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Main Justice
Ending the Year with Good News
00:54:06
The Supreme Court blocks Trump’s effort to deploy troops into Chicago. Plus: A federal judge says the U.S. owes deported Venezuelans due process.
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- [00:00]
Mary McCord
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Mary McCord
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Andrew Weissmann
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Mary McCord
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Andrew Weissmann
You taken care of. Start your day with the MSNow Daily Newsletter. Sharp insights from voices you trust, standout moments from your favorite shows, and fresh perspectives from experts shaping the news. Sign up at Ms. Now. Hello and welcome back to Main Justice. It is surprisingly, since we weren't sure we were going to do this last week, Tuesday morning, December 30, New Year's.
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Mary McCord
Eve Eve, the eve of New Year's Eve.
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Andrew Weissmann
I love it. Eve Squared or whatever. Anyway, that was Mary McCord and I'm Andrew Weissman. We said last week we weren't sure that there would be enough news or anything going on. Well, this being the second Trump administration, we kind of just had to do the show because there's so much that happened. But Mary, one thing that I think is great, it's kind of a gift for the end of the year because we have spent the year with so much news and it really wasn't great news. It was difficult. And this is a great show because we are going to talk about a series of legal decisions that are positive developments. 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. Up to the very top. Mary, with that is the intro what is on our dance card.
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Mary McCord
It's so interesting because right. We recorded a day early last week on Monday and then bam, Tuesday, Wednesday, including Christmas Eve day, we had lots of judges and justices that clearly wanted to get some opinions out before the holiday break. And they did. And those were important opinions. And one is an opinion we've been working, waiting for from the Supreme Court for months now, and that is with respect to the federalization and deployment of National Guard troops in Illinois and Chicago and the Supreme Court. Spoiler alert. And by now everybody knows this because it's been a full week. They said regular forces means with the military. President Trump, you didn't try to do this with the military. We are denying your motion to stay the injunction against that federal deployment. We will talk about that. We also had Judge Boasberg in the D.C. district Court issue a ruling on something that goes way back to March, a ruling with respect to the ability of those who were summarily expelled, removed from the United States, allegedly because they were members of trend, under the auspices of the Alien Enemies act, to a terrorist detention center. They are finally getting a ruling that says that they are entitled to due process. They're entitled to hearings to challenge their removal under that act. And we had the federal judge in the Abrego Garcia case, another person who was on those planes in March that expelled people to El Salvador, he was brought back to the United States to face criminal charges. But the judge, who was supposed to be having a trial starting at the end of January, has postponed that trial because he wants a full evidentiary hearing on the motion to dismiss the case outright on grounds of vindictiveness. And so we have talked about all of these cases at various times, but now we have rulings.
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Andrew Weissmann
Right. And there's more.
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Mary McCord
And there's more. That's right. We talked a lot back, I guess in the spring, early summer, I can't remember exactly when. When the president tried to blacklist a bunch of law firms, and several of them sued and said, you're violating our First Amendment rights, our due process rights, et cetera. And four judges in quick succession enjoined those efforts to blacklist those law firms and strip their attorneys of security clearance, bar their access to federal buildings and working on federal contracts, et cetera. Those cases are on appeal. But something else happened at the same time, which is that the president ordered various individual lawyers to have their security clearances stripped. And one of those lawyers is Mark Zaid. He's a national security lawyer. This is what he does. So he relies on his clearance. And he also sued, alleging a lot of the same grounds that the law firms had, alleged First Amendment retaliation, due process violations. And he got an injunction from the District Court last week against this summary removal of his security clearance. So we'll talk a little bit about that. So, like you say, Andrew, four important and positive developments, including, I'd put right at the top of that from the U.S. supreme Court, one of the rare losses for the Trump administration this year.
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Andrew Weissmann
Can I add one more thing?
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Mary McCord
Sure.
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Andrew Weissmann
Justice Kavanaugh, in the decision, word about to talk about drops. Footnote four.
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Mary McCord
Yes.
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Andrew Weissmann
Which I immediately added to my criminal procedures syllabus.
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Mary McCord
Yep.
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Andrew Weissmann
Because it is just fascinating. Apropos of nothing in the case, he says, essentially, by the way, if you've been misinterpreting what I said about immigration stops in California, which have been euphemistically called Kavanaugh stops, because he seems to sort of have a separate standard for what are called Terry stops, which we've talked about a lot in the past. He says, ah, I didn't really mean it, but I want to make it clear what the law is. I do think one thing he might be reacting to is not just the reaction publicly to his decision, but we talked about Judge Howell's terrific decision where ICE was completely misreading what he had said and was using it to say that you don't need probable cause to do an arrest. Which, to be fair, that is not what Justice Kavanaugh was saying. But he issues in this footnote as sort of clarification. But I. I would say we have these four big wins. And Justice Kavanaugh saying, like, just to be clear, I didn't really mean this.
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Mary McCord
I call this the redemption footnote. And the case that Andrew is talking about, of course, is the Perdomo case out of California, where there had been a motion for a stay in the Supreme Court, and the Supreme Court stayed an injunction against stops that were based on factors such as, you know, did you appear to be of Latino or, you know, other ethnic descent? Were you speaking a foreign language or speaking English with an accent, or were you engaged in a job, like day labor, and where is it that you were working? Because that might be indicative that you're a, you know, a migrant and might be here unlawfully. That had been enjoined as basically a type of racial profiling. The Supreme Court stayed that injunction. And Justice Kavanaugh wrote this concurring statement that you're referring to, of course, Andrew, where he suggested. Not just suggested, he said those four things are good enough.
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Andrew Weissmann
Right.
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Mary McCord
And he brought back up that case in a footnote and says the basic constitutional rules governing the dispute, right, about immigration stops and arrests are long standing and clear. Quote, the Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence. Stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. So that's why I call this the redemption footnote. Like, hang on, hang on. I didn't mean to go so far as to say you could racially profile and hold people for extended periods of time.
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Andrew Weissmann
That is sort of the cherry on top this week. So with that, though, let's turn to the.
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Mary McCord
Yeah, let's get to the substance of the.
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Andrew Weissmann
Let's get to the substance because this footnote was so bizarre because it has, like, it really has nothing to do with the case that was up in the Supreme Court. So, brief recap. This was an issue about the National Guard being deployed by the President to Chicago. The district court hadn't joined it. The Court of Appeals had affirmed that. And then it went to the Supreme Court. And the Supreme Court was asked by the government to rule very, very quickly on this, to quickly overturn the stay so that they could continue doing their stuff. And they didn't. And they asked for briefing on the issue that we've spent a lot of time talking about, that Marty Lederman, your colleague at Georgetown, had put in an amicus whether regular forces includes the military. Meaning before you can call out the National Guard, that you should first have to show that you can't get the job done with use of the military. They could have been called out, but you didn't do that. The court got briefs on that, and then we waited. And so we now have a decision. Mary, this is such an issue that you've been, like, all over in terms of your organization and understanding what did the court say, what sort of the majority say? And then we'll turn to. There's some what I thought were kind of odd dissents.
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Mary McCord
Odd, but maybe not surprising, right?
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Andrew Weissmann
No.
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Mary McCord
So just to contextualize, again, this wasn't about just generally, when could the President federalize the National Guard? It's specifically the interpretation of a statute, right? Title 10 of the United States Code, section 12406, subsection 3. And that is a statute that does allow for the President to federalize and deploy the National Guard when the regular forces, and that's a quote, are unable, also a quote, to execute federal law. And so this issue, as you just indicated, Andrew, had gotten up to the Supreme Court on an emergency motion, not on the merits. Nevertheless, we did get a brief opinion from the majority. Then we had Justice Kavanaugh's concurrence, and then we had two separate written dissents, one written by Justice Alito, joined by Justice Thomas, and one written by Justice Gorsuch. And the bottom line is that the majority agreed with Professor Liederman and the original plaintiffs in the case, which is the State of Illinois, the City of Chicago, that regular forces means regular military forces. And I think it bears pretty much reading most of the two operative paragraphs. And here is what the majority said. We conclude that the term Regular forces in 124063 likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active Federal Service under 124063, the President must be unable with the regular military to execute the laws of the United States. Because the statute requires an assessment of the military's ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional. Under the Posse Comitatus act, the military is prohibited from, quote, executing the laws except in cases and under circumstances expressly authorized by the Constitution or act of Congress. So before the President can federalize the guard under 124063, he likely must have statutory or constitutional authority to to execute the laws with the regular military and must be unable with those forces to perform that function. That is the first relevant paragraph of the majority. The reason they're using the word likely is because, again, we are in this emergency posture on a motion for a stay of the injunction, not on full merits briefing. So the standard is which side is likely to succeed ultimately on the merits. And what they're saying is the President is not likely to succeed. They go on to say, at this preliminary stage, the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the government, allows him to use the military to protect federal personnel and property. But the government also claims, consistent with the longstanding view of the Executive Branch, that performing such protective functions does not constitute executing the laws within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute executing the laws under 124063. Then they conclude with thus, at least in this posture, the government has not carried its burden to show that 124063 permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois. So it's two brief paragraphs and there's a lot there. But it is just so important because like I said, like you said, this is the authority that the President has used so far in other jurisdictions, and that means those courts, and Justice Kavanaugh recognizes this in his concurring statement will be pretty much bound to say, okay, you haven't made this showing in these cases either because you did not attempt United States government to use the regular military.
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Andrew Weissmann
Yeah. So it'll be the same legal issue. You say, we'll have the same sort of concern when we get to la. When we get to Portland, in terms of the President using the National Guard, this is really saying you have to think about whether you have some other authority. And a lot of people have talked about, isn't this just goading him or saying that if you want to do this, you're going to have to use the military and invoke separate statutory authority to do that. And it gets around what you just read, which is the Posse Comitatus Act.
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Mary McCord
And I think that one reason that people are saying, isn't this just sort of goading the President into invoking the Insurrection Act? And isn't that a bad thing? Because then we would actually have the regular military in Illinois and in Portland and in LA and not the National Guard. And wouldn't that be worse? I think there are a few responses to that. One, it's not the case that an invocation of the Insurrection act necessarily means that we all throw up our hands and say there's nothing we can do. The President invoked it. It must be fine. I mean, if he thought he had the authority to do that, he could have done that already, and he didn't. And it might mean because he didn't think he had the legal grounds, or it might mean that he didn't want to take the political hit of invoking it.
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Andrew Weissmann
Or both.
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Mary McCord
Or both. That's right. It is something that, although there is great deference to the President's determination under the Insurrection act, it is something that I think, you know, many judges and legal analysts, and certainly I believe is still challengeable based on discussion we've had previously about these cases, which is whether the invocation is actually an exercise of good faith, you know, a colorable assessment of the facts and whether those justify invoking the Insurrection act that there really is an insurrection or rebellion against the authority of the United States, that kind of thing. And note, there is another prong of 12406 that allows for deployment of the National Guard where there is a rebellion against the authority of the United States. And that is something that the government originally relied on, was rejected by every lower court. And this Supreme Court majority doesn't even mention, doesn't even.
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Andrew Weissmann
I know what's striking. It was striking to me that that was absent because, you know, when we've been talking to people on this podcast about it, we've always been going, so let's talk about this prong and this prong. But one of them was the argument about rebellion. The Supreme Court doesn't even say anything. I think they should have. I mean, they didn't absolutely need to, but it was an argument raised. And there's a part of me that this goes back to our discussion from last week about normalizing the aberrant. You know, the government's just another party. They are making arguments. The court is there to rule on them. Obviously, in my view, I agree with all the judges. You're have said no way. I mean, I don't think there's any judge who said there is a rebellion.
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Mary McCord
That's right.
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Andrew Weissmann
And, you know, if the government makes an argument and makes two arguments you disagree with, so what? It's not like you haven't given them lots and lots of wins. So it was odd to me that they didn't reach an argument that the government was advancing, even though it was.
- [17:23]
Mary McCord
Exceedingly weak and they barely advanced it. I mean, it's there, but it, it really was a minor part of this briefing in the Supreme Court, but. Yeah, but it's there. But it does seem like, you know, maybe that's partly because this is a, an emergency posture, even though it really wasn't treated like an emergency. A motion for stay is preliminary, but it tells me that there certainly were not enough justices to want to go that route. And I think that that is important when we think about what are the potential outcomes if the President were to invoke the Insurrection Act.
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Andrew Weissmann
Let's, let's. Should we just take a brief moment? I don't think we should spend too much time on the dissents, because there's not really a great substantive point that they're raising. They raise a procedural issue, which is they're basically going, oh, you shouldn't really reach an issue unless one of the parties has raised it. The parties have to raise an issue directly in order for us to rule. And lots of people have commented, including our colleague Steve Vladeck, your Georgetown colleague, actually. He's like, really? Because that's something you do all the time when it's useful for you. So it's like really now, now the procedural posture is a problem. So they have this procedural issue. It's a little odd to me because it's not just that they ignored that rule themselves, it's that it's not a sort of hard and fast rule. The Court's supposed to decide what's right under the law. And what are they supposed to do? Ignore the law and the history. I mean, the courts raise issues all the time that they identify and they ask people to address.
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Mary McCord
All I could think of immediately. Justice Alito wrote the principal dissent. Justice Gorsuch wrote a shorter dissent agreeing with this party principle that you've just been saying. But just as Thomas concurred in full with Justice Alito's dissent and all I could think of, Andrew, was his concurring opinion in the immunity case where he raised an issue completely unbriefed and irrelevant, which was whether Jack Smith ever actually was lawfully appointed, even though, remember, the immunity decision was all about what immunity, if any, a president has for his official acts, etc. Justice Thomas, does this separate concurrence all about was Jack Smith unlawfully appointed and that gave Judge Cannon the fodder in her opinion in the moral say. Exactly. To say Justice Thomas has basically told me the roadmap here and I'm going to find that Jack Smith was unlawfully appointed. And I just kept thinking, oh my gosh, look at you, Justice Thomas having, you know, now railing on a court ruling on something that wasn't briefed and you did a whole concurring opinion on that. Now he could say, well, that was just a concurring opinion and I'm entitled to express my views in that and he certainly is.
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Andrew Weissmann
But still, I think it's very hard when they act like that. You know, the Supreme Court is not held in high esteem and those kinds of opinions don't help. So, Mary, I think it's a good time to take a break because we're going to come back and we're going to talk about the Jeb Boasberg decision, which has been a long time coming, not through any fault of his because there's been a lot of things that have slowed that case up. But it is a wonderful, remarkable decision and that's one where he reversed himself on an important factual call. It's a good news story in terms of the rule of law.
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Mary McCord
It is.
- [21:04]
Andrew Weissmann
Start your day with the MSNow Daily Newsletter. Sharp insights from voices you trust, standout moments from your favorite shows, and fresh perspectives from every experts shaping the news. Sign up at Ms. Now.
- [21:23]
Mary McCord
Welcome back. Well, as promised, we are moving on to another sort of good result here and that is the case that goes back to March 14th and 15th called JGG, although we actually have different named plaintiffs. Now. This is the case that arose from the government's expulsion of over 200 almost all Venezuelans. But of course, Abrego Garcia was on one of those flights. It was not Venezuelan, but mostly Venezuelans to Terrorism Detention center in El Salvador under the auspices of the Alien Enemies act when the President had proclaimed, although as Judge Boasberg points out, secretly proclaimed this before it Was publicly known and, you know, loaded men on planes and got ready to depart the country before there was any public acknowledgment that he had invoked the alien enemies act. He invoked that to say, these men we are expelling under the authority of the alien enemies act as actually enemies of the United States because they are members of a criminal gang trend that he claimed by his proclamation was essentially an arm of the Venezuelan government and therefore a proper state enemy. All of that raises a ton of legal issues that are still being worked out in the courts, Whether the alien enemies act could even be properly invoked here. And We've had the 5th Circuit, a panel decision saying no, that it could not, and that is up on en banc review in a different case. But this case in front of judge Boasberg proceeded because those men never got any due process. And the supreme court, in one of its earliest, earliest decisions, again, a favorable decision for the plaintiffs in this case, you know, reiterated that these men were entitled to due process. They were entitled to notice that they were going to be removed under the authority of the alien enemies act and an oper opportunity to contest their removal and also contest whether they're even members of trend before their removal. The problem is they'd already been removed.
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Andrew Weissmann
Right. Pre deprivation.
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Mary McCord
That's right. The problem is they'd already been removed before this got to the supreme court. And so the issue then in the supreme court was these need to be brought in through a process called habeas. So this case went back to judge Brosberg, and that meant for most people who were still in the United States, they had to bring their case in the place where they were detained. But because these men had already left, there is the ability for habeas to be in the district court in the district of Columbia when people are being detained outside of the United States, if they are still in the constructive custody of the United States. And that's the issue that was in front of judge Boasberg. Could these men, who now, by the way, have been actually sent back to Venezuela pursuant to basically a prisoner exchange between Venezuela and the United States, Were they in the constructive custody of the United States even when they were physically in El Salvador and now physically in Venezuela? And that was the issue that was decided by judge Boasberg.
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Andrew Weissmann
Judge Boasberg describes the case this way, and I think it's great. Attach this to the show notes because it's such a wonderful opinion. But he opens by making it clear to the public what is going on. And I'm going To just quote from the beginning. 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. On behalf of themselves and a putative class of similarly situated detainees, they have turned to the courts to vindicate their constitutional right to due process. These efforts have precipitated multiple trips up and down the assorted tiers of the federal judiciary, complicated by their subsequent transfer to and release in their native Venezuela. Mary, that's what you were just referring to. And then he basically procedurally says that the parties have agreed to consolidate the motion that's before him into a motion for summary judgment. And this is what he says. The court ultimately finds that the United States maintained constructive custody over plaintiffs while they were imprisoned in El Salvador, thus affording the court habeas jurisdiction over this action, meaning the court only has authority if they're somehow in United States custody. He can't start ordering a foreign country to do something. But if the foreign country is an agent or acting on behalf of the United States, than he does, as you noted, Mary, so he says, in addition, it will certify a class of plaintiffs who were removed on March 15 and seek to enforce their right to a hearing on the merits. The court concludes that this class was denied their due process rights and will thus require the government to facilitate their ability to obtain such hearing. And this is, I think, my favorite part. Our law requires no less. That's how Judge Boasberg opens. And the thing that he does differently. When I was talking before the break, Mary, and we were saying that he reversed himself, it was on the factual call where previously, based on the record that he had, Judge Fosberg gave a lot of deference to some of the sworn affidavits the government submitted. But he goes through that and does a careful parsing of what has been submitted to him, and then, I think, does something that is so important he does not ignore what senior government officials, including the head of the Department of Homeland Security, are saying publicly, which, by the way, has been put before him. And so one of the things he notes is that Kristi Noem was making a variety of statements that says that the seacot prison is one of the tools. There's I'm paraphrasing, is one of the tools in the toolkit that the United States has. He talks about how there was a financial deal that the United States had to hold people in El Salvador at this prison, he talks about how there was the agreement that El Salvador would do. This was lapsed after a year. And he. One of the great points he makes is if this is something that El Salvador is doing on its own, why would there ever be an end date? What's that agreement about? The evidence that El Salvador was doing this at the behest of and on behalf of the United States and but for that would not be doing it is overwhelming. And one of the things he points out is what possible interest does El Salvador have here to have done this? These are not people from El Salvador. They're not people who are committing crimes in El Salvador. These are people who are in the United States who are being sent to El Salvador. They had no obligation to even let them in the country. So it goes on and on about the overwhelming proof. And in some ways, I have to say it is. And I think he does a great job. And he's very careful and he's very detailed, and I think he is, because he's a careful judge. But I think it, to me is in some ways a sad state of affairs in terms of our judiciary, because it's so preposterous to have argued the opposite. And it reminds me sometimes, Mary, when we were trial lawyers, sometimes the defense would make good arguments, and sometimes the defense would make arguments that were preposterous. And when you are dealing with those and you're in, let's say, in summation with a jury, the really preposterous ones you don't spend a lot of time on, because in some ways, you give them too much credence. It's easier to just be like, that's absurd. And you point out one or two things here. I think he has to do that because of worrying about the Court of Appeals, worrying about the Supreme Court and also the court of public opinion. But it's one where I would encourage people to look at this, but it is a sense of. And I don't know if you felt this way, that it's like, oh, my God, this is overkill, because it's just so not plausible. And he points out that the government just doesn't have any response to so many of the things that he is raising that it's really hard to see the other side on this one.
- [29:58]
Mary McCord
Yeah. So I think that's a great point, because one of the things that. When you mentioned before the break that his earlier decision, you know, we had some dissent to that. Right. Like, I think we thought intuitively that these detainees were in the constructive custody of the United States because El Salvador was just doing this because we're paying them. But what Judge Boasberg had done in that initial decision is he had said, I'm going to give credence to the US Government high level officials declarations basically that are saying that they're not in our custody. And here he says things have changed. Right? Things have changed. There's a lot more facts now here that support that these men were in the constructive custody of the United States all along, including even this transfer to Venezuela, which it appears El Salvador got no, nothing from. But it did result in the release of 10Americans being held by Venezuela. So even that seemed like it was just a deal between Venezuela and the US which also shows that these men were in the constructive custody of the United States. Right, but he still says I'm not going to discredit the high level government declarations. Right? He said, I just now looking at them in more concrete detail in the context of everything else, including other arrangements in history where the US really has transferred over full custody to a foreign government and you know what the terms of that are, he contrasts that with the terms here and what high level US Government officials have said here in this situation and said, even if I credit what they're saying in their declarations, that doesn't change the fact that the US still had constructive custody of these men. And to your point, I think part of this going through all of these factors that support constructive custody and even not discrediting government officials declarations, but saying even with those declarations, it's not enough to defeat constructive custody. That is a very solid way of writing an opinion so that if there are disagreements on any points by a higher court, you know, on the legal conclusion from the factual finding that there are multiple ways for a higher court to get there. So I think it was smart on his part. I have a question for you though, because the ultimate result of this is that Judge Brosberg says, government, you have got to give these men due process. He said, I'm not going to rule on individually whether they were members of Trend Aragua, whether the Alien Enemies act could be invoked. That's not for me to rule on. I'm just saying you have to give them that opportunity that they did not get to contest this before they were removed. And government, I'm giving you, I think till January 5 to propose a way for that to happen. He says Venezuela said as recently, I think he says as July, that they would send these men back to the US for due process. They have said that if they wanted to go. And so government proposed whatever you're going to propose. So my question to you is, things have changed between the United States and Venezuela since that July statement by Venezuelan authorities that they would, in fact return the men to the US if they wanted to be returned. So what do you think is going to happen now?
- [33:04]
Andrew Weissmann
Yeah, so that's one issue is what would Venezuela do? On the other hand, Venezuela may not have a particular interest in having these people here if they want to go back. And they have said and represented to Judge Boasberg that they do want to come back to the United States. So there's a part of me that Venezuela, it's like the enemy of my enemy is my friend. So Venezuela could be like, well, if these people want to go back to the United States and the United States doesn't want them, we want to send them back to the United States as a sort of, you know, middle finger, given the relationship that's going on.
- [33:39]
Mary McCord
Yeah.
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Andrew Weissmann
So I do think there's that issue, which is will Venezuela change its position? I thought it was smart of Judge Boasberg to say, look, in the first instance, I want the government to propose what they think would satisfy due process rather than me inventing it and imposing it. It's what you're supposed to do, give the parties an opportunity to be heard and suggest things. I strongly think that they are going to the government's going to propose that the hearings happen essentially offshore. And, you know, just look at Abrego Garcia, where they were trying to do everything they could to not have him come back here, you know, shorter than indicting him. So one thing they could do is propose that. It is true, though, that Judge Boasberg points out that ICE does have a process for when people have been sort of illegally removed to bring them back. So that also is like Judge Wilkinson in the 4th Circuit, or we've talked about him. He's a conservative jurist who is an appellate judge who basically said, who in their right mind doesn't see a wrong and say, okay, I have to correct it. He said that about Mr. Abrego Garcia. And so of course, a normal thing is to say, let's bring them back and give them their hearings because they may be able to show that they were not part of Trend Aragua, or they could show that even if they are, you relied on the wrong statute. But that's not the administration we have. What do you think?
- [35:08]
Mary McCord
Well, I think they'll appeal is what they'll do. Oh, yeah, they'll seek a stay of this and they won't probably propose anything on January 5th. Then we'll be back up in the circuit. Seeing what the circuit has to say, I think they're going to try to avoid.
- [35:21]
Andrew Weissmann
But they'd have to get a stay.
- [35:23]
Mary McCord
That's right. That's what I think they'll go up and seek a stay of. They'll seek a stay before Judge Boasberg and then if he denies it, they'll go to the circuit. And if they deny it, they'll probably try to go to the Supreme Court, because I don't think they want to either bring these men back. And I don't think they want to provide them hearings, you know, remotely. And essentially that would mean while they're still in Venezuela, some sort of hearing from Venezuela that would probably be some sort of remote proceeding.
- [35:45]
Andrew Weissmann
Mary, I have a question for you.
- [35:47]
Mary McCord
Yeah.
- [35:47]
Andrew Weissmann
And you know, this is one where like, I don't like just throwing race into an equation unless I think it's really called for. And you know, I'm thinking of a Thurgood Marshall dissent in a case, it was called Robinson. It's an important case out of the D.C. circuit where he basically says, millie, do you think this would happen if we were talking about a businessman walking on the street in D.C. do you think if we were talking about rich, well heeled white people who were illegally removed and stuck in a prison and then transported to another country and a 9 to 0 Supreme Court case said that due process was violated, that just think about the amount of time that Judge Boasberg starts by saying nine months ago, these people are still being subjected to various wrongs. Part of it was jail. It's just hard to imagine torture.
- [36:46]
Mary McCord
The conditions being reported have been that they were tortures and they are still, you know, there are consequences here. And Judge Boasberg talks about these. It's not just that they got removed and they're in Venezuela now, which was the place they originally fled. They are now because they've got this label on them of alien enemies. They're barred from coming into the United States even through some legal mechanism in the future. They're barred from applying for asylum. They are treated as foreign terrorists for purposes of the material support to terrorism statute, which would mean they're like a poison pill, right, to anybody who would support them in any way, including, you know, businesses providing services, things like that, US Businesses providing services. So there are real consequences to your question. I don't think this administration would have ever removed those rich white business people to begin with, I guess, maybe unless they did it as a political retaliation point so we wouldn't even be in the position of trying to struggle over bringing them back. But I agree. The whole treatment of Venezuelans, these men again, alleged to be members of a terrorist organization that many of them and their families say, absolutely not. Just like Abrego Garcia has been alleged to be a member of Ms. 13. And he says, no, I'm not the treatment of migrants. And we could go on to what we've seen in Portland, in LA and Chicago. Right. The treatment is really, it's hard not to have a racial overlay to it. It really is.
- [38:12]
Andrew Weissmann
To be clear, this is yet another loss for the government and vindication of the rule of law. And so let's come back and talk about vindictiveness and what has happened both in a Tennessee case and in D.C. and again, good news stories it is. As President Trump continues implementing his ambitious agenda. Follow along with the MSNow newsletter, Project 47. You'll get weekly updates sent straight to your inbox with expert analysis on the administration's latest actions and how they're affecting the American people.
- [39:00]
Mary McCord
The American people are basically telling the president that they are not okay with any of this.
- [39:04]
Andrew Weissmann
Sign up for the Project 47 newsletter at Ms. Now. Project 47. So one of the things that, Mary, you flagged for us at the outset is Mark Zaid. He had his security clearance stripped. He is one of many, many people, full disclosure. I'm one of those people. Of course, for me, I'm not in the business anymore. I'm not even sure I have security clearance anymore. And there was a decision from Judge Bates in connection with one of the executive orders involving Jenner and Block that actually it's being appealed. But Judge Bates found that that executive order that applied to Jenner and Block and to me violated the First Amendment. So full disclosure. But with respect to Mark Zaid, as you said, this is his livelihood and he pointed that out and it's relevant to many of the various prong. You know, there are actually a lot of issues here, but the judge who is a judge in D.C. very much tracks the other four federal district judges who dealt with the law firm executive orders. And all four of those federal district judges struck them down. And some of them also dealt with when challenged the issue of security clearances and said that the problem here is even though the law is very, very, very favorable to the government, when they make an individual determination that somebody should not get security clearance here and in the decisions with respect to the law firms, the judges have been saying that 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 and there was no determination that was being made. And I love the way the judge started on this issue and said, you know, no one's saying that they don't have a valid goal in terms of trying to make sure that the right people have security clearance and the wrong people don't, but you do have judicial oversight about the means you use. And one of the things he said is, you know, it might be the government may have the gall that they want to gather as much evidence as possible against a particular suspect. It doesn't mean that you can violate the Fourth Amendment and go tromping into their house without a warrant. He cites a judge who had said that. And so he finds and enjoins that the government is not allowed to, on this record, strip Mark Zaid of his security clearance because there was no individual determination. And again, 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. And my big picture, Mary, is I think that in some ways this is done because for the government, it's a win win no matter what. Because even if they lose eventually, it's out there. It is like, this is what we do to people. This is what we do to a lawyer. This is what we do to law firms. And keeping it alive in the court system allows it to still have that chilling effect on others, something you and I know all too well is going on. And so it's kind of a win win, even when they lose, until they would lose sort of in the Supreme Court, the issue is gone forever. It's something that they get the benefit of. The chilling effect.
- [42:49]
Mary McCord
Yeah. I mean, we know with the blacklisting of the law firms that other law firms did capitulate to various requests of the Trump administration to get rid of any types of, you know, DEI practices and to offer to provide millions of dollars of pro bono services to causes that the Trump administration wants them to.
- [43:09]
Andrew Weissmann
Be hundreds of millions of dollars.
- [43:11]
Mary McCord
That's right. And we know that, you know, a lot of the big law firms that didn't even reach those deals that just tried to stay under the radar, stopped representing publicly people and causes that this administration is against. And so, like you said, this is still a chilling effect. I think it's important for people to know. And you definitely pointed this out, but I want to be very, very distinct about this. Is that the government's argument here, and they've got some good case law to support this, it just doesn't go as far as they want. It is that, look, you don't have an inherent constitutional right to a security clearance. Right. When it comes to who gets to have one and whose will be taken away. That is someplace where courts really refer to the government. The difference here, and this is what Judge Ali finds after he goes through pages and pages of discussion and cases, is that what is judicially reviewable is did you get any process at all, any individualized assessment like you said, Andrew, of before your security clearance was revoked? And you know what the process was here? A presidential memoranda dated March 22 called Rescinding Security clearances and access to classified information from specified individuals, which simply said, the president said, I have determined that it is no longer in the national interest for the following individuals to access classified information. And there were a list of individuals, including Mark Zaid. He therefore directed every executive department and agency to take all additional action necessary to revoke those clearances. Clearly that was not any individualized assessment because there's a whole list of people there. It wasn't even based on national defense, national security concerns. It was based on national interest, which is much more vague. And what Judge Ali was saying is I am not getting into questioning or reviewing as a judge any predictive individualized determination that a high level government official made about whether Mark Zaid should maintain his clearance. I'm saying he got no process at all. And case law, binding case law, tells me that I can review the fact that you got no process at all. And I can order the government to provide some due process. Again, like what we've been talking about, even with the Alien Enemies act, removals, right, due process, right. That notice of what you're going to be deprived of. In the case of the Venezuelans, it was deprived of their presence here in the United States, removed from the country without any liberty. Yeah. Their liberty here is Mark Zayd's livelihood, his liberty, his First Amendment rights to represent people and causes that are against the United States lawfully to do so, ethically to do so. Same with the law firms that there is that due priceless right. So it is a real vindication of that. And we will see now whether the government tries to appeal this right away. Probably they will or provide some sort of process to Mark.
- [46:00]
Andrew Weissmann
Mary, I was going to say the answer to the question of let me tell you what kind of process was afforded coming from New York. I was going to say the answer to that is bupkis.
- [46:10]
Mary McCord
Yes, bupkis. That's right.
- [46:12]
Andrew Weissmann
So speaking of another decision that it's interesting and there's a little bit of unknown here, is, as you mentioned, we're going to turn to the Abrego Garcia case. And this is sort of a nice bookend to everything we've been talking about. So he has a criminal case in Tennessee, and the district judge there had said that he had shown enough evidence to get discovery and the trial date has been put off. The judge sort of was like, and I'm getting rid of that trial date for now. And instead, at the end of January, he is going to have a hearing on the vindictive and selective prosecution motion. Remember, this is one where first he said that Mr. Abrego Garcia is entitled to discovery. Now he's going to the part where he will actually decide the issue and have a hearing on that issue. It is fascinating to watch, but this is, to me, no matter which way the judge comes out, ultimately this is due process. This is what defendants are entitled to. This is a defendant who's making arguments and is entitled to be heard. And you know what? Maybe he's right. Mr. Bo Garcia can show this. I think he has a pretty strong case, but we'll see. I mean, we haven't heard the government's response, but this is what we've been talking about in terms of, Mark, in terms of what's before, Judge Boasberg, this idea of the rule of law and due process. And you and I have been criminal prosecutors. I've also been a criminal defense lawyer. We're steeped in this. This is what we do for a living. And it's just part of how you're brought up. And so it's nice to see this in action.
- [48:06]
Mary McCord
Yeah. And to be clear, all criminal defendants are entitled to discovery related to the charges against them. Right. So that they can defend themselves in court. This discovery that was ordered is separate from that.
- [48:18]
Andrew Weissmann
Yeah.
- [48:18]
Mary McCord
Was specifically discovery into the government's motivations in order to support whether they really did bring these charges as, you know, a result of vindictiveness as opposed to the merits of the charges. And that's pretty unusual. And when the judge first ordered it, we said that was unusual. And the reason this came up right now is because the Abrego Garcia defense team sought to subpoena the deputy Attorney general, Todd Blanch, the acting principal Associate Deputy Attorney General James McHenry and another associate deputy attorney general to testify at an evidentiary hearing about the sort of reasons that he was charged to try to get into this, whether they were vindictive. And so when the government said, I want you to, it's called quash, quash those subpoenas and say that they do not have to show up. And so the court went through. What is the process when we've got a hearing like this, Whose burden is it to show vindictiveness? And I think it's worth just quickly going through that so people know what we can expect when we get. And I'm sure we will talk about the hearing after it occurs. The first step is once a defendant can establish what's called a prima facie showing of vindictiveness, then a presumption arises in the defendant's favor. And the judge already had found right some months ago when he said, you can get discovery that Abrego Garcia had made that prima facie showing of vindictiveness, then the burden shifts to the government to rebut the presumption of vindictiveness with objective on the record explanations for charging Abrego Garcia. And so that is what the judge will be hearing at the end of January. Government, bring it on. What do you have to rebut this presumption that these charges were vindictive? If the government can produce evidence that it was not vindictive, then the burden shifts back to the defendant to prove that those offered reasons, the offered justification, were just pretextual and that actual vindictiveness occurred. And the judge says, these witnesses that you've subpoenaed, Mr. Abrego, Garcia, Todd, Blanche and the others, they would go to that burden. If the burden shifts back to you, they would be relevant to you being able to prove pretext. But I don't need to decide that right now, because right now the burden is on the government. So let's have this hearing figure out if the government can meet its burden. And he says, if the government fails to present evidence sufficient to rebut the presumption, that's the presumption of vindictiveness. The presumption stands, and the court must find that the prosecutor acted vindictively, leading to dismissal of the charges or other appropriate remedies. And so I think one reason when he said, I am just canceling the trial and not putting a later date on the schedule is because if the government can't rebut this presumption of vindictiveness, the court can dismiss the case and there is no trial.
- [51:12]
Andrew Weissmann
It'll be fascinating because there are a lot of issues here. But the government's case, the criminal case, is centered on an incident from a while ago and nothing happened like there were no charges, and Mr. Brago Garcia went forward and lived his life. And so the issue is very much going to be, why was that sort of resurrected? And it certainly can be, just to be fair, it can be that different prosecutors look at something and say, you know what, I have a different view. It could be that they're just continuing an investigation and they find new evidence and everyone has a new view, or there's disagreements about what you should do. But here the issue is the case was closed, and so the judge is already very focused on sort of like, why was it reopened? And are the reasons. Do they fall within this being vindictive in terms of doing this because of an assertion of rights, or is it that now that he's in the country, we're trying to protect the community, we'll see what it is that the government says, I'm actually as horrendous as I think he has been treated. And we talked about him in the Judge Zinnis case, the civil case, just how horrendous it is. But on this, I just want to keep an open mind in terms of why or why not the case was reopened, what people were thinking. This is where, Mary, we've talked a lot about the presumption of regularity. And this is one where normally I would be more receptive to thinking favorably to why the government's doing something. But here it's so hard to ignore the history of what has happened to him and just to also see how obviously vindictive they are. Because, remember, just to remind people, sort of as a concluding point, Mary, you were talking about the Judge Zinnis decision, where Mr. Brega Garcia is saying, I'm willing to go to Costa Rica. And over and over again, the government's like, that's the one place we're not sending you. And so they keep on trying to come up with other countries to send him. Those countries are like, no, we never agreed to that. And so it's just so unusual because they could solve all of these problems. And it's hard to see this motion, not drawing on that background, start to divorce it and separate it.
- [53:39]
Mary McCord
One of the main things that supported the judge's original finding that the prima facie case was made and discovery could be had is just the timing, right? It was after Abrego Garcia successfully challenged his unlawful and mistaken removal that the government reopened this investigation obtained charges very quickly after something like 890 or 900 days since the original traffic stop upon which they now base this criminal charge. I think the timing is a big, you know, billowing red flag, but, you know, nothing is as simple as that, right?
- [54:14]
Andrew Weissmann
Well, Mary, have a wonderful, wonderful I know we're on the eve of New Year's Eve. Have a wonderful New Year's Eve. Have a wonderful January 1st. I will see you in the New Year. We will talk to all of our wonderful, wonderful listeners in the New Year and wishing you all a very happy New Year and a very fulfilling 2026. So thank you all very much for listening. Wish you all the best. Remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content.
- [54:56]
Mary McCord
This podcast is produced by Vicky Virgolina. Our Association Associate producers are Iggy Manda and Rana Shabazzi. Bob Mallory, Greg Devens II and Hazik bin Ahmad Fared are our audio engineers. Katie Lau is our Senior Manager of Audio production and Aisha Turner is the Executive Producer for Ms. Now Audio.
- [55:16]
Andrew Weissmann
Search for main justice wherever you get your podcasts and follow the series.
- [55:37]
Mary McCord
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 the world. Our name is new, but you'll find the the same commitment to justice, progress and the truth that you've relied on for decades. We'll continue to cover the day's news, ask the tough questions and explain how it impacts you. Ms. Now. Same mission, new name. Learn more at Ms. NOW.