. We're gonna, we need this to come to effect now.
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Mary McCord
And just to be fair, they did not do that suispante. It was those in Louisiana who wanted to right away get new maps and pause the primaries. They asked the court to do that. And those who were objecting, of course, to any kind of new maps that might not provide for a second majority minority district filed their opposition to any kind of immediate application of the case, saying, we may file a petition for rehearing, for one thing, because normally the reason the Supreme Court's opinions don't go into effect immediately, as they do wait, in fact, they have a rule, Supreme Court Rule 45.3, that says we wait 32 days after an opinion to enter the judgment so that the parties, if they want to file a motion for rehearing, they can do so. And so, of course, the side opposed to this decision said, we are considering that. But more importantly, under Purcell, right, the Purcell principle, which we've talked about, but we can reiterate here today, any immediate effectiveness of this ruling that would pause the ongoing primaries, the scheduled primaries to which voters have already began to vote in Louisiana, comes far, far too close to an election. And under this court's own ruling in Purcell, federal courts like the Supreme Court should not be able to impact an election with a decision this close to the election. That's what was rejected. Right?
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Andrew Weissman
And the hypocrisy of this is that various states, in arguing Purcell, when they wanted to not have something go into effect, have Argued the opposite. So, you know, this is one goose, gander, gander, goose. So the states, when they didn't want something to happen quickly, have said, oh, no, no, no, no, we're five months out.
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Mary McCord
Right?
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Andrew Weissman
They can't possibly. Well, here in some states, the primary voting has actually started. And so this led to Justice Alito saying, look, we found in Calais that this is unconstitutional redistricting, so there shouldn't be a reason that this doesn't go into effect now. It led to Justice Jackson saying, we're changing the rules. This isn't fair. This isn't the normal process. And we're sort of deciding these issues once again on a sort of shadow docket way and meaning in a shorthand way, when these are big issues where we haven't really gotten the kind of argument and rules that we normally do and let's do things in the normal course of events sense, just to be fair. The Supreme Court, while it has this presumptive rule, they do also have the ability to essentially waive it if they think there's good cause. And so here the decision is now operative, meaning we are now seeing a race to the bottom in a whole series of states which are going ahead. And, well, actually, we can't even say what they're doing because it's very, very unclear in certain states, like, what on God's green earth is going to happen? What is happening, for instance, in elections where they started voting already and now it's like, wait, wait, wait, we want to redistrict. What are they going to do? When is there going to be an election? When is this all going to happen? So there is enormous chaos that is happening now. And of course, for lawyers and election lawyers specifically, it's like an all hands on deck. And also it's like full employment because there's going to be litigation up one side and down the other, precisely because of what I'll say, the principles of the Purcell Doctrine. Even if the Purcell doctrine, by its terms, doesn't necessarily apply to sort of state action. And what the states can do, it
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Mary McCord
is state action based on what the Supreme Court did, though. But you're right, states can do things close to an election without it violating Purcell. To your point about chaos, that was the first line of Justice Jackson's dissent from this decision. To abandon the rule that says you wait 32 days and to go ahead and say it's active now. Her first line. The Court's decision in these cases has spawned chaos in the state of Louisiana. Their primaries were scheduled to take place May 16. So there had already been mail in ballots, military and overseas voters and others who qualified to vote by mail, who had already mailed back their filled in ballots. But the very day after the Calais decision, the Louisiana governor issued an executive order suspending the May 16 primary again, just as early voting was beginning, pushing it back to July 15 so that the legislature could do a new map, a new map that does not provide for a second majority minority district, which that is now subject of litigation to your point.
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Andrew Weissman
Exactly. And we're seeing the same thing in Tennessee, South Carolina, Florida, Texas. All rejiggering is potentially on the table in all of those states. In Alabama, it's a little complicated because of prior determinations that there had been. Wait for it. Intentional racial discrimination. That there had been a finding of intentional racial discrimination. Alabama, in order to change its districting, would have to actually go back to the Supreme Court to get approval. And lo and behold, one of the sort of, I think strangest, and I'll be really interested in, Mary, what you think things that happened is that the Supreme Court, at Alabama's request, said, no, no, no, go ahead. You can go ahead and you can do what you need to do under our new Calais decision. But the dissent in that case, which I believe is Justice Sotomayor, it is
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Mary McCord
joined by justices Kagan and Jackson, says,
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Andrew Weissman
what are you talking about? Kallay wasn't dealing with a specific finding of intentional racial discrimination under the 14th Amendment.
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Mary McCord
Under the 14th Amendment, not just Section 2 of the Voting Rights Act.
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Andrew Weissman
That's exactly right. So, one, there was a finding, potential discrimination, which was not the case in Calais, which there's already been that finding. And second, the decision was not just a Voting Rights act case. It also said that it was deciding this based directly on a violation of the 14th Amendment. Calais didn't deal with either of those things. So one of the points that Justice Sotomayor says, and this is sort of a let's keep our eyes open. And she said, just to be clear, while the Supreme Court majority has vacated what we've done in the past and vacated the district court decision below, the district judge is free to reconsider how the factual record before the district court does or does not comport with K and what it wants to do in keeping with obviously the K decision, the district court can't just say, I'm ignoring that. But the two reasons that we just talked about the factual record being different and the legal basis being different are reasons that she was saying the district judge could still go Forward. But I think the writing's on the wall. Even though this is one where I was, I have to say, I can't say I was shocked. But if you want a sense that the Supreme Court is acting with a finger on the scale and acting politically, something that the Chief justice has just recently in the last week decried saying people don't really understand that we're not political actors, that decision in the Alabama case is one where I'm like, really? Well, if you're not political actors, why wasn't this decided in a fulsome way? Because these are really big differences between what happened in Alabama and what happened in Calais. And you're not even hearing the parties out on that.
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Mary McCord
I know we're trying to do this in a shorthand fashion just because it's extremely complicated. But I think with respect to Alabama, it is important to kind of go back and remember how we got to this place. We are right now. Right. Because this case, Allen v. Milligan, is a case that was decided in 2023 by the Supreme Court. The Supreme Court holding that Alabama had violated Section 2 of the Voting Rights act when it adopted congressional districting plan that unlawfully diluted black Alabamians votes by splitting them across multiple congressional districts. So what it did is it ordered Alabama to remedy this, identified racial discrimination by drawing a new map. Alabama drew that new map. Litigation ensued, the district court and Justice Sotomayor points that out, held an 11 day trial. I've tried most of the criminal cases that I tried in less than 11 days. Right. An 11 day trial, testimony from 51 witnesses, 800 exhibits considered volume upon volume of written submissions, and at the end of the trial concluded with great reluctance and dismay and even greater restraint. That's a quote. That Alabama had not merely spurned the opportunity to remedy past discrimination, but in fact had intentionally violated the 14th Amendment. And so that gets us to what you were just discussing, Andrew. What happened now is then that went up on appeal to the 11th Circuit that's been sitting there on appeal. But when Calais came down, those who wanted those old discriminatory maps ran to the Supreme Court and said, vacate, vacate this below based on Calais. And that's where the court, without really any explanation and no argument, and no argument, I miss one paragraph.
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Andrew Weissman
And so if you're thinking about the Supreme Court and you're thinking, okay, does the Chief justice have a point? Maybe we're jumping to conclusions too much. They are trying to ground their decisions in law and precedent. Are we jumping to conclusions? Well, this is a perfect example, an exhibit of making an assessment of, well, then why wouldn't you allow argument on this, the two issues that Mary and I are flagging. And by the way, you don't have to be a rocket scientist. This is not Mary and I being brilliant. These are obvious differences between the Alabama case and the Calais case and the idea that there wasn't going to be argument. So anyway, everyone keep your eye out for what happens at the district court level, whether the district judge says, well, I'm reinstating this because of the two reasons that we said, in which case, of course, there will be an appeal. And it'll be interesting to see just how quickly that gets back up to the Supreme Court, whether, as Justice Sotomayor said, that the Supreme Court seems to be on speed dial for the administration. But Mary, just to continue with your opening that this is like not a good news day, there's more, and this is not directly related to, to Calais, but there was a decision that's gotten lots and lots of press. That is another decision where a redistricted, what you called majority minority district was thrown out by the state Supreme Court in Virginia. And it was a 4 to 3 decision. So very, very close. And it's somewhat complicated on their ground. And I'm going to be interested in what you think about this, Mary.
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Mary McCord
I think yes, it is complicated, but I've spent a lot of time this morning figuring out how to parse this through. So shall we take a break and then come back and dive into that after the break?
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Andrew Weissman
Sure.
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Chris Hayes
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Andrew Weissman
is the end game?
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Mary McCord
We're right now in a situation where it's very difficult to understand what is real and what's not real.
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Mary McCord
Welcome back. So, as promised, let me take a little try at simplifying what the Virginia Supreme Court did.
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Andrew Weissman
Kudos to you because it's a little complicated.
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Mary McCord
It may fail. And then there's more because then we had an emergency appeal to the Supreme Court last night. So what the Virginia Supreme Court did, and you know it is the Virginia Supreme Court's authority to say what the law is under the Virginia Constitution. Again, 4 to 3 held that the procedure used for Virginia to redistrict by proposing a constitutional amendment and having the people vote on that constitutional amendment that allowed for the redistricting to create more essentially districts that would lean democratic, that that procedure violated the Constitution. They did not get into sort of like anything about whether there's anything unconstitutional like on the merits to these redistricting. It was all about procedure. And the procedure is under the Constitution of Virginia, any constitutional amendment has to first be voted on by a majority of the elected representatives to the Senate and House of Delegates in Virginia.
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Andrew Weissman
Can I just say, that vote is to propose the amendment.
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Mary McCord
That's right.
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Andrew Weissman
I'll call that the first vote.
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Mary McCord
That's right. It's to propose the amendment. And then here's what the words of the Constitution say. And if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be referred to the General assembly at its first regular session held after the next general election of members of the House of Delegates. So what that means is you get a proposal by a majority of the elected state legislatures before a whole nother general election where state legislators are going to turn over. Then after that next general election, if a majority of the elected officials votes to then put this amendment on the ballot for people to vote on, then it will be put on the ballot and then there will be an election, which we had in Virginia, I live in Virginia, we had that election in April. And if the voters then vote to adopt the amendment, the constitutional amendment is adopted.
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Andrew Weissman
So, Mary, just so people follow this, you have this unusual process because you have vote number one of the elected officials in Virginia to propose something, then the idea, presumably, and we'll talk about what the majority says about this, is that the people get to vote on their electors because presumably this is now an issue for the populace to decide so they know that this proposal is out there. Then you have the election of electors, and then you have the final vote of the electors and then it goes to the populace. If all of those are approvals. Now, what's a little weird is, okay, the majority says the problem here is that essentially the Democrats messed up, that they did this process while the voting was going on. And so just four days before this was actually going to have the final election day. And that you didn't have the temporal issue of if you thought that the law was supposed to be that the proposal is made and then before any voting can start, and then so that anybody who's voting knows that there's this proposed constitutional amendment. Well, here that didn't happen because voting had started, it didn't finish, but voting had started.
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Mary McCord
And can I just to be crystal clear on this, what you're talking about is the elected officials in Virginia proposing the amendment is supposed to happen before a general election and then happen again after the general election. When it happened was four days before election day of the general election, but that four days beforehand was during a period of early voting. Right. So everything for the majority came down to is the general election for purposes of that constitutional amendment, does that mean election day or does that mean the entire period of early voting plus election day, and they held the latter?
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Andrew Weissman
Yeah. And just to be fair, the idea being that for everyone who's voting, if you started voting on the very first day, that you could start voting, you didn't know about this proposal to have this constitutional amendment, you might have voted differently.
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Mary McCord
Right. If you'd have known.
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Andrew Weissman
Exactly. And so, Mary, your point is, it's not crystal clear in the Constitution that that's actually how you're supposed to read this. But my issue is where on God's green earth were the lawyers for the Democrats?
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Mary McCord
Yeah.
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Andrew Weissman
The majority opinion is not so outrageous and unreasonable. And it is, on its face at least, it is honoring the idea of that everyone should know about this at the time. So this is what I don't get. Why didn't the Democrats and the people who are in favor of this propose it earlier? Yeah.
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Mary McCord
You know what I have not had a time to do is, and you maybe know this off the top of your head is stack up all the dates. Right. Texas redistricting after Donald Trump said, why don't you redistrict to get more Republican districts then California. Right. Responding with its redistricting and those exact dates. This was all happening last summer. And then it takes a little bit of time to organize. And so by the time Virginia decides it's going to do this, we are in October. Right. So we're getting Very close to the election. And I agree. It's like, boy, it would have been a lot better if they had just done this before early voting started. I mean, they could have responded as quickly as California did, I suppose.
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Andrew Weissman
Right, exactly.
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Mary McCord
And there was a lot of controversy about this. And there still is. Virginia had voted not very long ago to have an independent redistricting commission because the vote voters in Virginia, and I support this myself, are like, we don't want any more of these partisan maps. We want independent redistricting commissions that will draw nonpartisan maps. That is a movement that had a lot of appeal in other states as well. And then what Virginia was saying with this particular redistricting that we're talking about is that is still our goal, that's still what we want. This is a temporary measure to counter what essentially Texas has done and some of the other, quote, unquote, red states have done.
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Andrew Weissman
Right. We're just responding.
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Mary McCord
That's right. So we're in such an extraordinary circumstance. But I agree the intent here was to let voters really decide, as the majority says, slow walk constitutional amendments, so they can't be just willy nilly put out there on the ballot. It's not a crazy reasoning. The dissent says, though, the problem with that is that the Virginia constitutional simply says the amendment gets proposed by a majority of the members elected to the two houses and then it shall be referred to the general assembly after the next general election. So the question is, what is general election? And they look to terms from federal law. Right. On election day, they look to lots of other statutes that sets an election day. And they don't have a crazy textual argument. They have a reasonable textual argument. This is not one where I think you or I are like, one side is definitely wrong and the other side is definitely right. Right.
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Andrew Weissman
Yeah. But I just want to make sure, because the press has been so critical of the majority and the Democrats have. Because the effect of this is so devastating, I sat down to read the decision. I thought, well, I was sort of expecting the majority opinion to be off the wall and it wasn't. And it was also grounded in informed decision making. Now I could see the other argument. I mean, it's not like you read the dissent and say that's crazy either.
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Mary McCord
Yeah, that's my point. It's very textual. They both have some merit to them.
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Andrew Weissman
Absolutely. So this is now wended its way in about a New York minute to mix our states to the Supreme Court of the United States. And Mary, I'm going to give you a prediction.
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Mary McCord
You're going to go out on a limb here, aren't you?
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Andrew Weissman
Yeah. The Eastern District of New York. There was this wonderful judge, Judge Bramwell, who used to say, I have two words for you. Denied.
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Mary McCord
Yeah, I think it's very unlikely. I will say to those out there scratching their head, saying, didn't you start out by saying that the state Supreme Court has the prerogative and the authority to say what the law is under state law? Yes, that is true. So ordinarily, a state supreme court's interpretation of its own state constitution would not be something that the Supreme Court would ever entertain. Virginia, when it ran to the Supreme Court last night, is arguing that because the state Supreme Court predicated its interpretation of general election on a misreading of federal law, and that's a case that was cited by the majority about an election meaning sort of the early voting period culminating on the date of election Day, they say that that is a misreading of federal law, that federal law expressly fixes a single day for the election. And that's why the US Supreme Court can hear the case. And then, moreover, relies on a theory that I really kind of hate that was rejected by the Supreme Court a few years ago, but with a caveat, which is this idea of, and they don't really say these words, the independent legislature theory, but it's really the idea that by rejecting the plain text of the Virginia Constitution's definition, the term election, to adopt its own contrary meaning, this is in the words of Virginia, the Supreme Court of Virginia transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate elections. And that's based on the exception from Warby Harper, an exception in a case the Supreme Court a few years ago rejected an argument that the state legislature has plenary authority over the manner and means of elections in the state. And the constitutionality under state constitutional law can't even be adjudicated before a state supreme court. Supreme Court rejected. That said state supreme courts can adjudicate state constitutional issues, even issues related to the state legislature's authority to set the rules for elections, with a caveat that if what the state supreme court does so, and this is a quote, transgresses the ordinary bounds of judicial review, that essentially it's arrogating to itself legislative power that can be reviewed. That's really what Virginia's arguing. They're saying here this is a state legislative decision. The state legislature went through the process under the Constitution and by the majority saying no to that process on the grounds that it did. It was substituting its legislative judgment for the state legislatures. And that's why the Supreme Court should review it.
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Andrew Weissman
There's a lot more to say about this because this may seem super arcane, which is like, can state courts have power over state legislatures? And can the federal government weigh in on that is one that had huge implications several years ago and could still have huge implications. And so it's one where when I read that that was in the brief, I was like, I know, because it's so not going to win. And you just keep on wondering whether the Supreme Court's going to use it as a vehicle for mischief while they're on a roll of making mischief. But this is one where there is this application pending. I think it's extremely unlikely to succeed. I assume it was brought because the legislature wants to be able to say, we've tried everything, like we went as far as we could and the court stopped us.
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Mary McCord
And it's not crazy. It's just one of those you hold your nose when you're relying on that theory. I really worry about if the court were to accept it, which I don't think it will, what that does to
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Andrew Weissman
the law going forward, because state judges actually are a useful check on the things that can be really impermissible that are being done by state legislatures. That's why Mary and I are in the weeds on this one, because this is a goose gander issue. Even though here you may not like the result of what the Virginia court did. You don't hear Mary and me saying, oh, but that's because they don't even have the authority. There's a good faith dispute here as to whether they made the right call, but it's not because we think that they don't have the legal ability to do it. And we really don't want to go down the road because the courts have actually been a useful check on improper legislative action at the state level. So, Mary, there's more.
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Mary McCord
There is more. These are so complicated today. And hang in there with us, folks. We're trying to break them down. And they're all long opinions, too. Not like 200 pages, thank goodness, but still in the significant double digits. So should we talk about Fulton County?
- [32:40]
Andrew Weissman
Yes. So people may remember that Fulton county was trying to get its ballots back. The United States had a search warrant. The magistrate judge signed it. The federal government went in and took the originals, all copies, the originals of the ballots. And so all of the ballots right now are with the United States government and Felton county came in with a motion and said, we want them back. And I think as an alternative, they said, at the very least, we want a copy back. In other words, this is something that can be duplicated. And so you could actually split the baby. But in any event, the initial request was give us back the originals, because, one, there was no probable cause. It was wrongly taken because the magistrate judge messed up, because there was not probable cause. And two, even if there was, this was done with callous disregard. That's the key language from a case called Richie. The Richie factors. People really in the weeds with us will remember that this was way back when Trump was trying to get his own documents in the Mar A Lago case.
- [33:56]
Mary McCord
That's right.
- [33:57]
Andrew Weissman
He filed a motion for return of property. The same circuit was talking about the Richie factors and said, the Richie factors don't allow and do not support President Trump getting them back. And here, the district judge had to deal with those two issues.
- [34:14]
Mary McCord
And just to be clear, because we. You talked about probable cause. What Richie says, it's. It's not good enough just to say there was no probable cause. I get my documents back, my ballots back. You have to show that your rights as the petitioner here, that's. It's Fulton County, Your rights were callously disregarded, either through that lack of probable cause or in this case, they argued, omissions in the affidavit, the manner of execution, all of these things showed, tell us, disregard for rights. And I think that's important because the district court here, in rejecting Fulton County's motion, didn't say, I think that the search warrant was fine, the probable cause was substantial, that, you know, were no problems with information being omitted.
- [34:58]
Andrew Weissman
Weren't you struck by that, Mary? Yes, I was really struck that the district judge here did not say, I agree with the magistrate. There was probable cause here. In fact, at times, he says that he's quite worried about some of the representations and omissions in this and questions ones. For instance, his example in one of the footnotes was saying, if you read the affidavit that was presented by the FBI to the magistrate judge, it gave the impression that at time one, the Fulton county had X number, and then suddenly the next day Y number, thousands and thousands more appear. When he said, well, if you look at the actual facts, when X was being represented at Time 1 by the Fulton county, they said, this is not. We haven't finished counting.
- [35:50]
Mary McCord
Right.
- [35:50]
Andrew Weissman
And so it gave the impression that at time two, they just magically Appeared because they said they'd finished counting at time one when they actually had said exactly the opposite. And he said he was troubled by that apparent misrepresentation. I agree that that is what Richie says about if you don't have probable cause, but it has got to be wrong if there is no probable cause, if these were taken by the state and there is no probable cause to have taken them, then you need to return them.
- [36:22]
Mary McCord
I agree.
- [36:23]
Andrew Weissman
And this is why right now, today, there is a seizure of those ballots. The seizure started when they went in and took them. But the seizure under the Fourth Amendment is continuing today as we are recording this. Mary. So what I would say as a judge is what is your legal basis today to hold them? I'm not saying that you should be fined. I'm not saying that you did something wrong unless there was an intentional lie in the affidavit or attention on misrepresentation. I'm just talking about, do you have the legal authority to hold them now? And if there is no probable cause, you have no basis to hold them. They are someone else's property. So to me, I think you have to make the decision about is there, is there not today probable cause, and if there isn't, you have to return the property.
- [37:18]
Mary McCord
And it's really an argument that Richie has wrongly decided on that issue. And I'm with you. Yes. Because this judge and I, he says, I'm quoting, while the affidavit was certainly far from perfect, this is not a situation where an officer left out all the facts that might undermine probable cause or where an officer intentionally lied. That shouldn't be the standard. But that's him applying this callous disregard framework. And he says the court cannot say the affidavit was so deficient that its shortcomings rise to the high threshold of callous disregard. But if they don't rise to probable cause, I don't think it matters whether it was in callous disregard or not. But part of the reason I think that this is slightly different is I think you and I think so much about you would not be able to use evidence seized without probable cause in a criminal prosecution.
- [38:06]
Andrew Weissman
Right.
- [38:06]
Mary McCord
You'd file a motion, if you're the defendant, you'd file a motion to suppress. And if there was no probable cause to seize and no good faith exception or something, it would be suppressed here. There is no criminal prosecution happening right now. There's nobody who can have that remedy. And that's why the remedy that the county is seeking is return these. You have no right to them. And that's where the callous disregard standard comes from in this different context than trying to use it against somebody. And I think it's also why you and I probably are so offended by it, because we come from a criminal prosecution background where this just shouldn't be used and they shouldn't have it.
- [38:39]
Andrew Weissman
Yeah. So, I mean, I agree with you. But I also think one of the things that's happening in Fourth Amendment law, it used to be that the Supreme Court, in considering whether there is a proper search and seizure, look only at time one, at the moment of the seizure, was their probable cause. And it is only in the last decade that people are really looking at what has happened after that moment, what is sort of the continuing problem. And what used to be called and still at times is called back end problems after that time one. Here we're in time two, which is way after. But you still are seizing at time two. And so you still have a Fourth Amendment issue. And that's why Richie, I think, was really very much focused, which the law was at the time only focused on time one, but it's not recognizing the problem. At time two, the court can say, you know what? The magistrate blew it. You were right to seize it initially, assuming that there was no lies or omissions that were material. But at time two, I'm finding that you don't have probable cause, so you have to return it because you have no basis. There's literally no basis to hold it. So personally, I think they should be appealing, and I think this is a good point. The other is I had real problems with the determination that there wasn't callous disregard here. And I think that comes from the fact that you and I have been prosecutors. We have seen things that get presented to court. And if somebody had presented to me the affidavit from the FBI and I knew the full facts, I would have been going, you need to flesh this out. The fact that you drop a hint or a note of 10 things that undermine a fact, you put in one. And I felt like the judge was bending over backwards to say, well, they did say this and they did say that, and here's this other little thing, but that's not really the full picture. And so I actually really thought that this maybe goes to our view of the presumption of irregularity that's going on, which is that I kept on thinking about the standard I apply now, which is, what would Mary McCord have said about this affidavit? If somebody presented to her. And there's nothing, a snowball's chance in H E L l that Mary McCord would sign off on this and not because there's a close call. You would have been like, no way, no how. Flesh this out.
- [41:15]
Mary McCord
Yeah. At least would have gone back and forth and ask a bunch of questions like, you got to provide me something more. Because my recollection from publicly available information that is supported by judicial rulings is that all of these different allegations of election fraud were debunked. But, yes. Okay, we're getting triggered here, and we should. We should take a break and then we should come back and we have some good news. Yes, we have some good news, but I really think when it comes to elections in this midterm year, it's hard to imagine a worse couple of weeks than what we've just seen.
- [41:50]
Andrew Weissman
Everyone, stay tuned. Come back, because we do have some good news.
- [41:55]
Mary McCord
Foreign.
- [42:03]
Chris Hayes
Is moving very, very fast, and it's raising new questions just about every day about what it is, what it isn't. When all is said and done, what
- [42:10]
Andrew Weissman
is the end game?
- [42:11]
Chris Hayes
I'm Chris Hayes, and as part of my podcast, why Is this Happening? I'm speaking with leading experts each week to help ground that conversation.
- [42:17]
Mary McCord
We're right now in a situation where it's very difficult to understand what is real and what's not real.
- [42:23]
Chris Hayes
Why is this Happening? The AI Endgame, a special miniseries from Ms. Now. Start listening today, wherever you get your podcasts.
- [42:36]
Mary McCord
Welcome back. So before we talk about Senator Kelly's case and the oral argument last week, we do want to just make sure people understand what is happening in the prosecution of James Comey. He was originally scheduled to yesterday have his first appearance in court in the Eastern District of North Carolina, which is where he was indicted. Where normally at that first appearance, you either plead guilty or not guilty. Here would of course, be not guilty, and you set a schedule. But since he had already appeared up in the Eastern District of Virginia, where he lives, after he was originally indicted and actually summoned with an arrest warrant, he turned himself in. He had an appearance there. He and the government both agreed that he would not need to appear in the Eastern District of North Carolina. So that did not happen yesterday. But what the court did is just issue an ordinary scheduling order. And when you look at this, you can tell that this is something that is just a matter of course. And many judges do this. They have a standard scheduling order in criminal cases to make sure they comply with the Speedy Trial act, because the Speedy Trial act requires that people go to trial within a certain number of days after they are indicted, unless there are exclusions or tolling of the time under the Speedy Trial act based on motions that are filed or other things like that. So what the court did is said, look, we calculated what the speedy trial deadline would be based on the date of the indictment. And that speedy trial deadline means we need to set a trial by July 15th. So we're setting it July 15th. And then she ordered other things like a pretrial conference on May 29th and all pretrial motions filed by June 5th. 5th. And all responses by June 15th, etc. So what this means is not necessarily that there will be a trial on July 15. There might be, but if James Comey files motions such as a motion to dismiss on the grounds that this prosecution is brought vindictively or selectively, or a motion to dismiss on the grounds that his conduct is protected by the First Amendment or other motions, motions to suppress evidence, other motions, those motions have the effect of stopping that speed of Trial act and could then result in the trial date being pushed later. Now you and I have talked. I think it probably is to James Comey's benefit to get an earlier trial rather than a later trial because this is such a ridiculous and stupid case that I think the jury will see for exactly what it is. On the other hand, it is very important, I think and if I were him, I would want to have the court adjudicate a vindictiveness motion.
- [45:16]
Andrew Weissman
A vindictiveness and also just a straight out. This violates the First Amendment. And so I think we're going to see both of those. And I agree with you that unlike my view of what the Atlantic should be doing of the Cash Patel defamation civil suit, I can totally predict here and understand why there will be those kinds. Exactly. Those motions that you said. Okay, on to the good news.
- [45:38]
Mary McCord
Yes.
- [45:39]
Andrew Weissman
So Senator Kelly had a win at the district court level in connection with staying Pete Hegseth's effort to censure him and take retaliatory action for the Gravamen of which was based on the video that you talked about at the outset with the six members of Congress saying that you do not have to and in fact you have a duty to not follow illegal orders. We keep on stressing illegal. And Judge Leon ruled in Senator Kelly's favor and the government of appealed and that was heard last week by a three judge panel. It was somewhat unusual because the judges seemed very open with what they thought.
- [46:24]
Mary McCord
Yes.
- [46:24]
Andrew Weissman
And so that's why it seems pretty Clear, unless they rethink that, it's going to be at least 2 to 1
- [46:31]
Mary McCord
in Senator Kelly's favor.
- [46:33]
Andrew Weissman
Exactly. To affirm. And there was terrific, terrific questioning by the two who were signaling their problems with the case. One of the things that I thought was a very interesting and important line of questioning was to the government saying, what order specifically are you saying that the senator was saying should not be followed? So 1. When did he say that? And what order are you referring to? Like, what specifically are you saying that was directed by Dodd, that he said, do not follow.
- [47:12]
Mary McCord
That's right.
- [47:12]
Andrew Weissman
And so they had a real problem identifying anything. They kept on saying it's the gestalt. You know, that's me. That sort of doesn't cut it. And obviously a lot of discussion about the First Amendment and that he had said, as we've been stressing, he was talking about illegal orders, not legal orders.
- [47:30]
Mary McCord
And that's just pause there for one second because that's another, I think, big issue that the two had. And even to a certain extent, Judge Henderson, who answered questions actually in unusual way. And we'll get to that. But I think that's the other piece. One is like, point to an order that he said they should violate, and the other was point to any time that he said you should violate lawful orders, because the only thing that they could find in the record was, and the only thing that was in that video was that you have an obligation not to follow unlawful orders, illegal orders.
- [48:00]
Andrew Weissman
And that's maybe a good segue to Judge Henderson, who said, look, if the case. At one point she says something revealing. She goes, if the case were just about the video, she says, I may agree with the other two judges if it was just about the video. But she essentially is operating on a different factual record. She says, I am looking at more than the video. I am looking at also a press conference where Senator Kelly says, we may be trying to head them off at the pass. And she says, I am interpreting that as both being in the record and that the Department of Defense had taken this action in part based on that statement in this press conference, not in the video, of which, by the way, there's nothing in the record to say that's true and that I'm interpreting. Judge Henderson says that presser as being absolutely and only consistent with you should violate a lawful order. Order to send the National Guard to State X. And it couldn't mean anything but violate a lawful order. So that's what she's reading in from this press conference.
- [49:17]
Mary McCord
Yeah. And you actually, I think, gave her a little credit there in suggesting that she had a banter with her colleagues about how she interpreted the press conference. The way it came up is as the other two judges were pressing the government attorney point to something in the record that shows that Senator Kelly urged people to disobey lawful orders. She did not give the government a chance to respond. Judge Henderson piped up and she did this more than once and said, it's right here at this press conference where Senator Kelly said, we look forward to try to head something off at the past. And I want to bring up the context of that. But that was the first really unusual thing to me. It's like, wait a minute, why don't you let the government respond before you jump in? And one time I could see if it's really obvious something in the record, but multiple times, and the other judges were looking, tell me what page. And she would tell them what page? And they would go to that page and they would say, I don't see this on that page. Well, I did look up the transcript from that press conference and you probably.
- [50:18]
Andrew Weissman
So did I. Exactly, Andrew.
- [50:20]
Mary McCord
And here's what was happening. Senator Kelly was getting asked questions about the boat strikes, right? The strikes on the drone strikes, on alleged drug running boats in the Caribbean Sea where without any authority, the military was killing people alleged to be drug runners. And he's asked about, are these the kind of things you're talking about when you posted the video telling members of the military they needed to feel okay to disobey orders that they felt were illegal? And so Senator Kelly addresses that piece of things, but then he describes a little bit more what he's talking about. He says, let me give you an example. 2016. So we're back in. Before even his first term, he's talking about something on a debate stage that was clearly illegal. And he was reminded by Brett Baer from Fox News that that would be an illegal order. Military won't do that. You know what the president's response was to that? Quote, the military will not refuse my orders, unquote, implying that even if they are illegal, they will not refuse them. He's also talked about shooting protesters in the legs. Then he's talked about deploying more troops to American cities and using those cities as training grounds. Do you know what that means? That means using the American people for the military to train on. So we are looking forward to try to head something off at the past that could have been really, really bad. So it wasn't about this specific Thing meaning the drone strikes. Yeah. That is Senator Kelly's response. That is a transcript of his response to what do you mean by illegal orders? His example is the President talking about deploying troops to American cities and using those cities as training grounds. Remember the context of that? Training grounds for combat operations overseas. And that's when he says, do you know what that means? Using American people for the military to train on. We're looking forward to try to head something off of the past that could have been really, really bad. So even this notion that Senator Kelly was talking about a lawful order there, that's not at all what he was talking about.
- [52:15]
Andrew Weissman
Exactly. That's why. And again, there is a great piece in Just Security laying this out. It's by Ryan Burke. B U R K E We can put it in the show notes. And this is one where it's going to at best be 2 to 1. But I really hope that Judge Henderson or her law clerks read that piece. They don't have to take it from us on this podcast because it's one where even if it were in the record, what this press conference, and even if this press conference was what was in the head of the Department of Defense at the time that they issued this retributive action against the senator, which again is not at all clear that that's correct as opposed to this is like an after the fact effort to justify it. But the point that you made is the point that's teased out by Ryan Burke in Just Security, which is that if you actually go to the press conference that Judge Henderson's talking about, it doesn't support. That's right. The position. So this is a stretch on a stretch on a stretch. As we said, it may not matter because it may be 2 to 1 anyway, which would still be a victory for the Senator. But it'd be really nice because if Judge Henderson, who is a very experienced judge.
- [53:28]
Mary McCord
Right.
- [53:29]
Andrew Weissman
And I do think is going to care about the facts in the law, took a second look at what's going on. But it was wonderful to hear the judges. I will say one positive thing about the government. I thought that the lawyer for the government at least handled himself very well in terms of being respectful and I couldn't see doing that. But at least it was within the realm of the normal in terms of things that we've seen.
- [53:54]
Mary McCord
I agree with.
- [53:55]
Andrew Weissman
It was a real argument and at least it made me feel like there was some normalcy in the world because there is this issue that when you are in the military, you don't have the same First Amendment rights as people who are not in the military. And so the open issue is, well, what do you do with somebody who
- [54:13]
Mary McCord
is retired and an elected member of Congress.
- [54:17]
Andrew Weissman
Yes. Yeah. So there's it pulls in different ways. Retired but can be called back. So it's still in the military, but not in active service. But is also a member of Congress.
- [54:27]
Mary McCord
Right. Not in anybody's chain of command, but also a member of Congress where he has a duty to speak out on issues of public concern. That's what he was elected to do.
- [54:34]
Andrew Weissman
Exactly. I was surprised that didn't come up more in the oral argument. But this is probably now we are really. We could.
- [54:40]
Mary McCord
We're nerdy guys geeking out here.
- [54:43]
Andrew Weissman
But look, that was good news.
- [54:44]
Mary McCord
Yes.
- [54:45]
Andrew Weissman
And we'll keep our eye on what the court does. We'll certainly report back to you all. Mary, nice to see you. And I think next week we're going
- [54:54]
Mary McCord
to be together in the same room.
- [54:56]
Andrew Weissman
We're going to be recording in the same room. And I think if all goes well, I might have to really clean up.
- [55:03]
Mary McCord
Yes. Because that video might get posted onto YouTube.
- [55:06]
Andrew Weissman
So I think we're going to do it.
- [55:07]
Mary McCord
It'll be fun.
- [55:08]
Andrew Weissman
Yes. So thanks everybody for listening. Remember, you can subscribe to Ms. Now Premium on Apple Podcasts to get this this show and other MSNow Originals ad free. You'll also get subscriber only bonus content. We're also available on YouTube, as you all know. Head to Ms. NOW Main justice to listen.
- [55:32]
Mary McCord
This podcast is produced by Vicki Vergolina and Donnie Holloway. Nicholas Vinuela Yodar is our associate producer and Colette Holcomb is our intern, our audio engineer. Our engineers are Bob Mallory and Mark Yoshizumi. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [55:53]
Andrew Weissman
Search for Main justice wherever you get your podcasts and follow the series.
- [56:15]
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