Podcast Summary: Main Justice — "Ending the Year with Good News"

Hosts: Andrew Weissmann & Mary McCord
Date: December 31, 2025

Overview

In this special year-end episode of Main Justice, Andrew Weissmann and Mary McCord embrace a rare upbeat tone, focusing on a series of significant legal decisions representing positive developments for the rule of law. As Trump’s second administration brings ongoing legal and constitutional tests, the hosts break down four cases where the courts have upheld rights, processes, and constitutional norms—even as governmental overreach continues to be a central concern. The episode’s tone is measured, analytical, and at times wry, as both hosts reflect on the high stakes and small victories in tumultuous times.

Key Discussion Points & Insights

1. The Supreme Court and the National Guard Deployment (00:57–18:59)

Background:

• Trump administration sought to federalize and deploy the National Guard in Illinois and Chicago.
• At issue: Under Title 10, Section 12406(3), can the President deploy the Guard before proving the regular military can't "execute the laws"?

The Supreme Court Decision:

• The Supreme Court denied the government's motion to stay the lower courts’ injunction against Guard deployment.
• "Regular forces" means regular military forces. The President must show he can't execute laws with the military before calling up the Guard.

Notable Quote:
“We conclude that the term Regular forces in 12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active Federal Service… the President must be unable with the regular military to execute the laws…”
—Mary McCord, reading from the opinion (09:51)

Analysis:

• Emphasizes Posse Comitatus Act limitations.
• Majority opinion suggests lack of executive authority for such federal deployments absent statutory or constitutional justification.
• The court’s approach leaves open the use of the Insurrection Act, but that remains highly challengeable and politically risky.

Kavanaugh's 'Redemption Footnote':

• Justice Kavanaugh inserted a clarifying footnote (Footnote 4) distancing himself from prior language on immigration stops, affirming that racial profiling cannot justify such stops.
• “I call this the redemption footnote.” — Mary McCord (07:29)

Memorable Moment:
Andrew: “That is sort of the cherry on top this week.” (08:13)

Dissenting Opinions:

• Justices Alito, Thomas, and Gorsuch objected on procedural grounds, chiding the majority for acting on arguments not directly raised by litigants.
• The hosts critique this as inconsistent with their own prior conduct and legal norms.

2. Judge Boasberg and Constructive Custody in the “JGG” Case (20:52–38:59)

Background:

• In March, the U.S. expelled over 200 mostly Venezuelan detainees to a detention center in El Salvador, under the Alien Enemies Act, without any due process.
• Plaintiffs denied notice, a hearing, or a chance to contest their detention or removal.

Judge Boasberg's Ruling:

• Found that the U.S. maintained “constructive custody” over these individuals, even after their transfer out of the country, thus granting habeas jurisdiction.
• Class certified for all those removed on March 15; government must provide due process.

Notable Quote:
“Nine months ago, six Venezuelan men were hustled out of a detention center in Texas, loaded onto planes, and shipped to an infamous megaprison in El Salvador with no explanation and no opportunity to challenge the reason for their hasty removal… Our law requires no less.”
—Judge Boasberg, quoted by Andrew Weissmann (24:22)

Key Insights:

• Judge Boasberg reversed an earlier factual call, giving more weight to evidence showing El Salvador was acting as an agent of the U.S.
• The U.S. orchestrated, financed, and controlled the removals and subsequent detentions.

Aftermath & Consequences:

• Plaintiffs, now returned to Venezuela, suffer ongoing collateral harms—barred from U.S. entry, ineligible for asylum, and labeled as terrorists.

Critical Question Raised:
Andrew: “Do you think this would happen if we were talking about rich, well-heeled white people who were illegally removed and stuck in a prison… after a 9-0 Supreme Court case said due process was violated?” (35:47)

Mary’s Response:
“The whole treatment of Venezuelans… the treatment of migrants… it’s hard not to have a racial overlay to it.” (36:46)

Next Steps:

• Government to propose a means of providing due process, but expected to appeal and seek a stay (35:21).
• Venezuela’s cooperation is uncertain given geopolitical tensions.

3. Vindictive and Selective Prosecution: The Abrego Garcia Case (46:11–54:14)

Background:

• Abrego Garcia, among those removed, was later returned for criminal prosecution in Tennessee.
• Defense alleges prosecution is vindictive: the charges were revived only after he successfully challenged removal.

Recent Ruling:

• Judge postponed the trial to hold an evidentiary hearing on vindictive/selective prosecution.
• Discovery was granted into the reasons for bringing charges; defense sought to subpoena top DOJ officials.

Significance:

• Establishes presumption of vindictiveness, requiring the government to directly rebut—if not, charges may be dismissed.

Process Explained:
“Once a defendant can establish what’s called a prima facie showing of vindictiveness, then a presumption arises in the defendant’s favor… The government [must] rebut the presumption… with objective on-the-record explanations…”
—Mary McCord (48:18)

Broader Context:

• The case underscores themes of selective prosecution, retaliation, and the breakdown of the presumption of regularity.
• Timing of the charges—nearly 900 days after the precipitating event and soon after Garcia’s court victory—raises red flags.

Memorable Moment:
Mary: “The timing is a big, you know, billowing red flag…” (53:39)

4. The Mark Zaid Security Clearance Case and Blacklisting of Law Firms (38:59–46:09)

Background:

• Following executive orders targeting law firms and attorneys perceived as adversarial, several legal professionals had their security clearances revoked en masse.
• Mark Zaid, a national security lawyer, sued alleging First Amendment and due process violations.

Decision:

• District court enjoined the summary removal of Zaid’s clearance, finding no individualized assessment or due process.
• The opinion mirrored prior decisions favoring law firms similarly blacklisted.

Notable Quote:
“The problem here is… there was no individual determination. It was just a blanket assertion that had nothing to do with national security, essentially saying it was just vindictive…”
—Andrew Weissmann (41:30)

Chilling Effect on the Legal Profession:

• Other firms capitulated to administration demands or withdrew from representation to avoid becoming targets, illustrating broad deterrent impact even when government loses in court.

Mary Emphasizes:
“What is judicially reviewable is did you get any process at all, any individualized assessment… Mark Zaid got no process at all…” (43:09)

Notable Quotes & Moments (with Timestamps)

• “This is going to be an uplifting show. It's not uplifting in terms of what the government tried to do. It is uplifting in terms of the court.”—Andrew Weissmann (01:24)
• “I call this the redemption footnote.”—Mary McCord (07:29), on Kavanaugh's clarification.
• “Our law requires no less.”—Judge Boasberg, quoted by Andrew Weissmann (24:22).
• “I don't think this administration would have ever removed those rich white business people to begin with… The whole treatment of Venezuelans, the treatment of migrants… it's hard not to have a racial overlay to it.”—Mary McCord (36:46).
• “I think it's a scathing loss. Maybe it'll get appealed, but the record is, I think, really terrible in this. And frankly, in the cases involving the law firms.”—Andrew Weissmann (42:10).
• “The timing is a big, you know, billowing red flag…”—Mary McCord (53:39).

Timestamps for Major Segments

• Episode Theme and Overview: 01:02–02:01
• National Guard Supreme Court Decision: 08:21–18:59
• Judge Boasberg “JGG” Decision: 21:22–38:59
• Mark Zaid & Law Firm Blacklisting Cases: 38:59–46:09
• Abrego Garcia Vindictive Prosecution: 46:11–54:14

Tone and Takeaways

• The episode is cautiously optimistic: While acknowledging ongoing governmental overreach, the hosts celebrate rare judicial victories for constitutional rights and due process.
• Repeated themes of rule of law, racial justice, due process, and the chilling effect of executive intimidation strategies.
• The hosts’ tone is frank, seasoned, and occasionally acerbic, grounded in their prosecutorial backgrounds but deeply concerned for constitutional norms and justice.

Final Thoughts

Both Weissmann and McCord underscore that while these developments are victories, the broader struggle for constitutional integrity continues in the face of continuing executive abuses and pressures on the legal system. Their closing wishes—“Have a wonderful New Year… wishing you all a very happy New Year and a very fulfilling 2026…” (54:14)—sum up both relief at the year’s close and vigilance for the challenges ahead.

This summary captures and contextualizes all major legal topics, judicial decisions, and notable commentary in the episode for listeners seeking a comprehensive, accessible account.