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Main Justice
“Everything Everywhere All at Once”
00:54:32
The 30,000-foot view of the impact of Trump’s executive maneuvers. Plus: firing and list making at the DOJ/FBI, and challenging Congress’ power of the purse.
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- [00:01]
Andrew Weissmann
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- [00:43]
Mary McCord
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- [00:49]
Henry Meds
Go to henrymeds.com Pandora to start your weight management journey today. That's henrymeds.com Pandora. Results may vary. Not all patients are eligible. Compounded medications are not FDA approved. Consult a healthcare provider to determine if treatment is right for you.
- [01:11]
Andrew Weissmann
Hello and welcome back to Main justice, which, by the way, that's my dog in the background. And I was going to say Main justice is a particularly appropriate title today. It's Tuesday morning, February 4th. I am Andrew Weissman and I am here with my wonderful co host, Mary McCord.
- [01:33]
Mary McCord
Good morning, Andrew. My dog is hopefully downstairs not responding to your dog. So otherwise we could just have them do the podcast today, actually, which might be fitting because you and I are in a bit of a funk.
- [01:44]
Andrew Weissmann
Yes, exactly. We're going to be barking.
- [01:46]
Mary McCord
Yes.
- [01:47]
Andrew Weissmann
And howling.
- [01:48]
Mary McCord
Yes. Honestly, that's a good way to start. Like we are.
- [01:51]
Andrew Weissmann
Is that a good segue?
- [01:53]
Mary McCord
We're trying really hard to bring some levity each week, even though it's really challenging because there doesn't seem to be a lot good happening right now. But there are some things. We've got some courts that have issued some good decisions. There's just such a deluge almost minute by minute of new things coming out fast and furious from the administration that sort of shocked the conscience and so.
- [02:16]
Andrew Weissmann
Yep, it's like that movie which I loved.
- [02:19]
Mary McCord
Everything all at once.
- [02:21]
Andrew Weissmann
Everything everywhere, all at once.
- [02:23]
Mary McCord
Yes, I think so too.
- [02:25]
Andrew Weissmann
And that seems like a very, you know, it's part of the sort of shock and awe strategy. That's what it feels like.
- [02:31]
Mary McCord
Very much feels like that.
- [02:32]
Andrew Weissmann
So, Mary, with that, how are we going to organize today?
- [02:35]
Mary McCord
Sure. So first we'll kind of zoom out and just look sort of structurally based on the Constitution, separation of powers, how the executive has certain powers and the legislature has certain powers and the judiciary has certain powers and they overlap in certain places. And what we're seeing now seems to be an executive that feels unbound by these lines and really trying to bring all the power within the executive. And we see that across many, many different areas. Then, you know, let's face it, you and I both come from doj, you with the FBI as well, both strong, long backgrounds in doj. And so we have to spend some time digging into just the wrecking ball that is going through the department right now and the FBI. And then we will talk about, you know, some of the things that have happened in terms of litigation already that has already resulted in halts, some bars on some of the things that the administration has tried to do, including the funding freeze, which was a major, major issue. We've got two restraining orders on that and other litigation that's been successful and much more that's being filed. I mean, our, my group is arguing birthright citizenship tomorrow.
- [03:47]
Andrew Weissmann
That's what I was going to say.
- [03:48]
Mary McCord
Sorry, sorry, sorry.
- [03:49]
Andrew Weissmann
I definitely want to hear a little bit about that because we spent a while talking about that last episode. And at least briefly, we'll bring people up to speed about where things stand. But with that, Mary, why don't we turn to the big overarching structure and let me first give a plug. I do teach at NYU Law School. I'm also on the board of Just Security, as are you, Mary. And Just Security is a legal forum that has a number of different people on it, not just NYU professors, and is a wonderful resource. But there is an article that was put out by two professors, Adam Cox and Trevor Morrison. And whatever you think of Mary and me, these are two really dispassionate, not hair on fire professors who are really thoughtful and sort of academics in the best sense of the word. And they have an article together which obviously we are going to try and synopsize. But it's really is about not just the unitary executive theory, which is that the president can control the executive branch, but it's taking that to an extreme, not just within the executive branch, but overflowing to Congress and saying that the executive isn't even bound by congressional law. And in predecessor or thinks he's not exactly that's the theory is this overarching sort of view which they say is Trump's dictatorial theory of presidential power. And I have to say, coming from these two gentlemen is quite powerful because they are, as I said, they are not flamethrowers, ultra lefty flamethrowers trying to get you scared, you know, Chicken little types. And it really is a sense of this is a step too far. And so, Mary, what is the theory here? Like, all of this sort of litigation we're going to talk about and have started talking about is going to end up in some form in front of the Supreme Court, whether all of it will, you know, unlikely, but the basic theory will end up in the Supreme Court. What is the issue?
- [06:06]
Mary McCord
Yeah, so it really, what we've seen in these executive orders and these initial purported policy changes coming out of various departments and agencies, but particularly starting with the executive orders, is that across multiple different areas. Right. Whether it's Department of Justice, whether it's Office of Personnel Management or the Office of Management and Budget, what is happening is these executive orders are broadly asserting inherent presidential power or else emergency authority to act, even in contravention of statutes. Right. And we talked about separation of powers. Congress has a whole lot of enumerated powers in Article 1 of the Constitution, the first article of the Constitution. And these include things that we're very familiar with, like the power of the purse. That means to appropriate money and to direct what will be done with that money. It can give some authority to the executive branch for discretionary use of that money, but it also can designate things that have to be done with that money. It has the power to legislate in issues of criminal law enforcement, national security, personnel management, budget, environmental, foreign aid, all of these things. Right. And in fact, birthright citizenship. You know, we talked a lot about how there's a constitutional amendment, the 14th amendment, that provides birthright citizenship for all people born on the soil of the United States, with few exceptions for the babies of diplomats. But there's also a statute that says the same thing passed by Congress to say birthright citizenship. So in many of these areas, what we're seeing is these executive orders are just ignoring statutes that exist out there, oftentimes ignoring the Constitution, too, but ignoring statutes and just proclaiming this broad authority. And I want to use some of Justice Jackson's opinion in the steel seizure case. Is that where you were going to go?
- [08:03]
Andrew Weissmann
Yeah. Well, it's so funny because I think people need to know that there's a case called Youngstown, which is the case that you were just referring to, Mary, and that's such a core case for this because it creates these three buckets. It's very, very famous. I teach it every year. But Mary, go ahead and tell us what you're going to say and then I'll kibitz later. Sure.
- [08:23]
Mary McCord
And it's interesting because I always have taught it in my national security law case as well. And people think about it as a national security. Well, it was a national security case, but the principles apply well beyond national security.
- [08:35]
Andrew Weissmann
Yes.
- [08:35]
Mary McCord
And essentially Justice Jackson said the President's power changes depending on how it interacts with Congress's power. Right. And when Congress has explicitly given certain powers to the President and he enforces those, his power is at its greatest. Right. Then there's this middle area of overlap where Congress has authorized some things but maybe not been clear, and the President has some powers under Article 2 of the Constitution. And this is this what Justice Jackson called the zone of twilight, where there's like overlapping authorities there. And you have to sort of look at what the President has tried to do to see if it exceeds what he is authorized to do and what Congress has authorized. But at its weakest. And we talked about this back when the Supreme Court issued its immunity decision, because that decision making the President immune from criminal prosecutions was giving the President a power to. To basically violate congressionally passed criminal statutes, which is an area that should have been the President's power at its weakest. And I shouldn't say power to violate because he's not authorized to violate. He's just that case give him immunity for those violations. But so let me just read what Justice Jackson said about this time. And this is when a President acts in derivation or against what Congress has explicitly legislated. So here's what Justice Jackson says. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers, minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
- [10:39]
Andrew Weissmann
Can you say that last sentence again? Because that's the key. And to me, that is the tension with the presidential immunity decision because it seems to turn it on its head.
- [10:49]
Mary McCord
Absolutely.
- [10:50]
Andrew Weissmann
But that. Can you just read that sentence again?
- [10:52]
Mary McCord
Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. That equilibrium means the separation of powers.
- [11:09]
Andrew Weissmann
And checks and balances.
- [11:10]
Mary McCord
Yep.
- [11:10]
Andrew Weissmann
Let me just quickly give people an overview. Justice Jackson's background reads loud and clear in this decision. What Mary described is the key part that everyone, every lawyer knows and turns to. But the decision itself is filled with his experience as a lawyer. He was the chief prosecutor in the Nuremberg cases. And that reads loud and clear because that part about caution, he discusses the history of authoritarian regimes and he relates it to the history in the United States, how the President's power has grown far beyond what the framers could have thought and intended and has taken on a life of its own and really talks about and is ringing the alarm about that concern about presidential power and the unique nature of the bully pulpit in this sphere. So that that concern about the caution comes from that history. And the fact that it's Justice Jackson saying it adds that extra dimension of he's lived it and he's seen it at its absolute worst. And to me, to relate it to what we've been talking about in the presidential immunity case, that was exactly what was missing. The ahistoric nature of that decision and not understanding in the big picture and in depth, it was so flat and so, so shallow in its thinking about the nature of our democracy and what's at stake. I was going to give two very quick examples to sort of illustrate issues. If Congress said, we are going to regulate the power of the President to issue pardons, that would be an example of something where the court could say, no, that is exclusive and preclusive to the President. And so there is an area. But let me give you an example that's much more trivial. And Mary, this may resonate with you. When we were at the Department of Justice, every year there would be funding requests to Congress about what would get funded. And Congress would say, you can spend money, Department of Justice, we're going to allocate this, but it's going to be allocated in certain ways. So there was something called ocdef and they would give money for certain prosecutions on certain things.
- [13:39]
Mary McCord
And this was about organized crime and drug trafficking funding. Yes, prosecution of organized crime and drug trafficking, to be clear.
- [13:47]
Andrew Weissmann
And. And sure. Would we like to have taken the OCDETF money and used it for something else that was within the President's executive powers? Absolutely. I mean, you could be like, oh, wouldn't it be great if we could use that for X purpose? But Congress, since they are funding, they get to say what it's going to be spent on. And so then the President can decide, you know, within that structure what to do. But it can't be like, oh, we got money. We're going to use it for anything and everything. We want. And so Congress has this ability because they've got the power of the purse. It's not like they have to just fund anything and everything, and the President can do whatever they want. So those are sort of two examples to give people. Sort of some. Some polls apply it.
- [14:32]
Mary McCord
Yeah, exactly. And what's interesting, too, digging into that history of Youngstown, is listeners will recall in the presidential immunity decision, the majority written by the Chief justice took parts of that paragraph that I read of Justice Jackson talking about when the President's authority is at its lowest ebb, took it out of context in order to support an expansive reading of core presidential functions. Remember, that was a big thing. It was beyond pardons, Andrew, that you just talked about, which we all agree are committed explicitly by the Constitution to the President and things like the veto power exclusively to the President. But the majority took those lines, conclusive and preclusive, and used them to support an expansive definition of core functions. And this is something that Amy Coney Barrett took issue with in her partial concurrence, partial dissent. She took a more limited view of the President's core constitutional powers, recognizing that, quote, Congress has concurrent authority over many government functions, and it may sometimes use that authority to regulate the President's official conduct, including by criminal statute. And here, as you've just pointed out, Congress's authority can be used to regulate spending and many, many other things. And what we're seeing with so many of these executive orders is just no recognition of that. Just a couple examples from Trevor and Adams piece. TikTok. Right. We kind of have not been talking about TikTok since a few weeks ago. But remember, this was a statute that banned platforms in the US from providing TikTok on their platforms. It was a statute. This wasn't an executive order by former President Biden. This was a statute. And that statute went into effect and Trump came in and essentially said, you know, I want to be able to try to negotiate a different deal. And I'm just going to ignore that this statute requires this ban. And he actually said to the platforms, nobody's going to. There's not going to be any enforcement against you while I try to work out this deal. Now, one could say that the discretion to enforce criminal or civil statutes lies with the executive branch. In fact, I would say that. Right, but this is so explicitly in violation of what Congress has intended there. It's a little different than just the exercise of discretion.
- [16:54]
Andrew Weissmann
Well, right, because it's one thing to say we have the discretion not to enforce violations, but if you are the White House counsel and I've been the FBI general counsel. And your head comes to you and says, can I take this action? Remember, everyone has sworn an oath to obey the law. And so it's not a question of whether there are consequences, it's a question of whether you can do it lawfully. It's not can you get away with it? And so the answer from the general counsel or the White House counsel has to be unless there's a like a good faith legal argument for it has to be no, it's against the law. So you can't do it because you can't violate the law. That, by the way, is a perfect.
- [17:39]
Mary McCord
Segue to our next segment. You're absolutely right. But let me talk about burden shifting because that's I think going to be exactly what we see in this next segment. Everything you just said is what we are used to in a normal government under Republican administrations, under Democratic administrations. Governments make sure that what they do, they have a good legal argument for now, sometimes it's challenged, sometimes they lose. But there's a good faith, I think basis. Usually what's happening here is sort of like we don't even care if things are lawful or not. We are going to shift the burden to the people impacted to challenge it. Maybe we'll win in court, maybe we'll lose in court, but somebody else will have to challenge it. Otherwise we're just going to plow right ahead and do whatever we want to do to fulfill the president's policy.
- [18:23]
Andrew Weissmann
That is a perfect segue. So we're going to talk about what's happening at the Department of Justice and including the FBI. But let's take a break and talk about first level set, what's happening, just what is going on and then we'll break it down sort of into the legal components as to what seemed problematic and what doesn't.
- [18:42]
Mary McCord
Sounds good.
- [18:51]
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- [19:02]
Mary McCord
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- [19:18]
Mary McCord
After starting this journey uncompounded semaglutide from Henry meds, I'm down 85 pounds. This journey has been life changing.
- [19:24]
Henry Meds
Go to henrymeds.com Pandora to start your weight management journey today. That's Henrymeds do. Results may vary. Not all patients are eligible. Compounded medications are not FDA approved. Consult a healthcare provider to determine if treatment is right for you.
- [19:37]
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- [20:44]
Andrew Weissmann
Welcome back Mary. Before we get ourselves completely riled up out of this, why don't we just give a level set so that people know what is happening that we know of at the Department of Justice, sort of the lawyer level. What are the steps that have been taken and then what do we know has happened at the FBI and then we'll, then we'll get into deconstructing.
- [21:09]
Mary McCord
Right. So I think we talked a little bit last week about some of the reassignments of highly experienced senior career executive service attorneys at main justice in areas like national security, criminal international affairs and cooperation, civil rights, et cetera. And these are things that it seems like there was an effort to not directly fire them in violation of law, but to just reassign them. And we talked about it in the context of really trying to remove any sort of independence from the department by taking those with expertise who might push back on things and kind of shunting them off to someplace else. And that someplace else, of course, is this newly created working group on sanctuary city enforcement, which is something we definitely are going to have to dive into. But not today. Then we saw the actual firings of a number of the prosecutors who had been on Jack Smith's special counsel team on the investigations of Donald Trump. Just outright firings. Again, these are people, I know some of these people. They've been with the department for a long time. They were with the department before they were signed to Jack Smith's team. They went back to being part of the U.S. attorney's office or the department after the special counsel's office shut down, just outright fired in violation of civil service protections. Next we saw within the Department of Justice a directive that came supposedly through the acting attorney general to the interim U.S. attorney in D.C. to fire a bunch of the prosecutors who had been involved in the January 6 prosecutions of the attackers on the Capitol. So not the Trump January 6th case, but the almost 1600 criminal cases against those who assaulted police officers, committed seditious conspiracy, engaged in destruction of property, caused Congress people and their staffs to run for their lives. Everybody knows all that. I understand. I don't know if it's 100%, but I understand that at least some of these people were people who were hired permanently but were still on probationary status. But here, of course, it was blanket. It wasn't. You're not really performing up to snuff, so we're not going to keep you beyond probation. It, of course, came with none of the notice of a inferior performance and a performance improvement plan or anything like that, just blanket. And I'm still not certain the exact numbers. I've heard at least two dozen. I've heard as many as 40. I think it's somewhere probably in the middle there. And that number is a known thing, but those are people who are just out of a job. And then of course, in the midst of all this, we also heard right before the weekend that notice had gone out to a number of the most senior FBI officials. I think there's six to eight senior people. So at the main headquarters of the FBI, but also at some of the primary field offices told, you're going to be fired on Monday if you do not resign before then.
- [24:10]
Andrew Weissmann
So it's sort of a forced. Yes, you're either fired or it's a forced resignation.
- [24:14]
Mary McCord
That's right. That's right. And you know, yesterday was Monday, I think, and I'm not exactly sure maybe, you know, Andrew, whether those firings took place yesterday or whether I think all.
- [24:26]
Andrew Weissmann
Of those people did this sort of forced the resignation. That's just based on sort of public reporting.
- [24:32]
Mary McCord
Right.
- [24:33]
Andrew Weissmann
So there's that category of people on the so called seventh floor and other senior positions. And it's a collection of people who were told, if you don't resign, you're fired. So certainly it's a significant employment action. But there's more.
- [24:47]
Mary McCord
There's more. That's right.
- [24:49]
Andrew Weissmann
And that's a key issue right now.
- [24:51]
Mary McCord
Yes, it is. There's more. Because there was also a direction that came again from the Acting Assistant Attorney General at the Department of Justice, because, again, that position, Attorney General, is also pending confirmation by the Senate. That's the nomination of Pam Bondi and the Acting AG and the Acting Deputy Attorney General. Emil Beauvais had been very, very busy as wrecking balls, frankly, going through the department. And the next directive was to essentially gather information about every FBI employee, agents, investigators, staff, who in any way, shape or form worked on the January 6th cases. Again, the 1600. Right. The investigation after this violent attack on the Capitol, so that this could be assessed to determine whether some sort of personnel action might be necessary. And we've also heard that potentially those names might be made public. And I just remembered something I forgot to include in this litany of wrecking ball through the Department of Justice, because.
- [25:52]
Andrew Weissmann
It'S everything everywhere, all at once.
- [25:54]
Mary McCord
That's right. It's everything everywhere, all at once. Which is in addition to the interim U.S. attorney in D.C. who does not use the word interim in front of his name.
- [26:03]
Andrew Weissmann
Mary, you're like a dog with a bone.
- [26:05]
Mary McCord
A dog with a bone on that. Because it conveys a different thing if you've been Senate confirmed than if you have not. And he's not even been nominated, much less Senate confirmed. But at any rate, he also directed basically a little witch hunt within his own office. And I think we may have mentioned this last week, which was to have all information about decisions to charge the 1512 C2 offense. That's the offense, obstruction of official proceeding, which was narrowed by the Supreme Court this summer in Fisher, in the Fisher case, which we've talked about before, to pull records from everybody so he could investigate this. What did he call it? I forgot his exact verbiage. Basically a stain on the office for having ever brought those matters. So, you know, I think that I hate to borrow Trump's words of witch hunts, but, boy, that sounds like one. As does this investigation within the FBI. So, Andrew, let's assume you were still sitting over as the General Counsel of the FBI when you start hearing that this is what the acting Attorney General wants the FBI to do. What do you do?
- [27:10]
Andrew Weissmann
So the. It's actually, sorry, the acting Deputy Attorney General, Emil Beauvais, has issued various memos, one of which we can see, one of which we know about because the current acting head of the FBI talked about it and sent out a missive. And to just level set a little bit more. What broke last night was that the current general counsel of the FBI had purportedly said, well, the directive coming from Main justice to turn over this list is lawful, and thus you have to comply with it. Now, I don't know how accurate that is. It's reporting, but to answer your question, if I were sitting there as the still as the general counsel and I was told about this directive to come up with a list of everybody and anybody who touched the January 6th case, in order to assess whether that is lawful, you have to think about, well, what's the reason for the list? If the list is, for instance, that the deputy attorney general said, we want the list because we're going to make it public. We have freed the people who did the crimes. We are essentially giving them license to feel like their law doesn't apply to them. We are unleashing the criminals. But now we're going to put a target on the people who actually did their job and prosecuted these cases, by the way, which would be in keeping with the memo that the acting deputy Attorney general sent out, which is dated January 31, 2025. And I'm just going to read one component of it. This is a quote, this is what the acting deputy attorney general said. Emile Beauvais, who a New York minute ago was Donald Trump's criminal defense lawyer in New York. In New York, in an executive order issued on January 20, 2025, President Trump appropriately, that's Emil Bovet's adjective, appropriately characterized that work involving the January 6 prosecutions as having involved, quote, a grave national injustice that has been perpetrated upon the American people over the last four years. So the question is, why do you want this list of people? He has said that the subject matter is terminations. So he has talked about wanting this because he's concerned about subversive personnel actions. He's concerned about whether these people should be held to heightened scrutiny for personnel actions. So he's picked a category that is impermissible in my view. And if it is either to make the names public and or to hold those people to heightened scrutiny, then that, in my view, violates either the Privacy act or these current civil service rules. If they were doing it to just get a list of the people to commend because they did this, great. But we know for a fact that's not the case, because they are characterizing these righteous cases, which by the way, began under the Trump administration, where everyone, including people like Ted Cruz and other conservative people in Congress, were unanimous in saying what happened in January 6th was bad right afterwards. But this attempt to whitewash everything and to recast it and having the criminals be the paragons and the paragons be criminals, if that's the reason for it, you look at the intent, that's what tells you whether you can participate in this as part of the FBI, because you're looking, this is, to your point, at the current law. And so if I were the general counsel, I would say the current law is that this violates civil service rules. The current law is that this violates the Privacy Act. Whether Donald Trump can make this claim, that Article 2, going back to our first segment, trumps all of the protections of. Just think how far reaching this is that Congress has no power, in fact, funding the FBI to even impose any sort of criteria on protecting the people they're funding.
- [31:24]
Mary McCord
That's right.
- [31:25]
Andrew Weissmann
Right. So if you want to make that claim, you know, go forth. I mean, you have to have a good faith basis. But if you want to make that claim, fine. But I, as the FBI general counsel have to advise on what the current law is and the FBI has taken an oath to report.
- [31:41]
Mary McCord
That's litigation risk. Right. Part of your job when you were there is, let me tell you what the litigation risk here and why the department or the bureau is likely to lose these cases if challenged.
- [31:53]
Andrew Weissmann
Right. With severe consequences to real people. And obviously, one of the things that people on air over the weekend have talked about is just all of the work of the FBI, not just at headquarters in the field, just how much they do to protect, not just on a national security level, but on sort of normal criminal cases, how they help with the plane crashes in Washington and Philadelphia. They catch major criminals, child predators, organized crime, bank robbers, drug traffickers. Just the panoply of good work they do is amazing.
- [32:27]
Mary McCord
Threats to election officials.
- [32:29]
Andrew Weissmann
Yeah. Public corruption. And by the way, the big picture of all of this is not do you defang the FBI so that it can't do its job? But the message is don't take any case on that could come back to haunt you because the next administration is going to target you. And that, by the way, is the reason for civil service. I mean, this is so ahistoric. Going back to Justice Jackson, there is a reason that we no longer have a spoil system where, you know, you win office and suddenly you bring in all of your cronies. And who gets prosecuted, who doesn't get prosecuted is. Is not based on the facts and the law. But look, this is like Earth one trying to talk to Earth two.
- [33:15]
Mary McCord
It is. And, you know, to your point about, you know, recasting the work that the FBI and the prosecutors. Right. Did, some of them, it wasn't like they necessarily raised their hand for these assignments. FBI out in field office, they get leads sent to them about all kinds of investigations. And that lead means go run with this, because we think this is happening in your area. You know, you're in Arizona or you're in North Dakota or you're in Florida. In the FBI field office there, leads come out that people get assigned to do. So it's not as though everybody. Not that this would make a substantive difference, but. Well, I guess it kind of does. But it's not as though everybody on this quote, unquote list is going to have, like, raised their hand and said, I want to. I want to be on the January 16th. They're just doing the jobs assigned to them. But to recast this is somehow subversive and that they were in violation of law. This is also consistent with what we saw the acting Attorney General McHenry talking about with the firings of the lawyers assigned to Jan. 6, when he said they can't be trusted, can't be trusted to carry out the President's agenda. Again, when we're talking about career prosecutors, we're talking about prosecutors who've been doing their jobs under presidents of different parties who understand, as you say so many times, that elections have consequences. There are going to be different policy priorities. You either put up and go with those, or you can certainly leave if you feel like the policies are such that you don't want to engage in those priorities. But what you should not ever be penalized for is doing your job unless there is some evidence of corruption, abuse, you know, misappropriation of power or something like that. And so this verb is used, and the phrase I was looking for from the interim U.S. attorney Ed Martin about the obstruction charges was great failure. He called it a great failure of the office. Again, all of this verbiage is all part of the false narrative about January 6th. So it just feels like a takeover.
- [35:17]
Andrew Weissmann
Which is crazy because, like, this is talk about something that you can see with your own eyes. I mean, let's just go back to. Does everyone remember what it was like watching what was happening, the defilement of our democracy? You could see what was going on and also so many judges carefully scrutinized different roles and tried to give proportional sentences based on what your roles and what you did. And if you did something more minor, you got a lesser sentence if you did something more major. And so it was our justice system at work. Let me just give a brief sense of where we are. Where we are is over the weekend there were lots of reporting that I understand is accurate, that the FBI leadership has been pushing back on the Department of Justice, that they even with respect to the firings of those very seniors, sort of resign or be fired.
- [36:13]
Mary McCord
Right.
- [36:13]
Andrew Weissmann
That they sort of relayed that information to the affected people but were not going to be complicit or approving of it. And so that was being done sort of at the Main justice was carrying that out, not the FBI and the sense that the special agents in charge, the senior leadership, wanted to protect the thousands of people who would be on this list. The other thing that is happening is there is a way for people at Main justice to see into the internal databases at the FBI, so called Sentinel, to get the data themselves without the FBI reporting it. In other words, the list. Now Sentinel is not a perfect system. They could get sort of a imperfect view themselves for it. And so the question is whether the administration, the Main justice building, those people like Amy above, will take action based on that imperfect database and or make those names public. We don't know the answer to that. And so then the third thing is that I do anticipate the way that we have talked about lots of litigation going on, that we will see litigation oddness. And there are a lot of complicated issues that Mary, you and I have noodled over privately and we will discuss if and when that happens. But I think that's sort of the next shoe to drop is you can imagine why the FBI and affected people would want to get some sort of court ruling if they can, before it happens. So for instance, just the most obvious, it's just once the list is out, you can't put that back in the model, right. Or the, what is it, the toothpaste into the tube. I mean, it's out. You can't unring the bell. And so if that was to be made public, ceg the public announcement of pulling the security detail for Mark Milley and Dr. Fauci. So we already have an example of the cruelty in the way these things are carried out. And so if you are those agents and analysts and other FBI personnel, by the way, quick, this is my FBI training, which is everyone always thinks it's just agents and special agents at the FBI are fantastic. But I want to make sure everyone understands that there are tons of career people at the FBI who are invaluable. The support staff, the analysts who are so instrumental to providing intelligence and coordination and information and leads, and the agents. So it's a whole group that's affected everybody. And these, by the way, are career people. I mean, when I say unlike Main justice, where sometimes people come for shorter periods, the FBI people, that's where people spend their entire lives. And so the idea that you're giving it is public service for their entire career. And I just want to make baby end on the sort of the disrespect.
- [39:12]
Mary McCord
Well, we can't end on that.
- [39:13]
Andrew Weissmann
No, I know. You're right. I'm going to end my diatribe on the disrespect for that. We owe them so much. And instead of commending and thanking this is the treatment is for somebody who's worked at the department and the FBI, it's beyond heartbreaking.
- [39:31]
Mary McCord
Yeah, it is. And I know there may be people out there who have had their issues with the FBI. Certainly there are examples throughout history of, you know, civil rights violations and things like that. But you know, on the whole, like, this is such an important law enforcement agency. But before we break, like you may be thinking, because I started out this segment talking about the nominees for attorney General and director of the FBI being pending in front of the Senate. So where the heck is the Senate? Right.
- [40:00]
Andrew Weissmann
Like, great point.
- [40:01]
Mary McCord
You know, we're talking about litigation. We're talking about executive branch overreach. There is another branch of Congress that we talked about in the first segment that does have some power here, both Pam Bondi and Kash Patel. And I don't have any reason to believe they were misrepresenting, but that's something that Senate should find out. Both testified at their confirmation hearings that they would not seek political retribution against prosecutors or employees within doj. FBI agents, analysts, employees within FBI. That that would not be something that they pursued. That is definitely something that is being pursued right now. We have just spent an entire segment talking about it. So the Senate certainly has the power to make them answer before it has any confirmation votes on either one of them. Make them answer. What will they do to stay firm with what they represented to the Senate at their hearings? What will they do to redress this damage?
- [40:59]
Andrew Weissmann
That's the very least. I mean, it really. What's that phrase for? It's like a show hearing. Otherwise, it's like, you know, it's like kabuki theater where there's no substance to it.
- [41:11]
Mary McCord
Say what you want, the reality is different, you know.
- [41:14]
Andrew Weissmann
Yeah. Or it's like a facade in those old western films where it's basically one row deep and then the rest is like a stage set.
- [41:22]
Mary McCord
The Senate should know whether, for example, particularly with Patel who just testified last week, I mean, Bondi was the previous week before some of these things had happened. But they still should ask her too. Like, did you know, were you talking with the people over at the acting ag, the acting deputy ag, the acting FBI director? Did you know that this was going to happen while you sat in front of us under oath and said you would not use the department or the FBI for political retribution?
- [41:50]
Andrew Weissmann
Absolutely. Okay. Shameless plug time. Mary, you have written for Just Security a short piece on exactly what we've been talking about in terms of the confirmation hearings. I actually my piece about sort of how to think about the actions at the bureau, like what Bovet is doing and why it seems illegal to me. I actually wrote about that for Substack and spoke on the contrarian about it. So again, Shameless Plugs some other places.
- [42:18]
Mary McCord
To get a little bit more detail about this stuff.
- [42:20]
Andrew Weissmann
Yeah. If you don't have enough on Main justice, if you want even more Mary and Andrew, there's lots of places to get it. Anyway, Mary's piece, you can also find the link to that as well as Trevor and Adam's piece in our show notes.
- [42:34]
Mary McCord
Okay.
- [42:34]
Andrew Weissmann
Okay. So Mary, that is actually when we turn to this issue of where the hell is the Senate? And that is a good segue to do a little bit of a grab bag as a sort of short overview of where we are in terms of funding this really marvelous decision out of the D.C. district Court. And then I want to ask you about what's happening with your litigation and where we are on that. So let's take a quick break and come back and talk about that briefly to catch people up about where we are and what keep an eye out for this coming week.
- [43:09]
Mary McCord
Sounds good.
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- [45:28]
Mary McCord
So you know, kind of coming back to our theme about executive over reach into Congress's functions or ignoring Congress's functions. We have seen some successful litigation and other litigation pending. We're going to see a whole lot more. We'd like to see Congress start have an oversight hearing, start asking questions about this, start flexing some of its own muscle. Maybe that will come. We certainly saw a number of I think it was only Democrats though. A number of Democratic members of Congress rush to the USAID building yesterday to essentially protest what seemed to be an attempt to shut down usaid, which would be one of these overreaches. USAID was created by statute. And it's not something that the executive can just do away with or even absorb into the Department of State, much less cut off all the funding for without violating congressional statutes. But an even, well, I shouldn't say even bigger issue because honestly these are all so big and so significant. Usaid, you know, is the primary means, means of providing federal humanitarian assistance to people in need across the world. That is, you know, food assistance, it's shelter assistance, it's clean water assistance, it's on and on and on and on and on. And so many partners and agencies and humanitarian workers in these countries and people who are the recipients of this aid have relied on it. And it's a great calling card for the US to be providing that type of assistance. And the numbers are in the many, many, many zeros after the numbers of this type of assistance.
- [47:08]
Andrew Weissmann
And I just want to make sure to something you said, which is that that is in and of itself a good thing. That is what America is supposed to be. But for those people who are thinking, but how is it America first, you know, like thinking of it from a more selfish point of view. It helps them that way also a hundred percent. And so even if you just think about it, we just lived through a pandemic. Dealing with disease globally helps us. Having countries understand that America has a purse strings and can help them is a good way to promote democracy and human rights and our interests abroad in terms of law enforcement and national security. Mary, you know, just on the national security side, how important it is to have those global partnerships. Crime is not limited to nation states. Criminals do not sit there and say, oh, I'm only going to act in America.
- [48:06]
Mary McCord
That's right.
- [48:06]
Andrew Weissmann
They're all across the globe. And so you have to have that approach of multination approach. And you and I both know that happens both in ways that people see and countries that do it behind the scenes. So no matter how you look at this, it is a vital thing to be doing. Whether you look at it as a moral component or whether you look at it as just in terms of self interest and just you're talking about USAID. But the issue before the D.C. court, which was the Office of Management and.
- [48:35]
Mary McCord
Budget, basically the government wide federal funding.
- [48:38]
Andrew Weissmann
Freeze, right now we're talking about money to every Medicare, Medicaid. This is the thing that caused, this is the technical legal term a shit show.
- [48:48]
Mary McCord
Absolutely.
- [48:49]
Andrew Weissmann
Because it basically was, you know what, while we're looking at this trillion dollars.
- [48:54]
Mary McCord
Worth, let's just talk about 3 trillion is what we're talking about on federal fund.
- [48:58]
Andrew Weissmann
This was the order from the White House. Shut everything down.
- [49:01]
Mary McCord
Yep.
- [49:02]
Andrew Weissmann
Just shut it all down now. No due process, no triage, no effort to disentangle the things that are necessary. The people who need the funding for childcare, cancer research, I mean all sorts of things that people need for their livelihood just shut off.
- [49:21]
Mary McCord
Not just they need them, that the government had obligated themselves to provide. Right. These are contracts, these are grants, these are obligated money that people then, you know, NGOs, non governmental organizations, states. Right. States that administer benefits with federal funding, local jurisdictions, you know, all of these healthcare everything. They have a right to rely on these promises of funding that has been already granted and obligated. We're not talking about oh, we're not going to in the future give you another grant. So you've got six months to prepare where you're going to get money someplace else. Like you said, it was just stop now pause everything now. Which did cause you had a great term for it. Utter utter chaos. Right? Utter chaos.
- [50:09]
Andrew Weissmann
That's the difference between you, Mary and me. Utter chaos. C E G. The New York version. Yes.
- [50:16]
Mary McCord
But all are accurate.
- [50:18]
Andrew Weissmann
Yep. This ended up in litigation. Again, we can't cover all of it, but just quickly there is a litigation where a D.C. district judge in your hometown, in your backyard, Mary judge yesterday issued after hearing from both parties having a hearing, arguments made. There's a lot of procedural history. Actually it's already happened. But leaving that aside, where the White House tried to sort of get around the court order. Retract.
- [50:44]
Mary McCord
Retract the OMB memo. Right.
- [50:46]
Andrew Weissmann
Retract and still have it in effect. And the court was not having any of it and issued the temporary restraining order which Mary, we all know what the that is because of our episode last week where you taught us the difference between temporary restraining order and a preliminary injunction. This is definitely law school. Second year law school is what we're on right now. And I have a pull quote that is a quote from it. And we're gonna, we're taking bets. Cuz Mary has one too from that decision. And here's my quote from the judge on page 24 where she says in quotes to say that OMB, the Office of Management and Budget failed to consider an important aspect of the problem would be putting it mildly, unquote. And she was citing from a case where she talks about the standards for review and for issuing a temporary restraining order.
- [51:38]
Mary McCord
So I wish I could show our listeners the highlight on my opinion that highlights that same Line. God, it really is uncanny. This happens almost every time. I also just, you know, we talked about how what happened is there was an executive order that talked about a review of federal funding. Then there was this OMB memorandum that said halt everything. And then right after the litigation, because this was not the first tro, Right. There was another TRO issued last week by a judge in New Hampshire, I think Rhode Island, Rhode Island, Rhode Island. And then what had happened is omb, like after that TRO came out by the judge in Rhode island, said, whoop, we're going to rescind that OMB directive. And so the government, when it came in in front of the D.C. judge, says this case is moot. In other words, this is over. There's nothing to fight anymore because OMB rescinded the memorandum that directed the pause. And this is what the judge was really having no part of. She said defendants plea for a presumption of good faith that, you know they've rescinded this right rings hollow when their own actions contradict their representations. Within hours of OMB's rescission, White House Press Secretary Levitt announced that the rescission was to have no tangible effect on the federal funding freeze. Moreover, she explained that the primary purpose of the rescission was to end any confusion created by the court's injunction. So to avoid litigation, I think one might read that to be she was having none of it.
- [53:06]
Andrew Weissmann
So basically they were like, oh, she, the Rhode island enjoined the OMB memo from going into effect. So they said, fine, so we're taking that away and you should just put it in effect because of the White House executive orders. So it still was the same thing. And the judge says, so you're still doing the same thing. And one of her great points, she goes, and it's too cute by half. One, not just because the press secretary revealed the scheme.
- [53:31]
Mary McCord
Yes.
- [53:31]
Andrew Weissmann
But she said, I'm looking at the executive orders. They don't cover withdrawing funds. Basically, it's directions to agencies like OMB as to what they should do. But they themselves don't cover the full range of actions that are being challenged. So they, they clearly were taking action pursuant to some sort of OMB action because the executors wouldn't allow this. So I mean, I have to say that's where to paraphrase the judge from last week in Birthright Citizenship, where are the lawyers? I mean, Mary, you and I have defended things that we disagree with but are plausible. And it's not a policy we necessarily would do. But, yeah, we could stomach it. It's like, as I said, elections have consequences. This is one where what you can't stomach is you just don't go into court like that. You're, you're just like, I can't do that. Like, this is just, to me, it's the same kind of thing that we've talked about in terms of the executive branch and its treatment of Congress.
- [54:33]
Mary McCord
Yeah.
- [54:34]
Andrew Weissmann
What they're doing here with the courts to say, oh, we're just going to try and pull and have a shell game with you. And, you know, it's nice to see the courts standing up. It's at the district court level, obviously. Much more to be continued. But I mentioned, Mary, a keyword, birthright citizenship. What's going on with your case?
- [54:55]
Mary McCord
Sure. So there is an argument tomorrow in the district court on the motion for preliminary injunction.
- [55:01]
Andrew Weissmann
Where is that?
- [55:02]
Mary McCord
In the District of Maryland. That's in Greenbelt, Maryland. And that is the first argument on a preliminary injunction. There's been one temporary restraining order, TRO issued up in Washington State in a case brought by four states. Our case, of course, represents pregnant women here on different statuses, different lawful but temporary statuses. Asylum seekers who, it's unclear whether the EO applies to them. Undocumented pregnant mothers, those whose babies are entitled when born to US Citizenship under not only the Constitution, but under laws created by Congress. And so there are several of these cases pending in different jurisdictions. This will be the first one to get a hearing on the preliminary injunction, which means a more fulsome briefing than you can do on a tro. And a preliminary injunction, if it's granted, will bar the implementation of that executive order that purports to rescind birthright citizenship for the classes we talked about last week, that is mother's unlawfully present if the father's not a citizen, or an lpr, meaning a green card holder, lawful permanent resident, or lawfully present but temporarily present mothers if the father's not a citizen or lpr. Those are the categories. So our hearing tomorrow is whether to bar that executive order. You know, it's still a preliminary, but it stays in effect until the merits can be reached, in other words, till you can have a final ruling. So it's not uncommon for a case that starts with a preliminary injunction to eventually result in a permanent injunction, just like the preliminary injunction being entered. And that's the final resolution of the case. But even at that preliminary injunction stage, preliminary injunctions are appealable orders, and the denial is appealable, too. So that means that if the court grants an injunction in the case we have brought with our partners at CASA and the Asylum Seeker Advocacy Program, if the court enters that injunction in our case or any of these other cases, that is something that the government would be able to appeal. But again, you know, back to yeah, where we started with executive trying to basically assert this all encompassing executive power unbounded by the Constitution or by statutes. This is one that raises both of those things. An assertion unbounded by the Constitution, the 14th Amendment, an assertion of power unbounded by congressional statutes that grant birthright citizenship.
- [57:34]
Andrew Weissmann
Mary, break a leg. We look forward to getting the next update.
- [57:40]
Mary McCord
My colleague is arguing it, not me. I'm hugely supported. We worked all weekend on the reply brief and it's fantastic.
- [57:46]
Andrew Weissmann
I have no doubt and I think all of our listeners know that if your name is on it, it's going to be fantastic. So with that, let's wrap because you and I both have tons to do in our day jobs. Thanks everybody for listening. Please remember you can subscribe to MSNBC Premium on Apple Podcasts if you want to get this show and other MSNB NBC Originals ad free as well as subscriber only bonus content like the recent Premium episode that we did about marry your testimony before the Senate Judiciary Committee.
- [58:20]
Mary McCord
And also remember to send us a question. You can leave us a voicemail at 917-342-2934 or you can email us at mainjusticequestionsbcuni.com I know we have not got to questions these last few weeks. It has literally been a flood. But we do pay attention to them and sometimes try to work them into what we discuss so that hopefully we are answering at least some of them. And at one point when we come up to take a breath, maybe we'll have a whole segment or even a whole episode on questions. And we couldn't do any of this without our team. This podcast is produced by Vicki Virgolina. Our Associate producer is Jaimaris Perez. Our audio engineer is Katie Lau. Our Head of Audio production is Bryson Barnes. Aisha Turner is the Executive Producer for MSNBC Audio.
- [59:10]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and please follow the series.
- [59:28]
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