“Horsefeathers!”

Summary

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Main Justice – "Horsefeathers!"

Date: February 17, 2026
Hosts: Andrew Weissmann & Mary McCord
Episode Summary by [Your Name]

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Overview

In this episode, “Horsefeathers!”, Andrew Weissmann and Mary McCord confront the escalating politicization and weaponization of the Department of Justice (DOJ) under the renewed Trump administration. Drawing on their legal expertise, they analyze three disturbing recent events:

1. The DOJ’s failed attempt to indict six members of Congress for speech-protected activity
2. The problematic Fulton County search warrant affidavit and what it signals for future elections
3. Landmark due process decisions issued by federal judges, underscoring rule-of-law resilience even in a fraught legal environment

Throughout, the hosts urgently warn against normalization of authoritarian tactics and celebrate rare moments where the justice system pushes back.

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Section 1: DOJ Attempts to Indict Six Members of Congress

[01:46 – 24:07]

Key Points & Insights

• Main Story: The DOJ tried (and failed) to indict six members of Congress (two senators, four representatives) for releasing a video reminding military personnel they have the right to refuse illegal orders.
  • The grand jury refused to indict—a rare rebuke even at the low “probable cause” threshold.
  • The DOJ’s prosecution theory likened these lawmakers to seditious actors like the Oath Keepers, which both hosts found jaw-dropping.
• Andrew emphasizes: “If you don’t think we’re in authoritarianism right now ... it kind of takes your breath away.” [03:16]
• Mary contextualizes: The members were all military or intelligence veterans speaking accurately about legal obligations—not calling for insubordination or naming any specific orders. Their remarks were accurate statements of the law and protected under the First Amendment [07:31 – 08:59].
• Both hosts highlight: The first segment is intended to “not let this normalize ... every week it seems [we’re] getting to a new low, if that’s possible.” [03:40]
• Broken DOJ process: The case was presented not by typical career prosecutors, but politically appointed lawyers (“no career people ... it had to be politicals”) [10:39].
• The Grand Jury’s Role: Grand juries get only the government’s side; the fact that none voted to indict shows “the jury actually followed the law and the facts” [14:52].
• Reminders of elected duty: Members of Congress are expected—indeed constitutionally obligated—to speak out on policy matters; prosecuting them for this is unthinkable.

Notable Quotes

• Andrew Weissmann [02:36]: “Did you ever in your lifetime, ever think that you would have a sentence like that? ... the Department of Justice would seek to charge them with the same crimes as ... the Oath Keepers and the Proud Boys?”
• Mary McCord [08:55]: “It does not sound like a crime to me ... It is an accurate statement of the law.”
• Andrew Weissmann [12:19]: “To me, this is all a continuation of weaponization, but not as a metaphor. It is actual weaponization with real weapons.”

Timestamps for Key Segments

• 01:46: Episode "Horse Feathers" revealed—polite euphemism for “BS”
• 03:16: Refusing to normalize DOJ seeking to indict Congress for free speech
• 07:31: Details on the members' video and its completely lawful content
• 10:39: DOJ: political appointees overstepping; precedent of weaponization
• 14:52: Grand jury process, significance of this unanimous refusal

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Section 2: Judge Leon’s "Horse Feathers" Opinion & Retaliation Against Senator Kelly

[16:36 – 24:07]

Key Points & Insights

• Case summary: After failing to indict, DOJ tried demoting Senator Mark Kelly—Navy veteran and sitting Senator—by reducing his retired pay grade, in clear retaliation for his speech.
  • Judge Richard Leon grants a preliminary injunction against this move.
• Leon’s rebuke: The court held claims “present a justiciable controversy” and rejected the “not reviewable” defense: “In our constitutional republic, it is emphatically the province and duty of the judicial department to say what the law is, not the military.” (Marbury v. Madison) [17:24]
• First Amendment rights: The government’s retaliation was intended to chill speech broadly—a “win-win” for authoritarians even if the target resists [20:04].
• Retired status: Restrictions on speech for active military cannot (legally) be imposed on retirees like Kelly. The government cited a single, irrelevant case from 1896 to justify otherwise—“that tells you how weak this is” [21:52].
• Outlook: Judge Leon’s decision is strong, but DOJ may try other grand juries or appeal, thereby perpetuating the chilling effect.

Notable Quotes

• Mary McCord [17:43]: “He said, Senator Kelly’s First Amendment claim presents a justiciable controversy. Exclamation point!”
• Andrew Weissmann [16:36]: “This is a record of service to our nation that is admirable ... this is what he is going through for continuing that service as a United States senator and speaking out, as is his right.”
• Andrew Weissmann [20:04]: “It’s the fear of this happening … nobody should have to deal with that.”

Timestamps

• 16:36: Judge Leon’s summary of Sen. Kelly’s decorated service
• 17:24: Judge Leon’s Marbury v. Madison citation—“province ... to say what the law is”
• 20:04: Chilling effects of targeting prominent dissenters

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Section 3: The Fulton County Affidavit & the Erosion of Due Process

[25:41 – 42:11]

Key Points & Insights

• Controversy: DOJ secured a search warrant for six boxes of Fulton County ballots, based on an affidavit that both hosts call legally deficient.
  • Issues included alleged ballot duplication, missing images—already reviewed and debunked in prior investigations, many by Republicans.
• Absence of Probable Cause: Purported “if intentional” violations lack any evidence of intent; probable cause for crime is missing [27:21 – 27:33].
• Omitted ‘Brady’ Material: No discussion of witness credibility or bias, lack of exculpatory context—failure to meet the legal duty to present contrary/mitigating information to the judge [28:44 – 32:11].
  • Only minimal nods to counter-evidence are present; several key witnesses are known election-deniers.
• Hosts’ Outrage: Both are incredulous a magistrate judge signed off; compare this to the (rightful) outcry over the Carter Page FISA affidavit [37:30].
• Implications: With ballots now in DOJ custody, fears arise about misuse and its precedent for the looming nationalization of elections.

Notable Quotes

• Mary McCord [26:54]: “Horse feathers to try to use this ... there’s no probable cause of a crime.”
• Andrew Weissmann [28:44]: “Where in God’s green earth was the Brady material? ... it is your requirement as an officer of the court, as an agent presenting something to the court, you have to present ... information about their bias, their motive, their opportunity ... credible or not ... all of the contrary information.”
• Mary McCord [32:11]: “A number of them are governmental witnesses ... who have been part of that sort of pushing election denial fraud in the election claims ever since 2020. That is material to their credibility.”

Timestamps

• 25:41: The Fulton County affidavit segment begins
• 27:21: Explanation of the affidavit’s lack of intent evidence (elemental to probable cause)
• 28:44: Andrew expounds on “Brady” obligations
• 37:30: Comparison to Carter Page FISA warrant and hypocrisy of current DOJ
• 41:46: Need for judicial oversight of seized ballots—“every day matters”

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Section 4: Judicial Pushback—Due Process Decisions by Judge Boasberg & Judge Kelly

[45:04 – 61:39]

Key Points & Insights

• Judge Boasberg’s order: Responds to government’s illegal extraction of foreign nationals under the Alien Enemies Act—explicitly requiring DOJ to facilitate their return for due process, at government expense.
  • Judge sharply rebukes DOJ’s “pound sand” attitude: “The government basically told [the court] to pound sand.” [47:53]
  • Recognizes pattern of government disrespect for rule of law, particularly as victims lack political power (“not white American citizens”) [45:46].
  • Criticizes DOJ’s refusal to propose any remedy or support habeas petitions.
• Judge Kelly’s injunction: Bars the Bureau of Prisons from sending commuted death row inmates to supermax based on a preordained, non-individualized decision ordered by Trump and Bondi.
  • Identifies sham process: “The process provided to plaintiffs was an empty exercise to approve an outcome that was decided before it even began, thereby contravening their due process rights.” [58:46]
  • Highlights that due process must apply even to those convicted of heinous crimes; every citizen (and noncitizen) deserves meaningful legal review.
• **Both judges (Trump appointee Kelly, Obama appointee Boasberg) exemplify judicial courage.

Notable Quotes

• Judge Boasberg (read by Mary, paraphrased) [47:53]: “The government basically told [the court] to pound sand.”
• Andrew Weissmann [54:23]: “These are people who have been convicted of some of the worst crimes ever … and you know what? They’re still entitled to due process. That is what it means.”
• Judge Kelly (read by Andrew) [58:46]: “The process provided to plaintiffs was an empty exercise to approve an outcome that was decided before it even began, thereby contravening their due process rights.”
• Mary McCord [61:06]: “And again, we have given kudos to judges, particularly in the district courts around the country, for a year now. ... by and large, the judicial branch ... is doing their absolute best to try to make sure that the rule of law is adhered to.”

Timestamps

• 45:46: Race and powerlessness as context for DOJ abuses (Boasberg section)
• 47:53: “Pound sand” quote and Boasberg’s indignation
• 54:23: Judge Kelly’s summary of due process, regardless of offense
• 58:46: “Empty exercise” quote—condemning sham process
• 61:06: Celebration of active judiciary—"the rule of law is adhered to"

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Episode Highlights & Memorable Moments

• Repeated “horse feathers” refrain: A polite but biting rebuke for bad-faith legal arguments and sheer government overreach.
• Comparisons to historical abuses: From the Oath Keepers to the Carter Page investigation—a throughline of selective outrage and dangerous double standards.
• Real-time anxiety: Both hosts’ palpable urgency and exasperation as they document “no bottom” in political prosecutions and attacks on due process.

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Tone & Language

• Tone: Somber, urgent, at times darkly humorous (“horse feathers”); fiercely non-normalizing.
• Language: Mix of plainspoken legalese (“probable cause,” “Brady material,” “mens rea”) with accessible analogies.
• Attribution: Hosts freely switch between legal analysis and layperson explanation, prioritizing clarity and alarm.

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Final Takeaways

• The DOJ’s actions against members of Congress, the search and seizure in Fulton County, and the treatment of prisoners/immigrants are symptoms of accelerating legal threats to constitutional democracy.
• Courts—especially district judges operating with integrity—are at times the last bastion of the rule of law.
• The only way to prevent normalization of these abuses is vigilance, transparency, and commitment to core constitutional principles, something “Main Justice” endeavors to model.

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Transcript

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[Andrew Weissmann]

Foreign welcome back to Main Justice. It is Tuesday morning, February 17th. I am Andrew Weissman and I'm here with my co host, Mary McCord. Hi, Mary.

[Mary McCord]

Good morning, Andrew.

[Andrew Weissmann]

Well, before we started, like two seconds before we started, I said, mary, I actually thought of a title for this episode. I have one word for you, Mary. Yes, Horse Feathers.

[Mary McCord]

Oh yes, that is a good one. And we are going to talk about horse feathers in the first segment of today's episode.

[Andrew Weissmann]

Perfect. I decided that horse feathers is the polite version of what Bill Barr said about Trump's claim of fraud in the election in 2020. So we are going to explain to people who are like going, what are you talking about? What are you talking about? So that is like our cliffhanger, Horse Feathers. And it is the polite, more dated version of bs. So Mary, what are our three beats here in this show?

[Mary McCord]

So we are going to start today with the grand jury's refusal to indict six members of Congress, two senators, four representatives last week for exercising their right to free speech and their responsibilities as elected members of Congress to speak out on issues of public concern. And that's not an indictable offense.

[Andrew Weissmann]

Can we just stop for a moment? Did you ever in your lifetime, ever think that you would have a sentence like that?

[Mary McCord]

Nope.

[Andrew Weissmann]

Which is we're going to talk about the grand jury failing to indict, which means DOJ proposing the indictment of six.

[Mary McCord]

I'm going to say refusing to indict instead of failing to indict.

[Andrew Weissmann]

Yes, I like that. I like that. That's actually a great segue to when we talk about it, but it's really worth just stopping to not letting this normalize because it kind of takes your breath away. Because for anyone listening to this, if you don't think we're in authoritarianism right now, and it's not just a fear and risk of it is the sentence that you just uttered, Mary.

[Mary McCord]

Yeah, and that's why we're starting with it, right? That's why we're starting with it. Because, you know, we've been reporting on and discussing the use of the Department of Justice for political prosecutions now for months. But like, we are just every week, it seems, getting to a new low, if that's possible.

[Andrew Weissmann]

There's no bottom. There is no bottom.

[Mary McCord]

That's what it seems. And that's related to the horse brothers, because the other part of this is that Judge Richard Leon in the district court here in D.C. granted a preliminary injunction against Secretary Pete Hegseth's efforts to take away and reduce the pay grade and the title for Senator Kelly, who of course, has had a long and distinguished career in the Navy before he became a senator. And suffice to say Judge Leon said that the arguments that the government was making there were horse feathers. Then we will dissect a little bit this Fulton county affidavit in support of a search warrant. You know, spoiler alert here. I don't think that there was any probable cause of crime in that search warrant. It should never been signed. But it also shows all kinds of other problems.

[Andrew Weissmann]

Mary, I'm just.

[Mary McCord]

Are you in disagreement with me?

[Andrew Weissmann]

I'm just in violent. Violent agreement.

[Mary McCord]

Yeah, I'm shocked to hear that. But it's worth spending some time on that because really, I mean, I just get more and more aggravated when I look at it. And then finally, we are going to end with talking about due process and two important decisions by district court judges last week, one of which will be familiar to people the case, the other will not. One is Judge Boasberg still trying to get due process that means notice and an opportunity to be heard for those men who were unlawfully loaded onto planes way back in March and sent to the terrorist detention center in El Salvador and since then have been sent onward to other places. And some of them still want to get due process and contest that they were ever members of Trende Aragua, to contest that the Alien Enemies act could be used to remove them from this country. And Judge Boasberg has ordered it as a matter of due process. And Judge Tim Kelly of the District court here in D.C. also has ordered, in a case that people may not be familiar with at all, a case where President Biden, at the end of his term, had commuted the sentences of a couple of dozen people on death row, not let them go, but commuted their death sentence to life in prison. And they were in the process of being sent to various penitentiaries when in came the Trump administration and. And basically said, these are violent people who should. Literally the words were go to hell. And they all got sent to the supermax facility without any due process, without any real meaningful ability to challenge putting them there. And people might be thinking, why is that important? And we'll get to that and we'll dive into it in the third segment.

[Andrew Weissmann]

I actually love focusing on that decision because it really gets at what it means to be a country of laws and what due process means. And it's from a judge, Judge Kelly in D.C. who was appointed by Donald.

[Mary McCord]

Trump in the first term.

[Andrew Weissmann]

That has so many lessons to it, because Wade means that you can be appointed by Donald Trump and be and honor your oath of office. He is an excellent judge. It's an excellent opinion, and it's such a wonderful way to end the program. But should we start with the six members of Congress? Yes, Mary, why don't we just remind people what was the sin, what was the outrageous thing that these six members of Congress did that would lead to where the Department of Justice would seek to charge them with the same crimes that you would charge. Oh, let's just say the Oath Keepers and the proud boys who, by the way, were convicted of this crime and then pardoned.

[Mary McCord]

Well, Andrew, don't you know that they produced a video, a short video, back in November?

[Andrew Weissmann]

Well, that's a crime.

[Mary McCord]

Yeah.

[Andrew Weissmann]

And that's just terrible.

[Mary McCord]

At the time when the president was federalizing National Guard and deploying the military into cities like Los Angeles and federalizing National Guard in Portland and Chicago, and when the military was, and still continues, by the way, to be killing alleged members of drug cartels in Strikes in the Caribbean, in the eastern Pacific. And they put out a video that just reminded members of the armed forces that they can refuse illegal orders. And this video was put out by six members of Congress, all who have had careers either in the military or in the intelligence community, and all have served their country. And all know what it means to take an oath to the Constitution and to refuse illegal orders. They did not, I want to be very clear about this. They did not call on service members to disobey any particular order. They did not call attention to any particular order. Even those things I just mentioned that were happening at the time. They did not specifically direct their comments to that. They each spoke about their own personal service, the obligation of service members to the Constitution, and that they can refuse illegal orders. So doesn't sound like a crime to me.

[Andrew Weissmann]

Isn't that an accurate statement of the law?

[Mary McCord]

That is an accurate statement of the law.

[Andrew Weissmann]

So I just want to make sure people understand that this is protected in so many ways, because one, it is an accurate statement of the law. So there's no crime here. It's not seditious conspiracy. It is not in any way some sort of conspiratorial criminal act. Two, in addition to not being a crime, it's protected by the First Amendment. They have the same First Amendment rights that we would have, but they're also members of Congress, which is they have an obligation. They each represent people who put them in that position, and so they have an extra duty and obligation to speak. And I should point out that on Just Security, they have published many, many things on the subject of the attacks in the Caribbean. And one of the conclusions, and we've.

[Mary McCord]

Talked about it here on our podcast.

[Andrew Weissmann]

Yeah, absolutely. And the conclusion in the Just Security pieces is that every reputable international law expert views this as, let's just say, at the very least, highly, highly problematic. What the government is doing in the Caribbean is either a violation of domestic law or a violation of international law, or both. So there's nothing untoward about the idea that this is a problem and a problematic area for the government and for members of Congress to be speaking about this. But all they said was something that is consonant with the law and thus also protected by the First Amendment.

[Mary McCord]

That's right.

[Andrew Weissmann]

What is remarkable here, Mary, is that somebody from the Department of Justice and the reports are it's no career people that it had to be sort of politicals, would present this to a grand jury in D.C. meaning the wheels have come off the wagon. There is nobody exercising the adult grownup supervision that you would expect. And it is a continuation of what we have seen with respect to James Comey, with respect to Letitia James, with, with respect to the announcement of investigations of sitting governors, mayors, the head of the Federal Reserve. But this is actually an effort to indict members of Congress, what is next. And in many ways, that is akin to what ICE is doing. And I'm not saying everyone in ice, and I'm not saying all agents, but if you have people being shot indiscriminately in Minnesota and you announce with no investigation that they are immunized and that they were good shoots, and that happened, just to be clear with Renee Goode, it happened with Alex Preddy, it happened with another individual who was shot, fortunately did not die, and he was charged criminally. And they had to drop that case. And now, thanks, I think, to the Minnesota U.S. attorney's office, that case was dropped and the agents in that case are now under investigation because apparently they lied about what happened there. But to me, this is all a continuation of weaponization, but not as a metaphor. It is actual weaponization with real weapons.

[Mary McCord]

That's right. And I want to just go back to something we glossed a little bit over. We talked a lot about this particular video statement, but to your point about these are members of Congress. These members of Congress, in addition to that video statement, had done something that they are not only constitutionally protected for doing, but also is their obligation as elected members of Congress. It's their obligation to speak on policy matters. And each of them had spoken out about these issues, about the substantive issues of military strikes on alleged members of cartels on the high seas. They had spoken out about the federalization deployment of the National Guard for domestic law enforcement purposes. And these are things you expect your elected members of Congress to speak about. I mean, you don't elect them to go sit there and keep their mouth shut because they're afraid the government will charge them with crimes if they speak out on policy matters. So I think that really gets to sort of how serious this is. And I don't know exactly how reporters know this, and I don't have any way to confirm it, but it was reported in major mainstream news outlets that not a single grand jury voted to indict. Now, that means somebody within that grand jury is speaking to reporters, but that is really remarkable. And it shows. And remember, in a grand jury, it is only the government attorney going in and presenting the evidence of the case to the grand jurors. The proposed defendants do not have the opportunity to go make their pitch or have their attorneys make their pitch to the grand jury. Occasionally attorney might ask for that and in a really weird circumstances, maybe something like that might be permitted. But they're getting a one sided explication of the facts of the case and being asked to, yes, being asked to indict. And so I bet that those, again, not career prosecutors, not people who came from the U.S. attorney's office in D.C. but people that the U.S. attorney Janine Piro brought in from elsewhere. I bet they did not talk to those grand jurors about the First Amendment or the fact that this is protected speech. Yet these grand jurors knew it themselves. They inherently must have understood what are you talking about? You are talking about indicting people for speech and not just any people, members of Congress. And so I'm not one to argue for nullification by jurors, you know, when there's a basis to indict. But it is absolutely jurors and grand jurors duty to say, no, we will not do something that is not supported by the law and we will not.

[Andrew Weissmann]

Do something the law or the facts. Right, the law. Exactly. And just to be clear, the grand jury determination is only a matter of probable cause.

[Mary McCord]

That's right.

[Andrew Weissmann]

Not the finding that's necessary. It just has to be 12 of the how many of the 16 to 23 people who are there? We don't know the number. It has to be 12 and it only has to be probable cause. So it's a relatively low standard and they couldn't muster that. And rightly so. And this is not an example of jury nullification. This is an example of the jury actually following the law and the facts. I wanted to just take a quick moment to say something about who one of the, just one of the six proposed defendants is, Mark Kelly. And it's a good transition to the judge leading to the judge's decision. Yes. And I just think it's useful because you can compare it to the people he's dealing with who put him in this position, whether it's Donald Trump, who, you know, very famously avoided any sort of military service or draft because of a claim of, I believe it was bone spurs. And there are lots of questions been raised about that. But this is just a brief synopsis of R. Kelly's experience that we all owe him a debt of gratitude for. And just to be clear, it doesn't mean if he were to commit a crime, that he's absolved of it. Yeah, it's just to Give you a sense of who we're dealing with. He's a retired United States Navy captain and a sitting United States senator from Arizona. Senator Kelly has a highly decorated record of service to our Nation. He flew 39 combat missions as a naval aviator during the first Gulf War and four space shuttle flights for NASA. In 2011, he retired honorably as a captain with multiple awards for heroic service and dedication to duty.

[Mary McCord]

And that's from Judge Leon's opinion, right?

[Andrew Weissmann]

Exactly. That is a. Regardless of politics, regardless of whether you agree with him or not, that is a record of service to our nation that is admirable.

[Mary McCord]

And.

[Andrew Weissmann]

And this is what he is going through for continuing that service as a United States senator and speaking out, as is his right. So he was now the plaintiff before Judge Leon, and he's making a claim based on a number of things, but the issue is the First Amendment and whether he was retaliated against. Now, there are lots of other claims, but he sought a preliminary injunction in connection with being retaliated for asserting his First Amendment rights. And so how did the judge deal with that particular claim?

[Mary McCord]

And this, of course, had to do with the proposed demotion in rank and pay grade as a retired military officer. And, you know, retired military officers, they get pensions, et cetera, throughout the rest of their life. And so this would dramatically change what he did. Thank goodness.

[Andrew Weissmann]

These are people who put their lives on the line for us.

[Mary McCord]

That's right. So first, it won't surprise anybody. And this is going to be a theme because it's going to come back again that the government argued this is not justiciable in the courts. This is a matter of discretionary determinations by the Secretary of Defense, not the Secretary of War, because we do not have a Department of War. The Secretary of Defense, Pete Hegseth. This is a matter of his discretionary personnel military decisions. And this is not something that is reviewable by the courts. And this is where Judge Leon this was not the particular sentence that he said horse feathers to, but he essentially said horse feathers. He said, Senator Kelly's First Amendment claim presents a justiciable controversy. Exclamation point. He's like, you can't avoid constitutional claims by saying it's not reviewable because this is internal military decision. This is a constitutional First Amendment claim. And Judge Leon says Senator Kelly's claims do not require this court to adjudicate the merits of discretionary military decisions, but only to ask whether defendants actions conform to the law. And in our constitutional republic, it is emphatically the province and duty of the judicial department to say what the law is, not the military. That is a quote from a very famous case, Marbury vs Madison from 1803 that established that principle that it is the judicial Branch, the Article 3 judges who say what the law is. And what he's saying is, you can't avoid review of constitutional claims of by relying on this just being an internal military decision. He then moves on to those constitutional claims and he says, this is First Amendment retaliation. It meets all of the elements. Right. He had been speaking out about these things. The government took action very clearly and explicitly because of that.

[Odoo Advertiser]

Right.

[Mary McCord]

They didn't hide that. This was really based on something else. It was obviously and clearly out in the open that this was retaliation for his videos and for the other things he had done. Speaking out. And it's the kind of retaliation that would make an ordinary person feel chilled, feel like maybe they couldn't speak out. It doesn't matter that Senator Kelly said, I'm not going to stop speaking out. That's not the test. Or you would never have First Amendment retaliation. Right. If you had a person who was strong enough to say, I won't be cowed, I won't shut up. I will continue to exercise my rights. If you had to say, I was cowed to get a lawsuit, that would just completely defeat the First Amendment.

[Andrew Weissmann]

And isn't that the point of this? Isn't that the point of what's going on? Which is that this is a win win because it's so much like what they've been doing with universities, what they've been doing with businesses, with law firms, a type of business in the legal world, which is it's the fear of this happening. And so that's why it doesn't matter whether Senator Kelly is strong, because it's protecting everyone who's in those shoes to say it doesn't matter if you're strong or if you actually would be afraid. It's like nobody should have to deal with that.

[Mary McCord]

That's right. Last thing I'll say before we break is people might be saying, but I thought that when you're in the military, there can be some limits on your speech. That is true. Same when you are in, like any public office, if your speech would so undermine the mission of your government agency. So the mission of the milit. You can be restricted in that when you are a military officer, even when you're speaking on matters of public concern. But first of all, I'd say these things. We don't have to get into the merits of whether this would have been different if he was an active duty military officer. He is retired.

[Andrew Weissmann]

Right. Don't have to reach that.

[Mary McCord]

That's right. He is retired.

[Andrew Weissmann]

He's retired.

[Mary McCord]

And Judge Leon went all through the government saying this should still apply to him. And they said, you haven't been able to point to a single case where these kind of restrictions would apply to a retired military officer. And we all the time look to our retired and our retired high level military officials for their perspectives on policies. This is a very common thing, and we need for them to speak out because of their experience. And he rejected that argument of the government and that was the right thing to do.

[Andrew Weissmann]

There's a reference, Mary, in footnote four on page 21. There is. This is Boyd that I'm going to get.

[Mary McCord]

Yes.

[Andrew Weissmann]

So this is what the government was able to come up with because somebody's retired. Judge Leon says that defendants uncovered one count them one case from 1896. Yes. And there the court goes out of. Wasn't even the same at all. Yeah, exactly that. It's a very, very different issue that was being addressed there. And the whole issue about whether the person was retired or was actually active duty didn't come up in the case. That was not something that was asserted. So that is the one case that, I mean, that tells you how weak this is. It'll be really interesting, Mary, since your inner appellate attorney, I know, is one where they may appeal this, just to have the fear factor continue. They may, just to be clear, go back to different grand juries to try to seek an indictment of the six members of Congress because the law there is. There's no double jeopardy like the way there would be at a criminal trial if there was an acquittal in the grand jury. A grand jury says, no, you can try again. Remember, we've saw that with Letitia James, but we saw the reports that they failed over and over again. Like twice they tried over to do it, didn't work. So for all we know, they're going to try again. It would be preposterous and laughed out of court. It reminds me so much of what happened with Don Lemon where you had a federal magistrate judge say there's no probable cause. You had a district judge opining that he didn't see probable cause. And they went ahead and got a grand jury to manage to indict. But I think that case is going to be circling the drainage. This case would be circling the drain. So the idea, though, is that you keep these alive so that the person thinks twice in the back of their head. They're thinking, do I want this headache? You know what's great? Senator Kelly and Elisa Slotkin have been and others. I don't mean to single just the two of them out. I've seen them be very much, you know what? We're doing our duty and it's great to see that because role models at this time are so important. It is so important to model that behavior because if the goal was to cow them, it's so important for people to see that that's not happening.

[Mary McCord]

Yeah, 100%. Okay, let's take a break. When we come back, we will go to Fulton County.

[Andrew Weissmann]

Sounds good.

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[Mary McCord]

Welcome back. Well, as we foreshadowed at the beginning of the episode, we want to talk about the Fulton county affidavit. When we recorded last week, the judge had ordered that a redacted version be produced by the end of the day that he then promptly made public. And so we've all had a week now to sort of analyze it. I am going to do a shout out to the New York Times because their sort of annotated Version of the affidavit in support of that search warrant has been really helpful to me. It kept me from having to make my own personal chart about all of the things that are wrong with that affidavit. There's two ways to look at this, right? One is that you can go point by point on the things that the affidavit claims were mistakes, errors, things that were wrong about the Fulton County's tabulation and adding up of the ballots. You know, there's issues related to missing images. There's issues related to were there duplicate ballots, there's issues related to where the pristine ballots. And we can get into all that. All of those things have been basically already reviewed, already adjudicated, already rejected. So you can talk about how, you know, I'm just going to say BS to use these as a basis to try to get a search warrant.

[Andrew Weissmann]

Mary, I think you mean horse feathers.

[Mary McCord]

Horse feathers to try to use this. But the other part for you and I, I think is that you can have all of that in there. And there's no probable cause of a crime. First of all, the crime supposedly being investigated, the statute of limitations has long passed. We talked about that last week. But secondly, this is supposed to be about if there were intentional violations that could be a crime.

[Andrew Weissmann]

If.

[Mary McCord]

If.

[Andrew Weissmann]

Notably, that's what the affidavit says. If.

[Mary McCord]

Yeah. And that's not probable cause. Probable cause is. Here is the evidence that provides probable cause a crime has been committed. There's not a person pointed out. There's not any evidence here of intentionality at all.

[Andrew Weissmann]

So just to be clear, a crime has different elements. So when it goes to a jury or grand jury, there's certain elements that the government has to prove. And some of it's like an action. Did the person do this thing, like take this action or did a conspirator take this action? But another is mental state. And you have to be able to show that something happened intentionally. So, for instance, if you knock over a glass of milk by accident, that's a mistake. That's not a crime. Now, if you took the glass of milk and threw it at somebody, that could be assault because it's intentional as opposed to just knocking it over and hits the person. So intent is really important. And what the government has to do is they have to show probable cause for each element. And so what Mary is saying is that with respect to the issue of intent, there's a real dearth in this affidavit of probable cause with respect to the intent of anyone so I'm going to give you my two big overarching pictures. One has to do with this sort of affirmative case, which, by the way, I agree with you wholeheartedly on this issue of mens rea intent.

[Mary McCord]

Yeah.

[Andrew Weissmann]

But I have sort of affirmative case point and I have one sort of what I call Brady obligation point. And so on the big picture, and this comes from reading the Times and also hearing various people talking about all of the work that has been done in various investigations, by the way, by Republicans who were in charge of the Georgia vote. And that is this is a little bit in the weeds. But stay with me. All of the things that Mary talked about about images and pristine ballots, and almost all of that is so irrelevant because what Georgia has is the actual hard copy ballots. So whether they're duplicates and whatever happened to duplicates and scanning the hard copy is there. And so if the hard copy showed some discrepancy, that would be a problem. But that's not what the affidavit says. So it all talks about these things that are just so irrelevant without revealing to the judge sort of pointing out just how irrelevant this is. That's sort of the affirmative. But the big issue I had was I kept on thinking about my role at the U.S. attorney's office, at the fraud section, at the FBI, which is where in God's green earth, and people know me well enough that that's my way of saying horse feathers. Where in God's green earth was the Brady material? And that means what you are obligated to do as a government lawyer and agent is you have to present as part of your obligation to the court, it is your requirement as an officer of the court, as an agent presenting something to the court, you have to present either with respect to sources of evidence, you have to present information about their bias, their motive, their opportunity to see something, whether they've ever been found to have been not a valid expert or lied under oath or whether they're engaging in conspiracy theories. That's sort of one, sort of who is talking tell me more about the source of information that you're citing. The other is you have to cite all of the contrary information. That would be if you're presenting fact A, what are the contrary facts that you know about? And by the way, you have to present those even if you don't believe them. And that is what's called Brady material. It comes from a case called Brady vs. Maryland, which has to do with your due process obligations. And when I used to train people on This I used to say, because this goes back to your point, Mary, that when you go to the grand jury, it's only the government and the grand jurors. Well, when you get a search warrant, it's only the government and the judge. And that means that I used to tell young attorneys, that means you have an extra obligation to make sure that you are presenting that you do not want to ever be in a position where the judge says, why didn't you tell me that? And if you don't have a good explanation for that contrary information, then maybe it should cause you to think twice about whether you present it. And here the only information that I saw in that was Witness four appears to be Gabe Sterling. And even there it is a highly truncated version of things that he says. And so there's just a real complete dearth of information that would satisfy that standard of raising issues.

[Mary McCord]

I think there were a few times, too, Witness 6 talked about this was reviewed, and it was not believed to be a concern because like you said, they had the hard ballots. What mattered to them was who won and who didn't. And what is our proof of that? So there were a few paragraphs in this, I think 20 something page affidavit that showed that something had been reviewed and basically been rejected. So it's like, okay, there's a little bit of Brady, but there's another category here that I think was not at all clear enough of Brady, which is explaining who the different witnesses were. And I will say that when Judge Booley, I'm not sure if I'm pronouncing that right, so apologies to the judge if I'm not the judge who ordered this to be unsealed and made public. He said that only the names of non governmental witnesses should be redacted, but at least according to the New York Times, figuring out sort of who witnesses are, whose names were redacted and they were noted as witness one, Witness two, et cetera, they've been able, through the brief description of those witnesses, to kind of figure out who they were. And a number of them are governmental witnesses whose name should not have been redacted. And even, let's just take Witness two, for example. It did say in the affidavit, witness two is a Republican appointed member of the Georgia State Election Board. Witness two was an obstetrician prior to serving on the state election Board. She served on the Georgia State Election Board since February or March of 2022. And prior to the 2021 Senate runoff, Witness 2 had not worked in an election as a member of the state election board. Witness 2 is tasked with listening to state election board investigative reports and with other members of the board deciding if there's sufficient evidence of violation of election law. So what it didn't say is that witness two is Dr. Janice Johnston. Yes. A retired obstetrician who is involved in the election denial movement. And for many of the other witnesses, it is a cast of characters who, who have been part of that sort of pushing election denial fraud in the election claims ever since 2020. And that is material to their credibility. Right. Because these are people who have engaged in conspiratorial messaging, conspiratorial actions, cases and challenges that have been rejected. And I think that it was important for more of that to be included in this affidavit. But even based on what was included in this affidavit and forgetting the things that were excluded, I am still surprised that a magistrate judge signed off on it because I just don't see probable cause in it. I will also say there is nothing wrong and this happens with a magistrate judge or a judge whoever is presented with a search warrant to say, I don't see it here. If you've got more, bring it to me. In other words, they don't have to accept the piece of paper as it is. They can say, this isn't good enough. Let me ask you some questions like who is this person? What was this person involved with? Bring me more. It's a thumbs up or thumbs down on what is brought. But they can engage in a dialogue and they sometimes will with the agent. Like I'm seeing a weakness here. Do you have something else?

[Andrew Weissmann]

And then if the answer to that is I do, it goes in the affidavit. In other words, it's not like they can just present this and nobody knows about it.

[Mary McCord]

Yes.

[Andrew Weissmann]

The assessment is based on the application has to be under oath or affirmation. So even though you can answer those questions, that can happen informally between the magistrate and the agent or the prosecutor or both, it all gets included. So we don't know what happened. But I agree with you. I don't see how the magistrate signed off on this. Again, I think that the issue of intent, you know, is clearly problematic. This is where I think it's much more of the DOJ's fault, which is the judge isn't there to be like an investigator on. Tell me about all the brady on all these people. Although in this instance everybody knew that this had been investigated up one side and down the Other. And so you could imagine the judge going, where is all that stuff?

[Mary McCord]

That's right. That's why I think this is different. It's so. Well, publicly.

[Andrew Weissmann]

Exactly right. And so here, normally I'd be like, well, it obviously doesn't absolve DOJ at all, but I do have a real issue about why it got signed off on. And this is why it's so important as we're sitting here today, like, why do we care about this? Why do they want these? And right now, some six boxes of ballots. And apparently they don't know exactly what was taken because an inventory was not left, which is typical when you do a search, you even required, you are.

[Mary McCord]

Supposed to document specifically what was taken so that the party knows, so that we.

[Andrew Weissmann]

Exactly. So that apparently has not not happened. It's just like six boxes of material. Yeah, but all those ballots now are who knows where. I mean, they're in the Department of Justice's hands. And I, for one, don't trust what's going on there for the same reason I don't trust what's been represented here. Do you want some irony, by the way, Mary, about this. Do you remember the Kash Patel critique of a warrant that was obtained during the Biden administration on Carter Page? It was an electronic interception Foreign Intelligence Surveillance Act.

[Mary McCord]

Right?

[Andrew Weissmann]

Yeah. So it's a different type of warrant. But Kash Patel, partly rightly and huge part wrongly, but one of the big critiques he had of the Carter Page warrant process was that not all of the Brady material was in there, that it didn't disclose to the judge all of the negative information, all of the bias or motive about what was going on there. And there was an independent review done by the Inspector general of it that found fault with what was in there. And you know, my view of that is like, have at it. If there are mistakes, there shouldn't have been mistakes, and especially not in that one, which was a sort of high profile warrant. But this is goose gander time.

[Mary McCord]

I thought of the Carter Page affidavit at the same time I was reading this too. It's like, okay, so it's a great analogy. A couple more points before we move on, though. You know, everything you just said about where are these boxes, where are these ballots? They're in DOJ custody. That is why Fulton county has filed its lawsuit for the return of all of these. And the judge, the same judge who ordered this affidavit to be made public is a judge who has set a briefing schedule on this motion for the return of the ballots. And in fact, the deadline is today for the Fulton county to file its new motion because it filed a motion without seeing this. Now that it's seen it, it's like, well, we want to amend our motion because we have more things to say about how this was not constitutional and had other problems. There's going to be full briefing, and then I believe on the 27th of February, the judge will have oral argument on that. We have also seen civil rights organizations, the NAACP and others file a motion also about this because they want to protect all the personal identifying information that might be included in these ballots and the seized material. They want to protect that against the government misusing that information. And I think that's very, very important. And that's part of why all of this is so concerning. There was already civil litigation in state court that was likely to result in some of these ballots, like copies, being made available to the public to scrutinize. But now these are all in DOJ's possession. And it almost seems like an avoidance of that process. And now we don't know what DOJ is going to do with them. And as we think through to the midterms coming up and to the things that the president has been saying about nationalizing the elections, which he can't do, and it's which is going to be part of the subject of our special episode that we're going to record this month. I mean, this should make us all concerned because to me, this is all setting that stage for what is going to happen in the midterms. And last point on this, too, and then I'll hand it back to you, is we didn't even get into sort of the cast of characters who has been responsible for this search. We're talking about bringing in a prosecutor from Missouri who's been supportive of election denial. This was not the U.S. attorney in Georgia. We're talking about an FBI agent with almost no experience in this type of an investigation whose former boss in the Atlanta field office had already left.

[Andrew Weissmann]

Left is a polite term.

[Mary McCord]

Yes, that's right. Yes is no longer in that position in the FBI. And this is somebody who worked under him who was maybe the only one they could get to file this affidavit. We don't know. We're talking about this coming on a referral from somebody who has been involved with election denial ever since February 20th. We're talking about someone else being involved in this who is a special government employee who's been involved in election denial. So the cast of characters behind this is really alarming.

[Andrew Weissmann]

So the one thing I'm going to say in terms of we're going to keep our eye on what the judge does for the motion to return the ballots. If I were the judge, you know, obviously I'd wait to see what both sides say. But one thing you could do in the interim is have some oversight over exactly who has these and who has access to them and whether the court or whether a special master or somebody is appointed to make sure that they are not tampered with and that they are kept intact. And that's where every day matters.

[Mary McCord]

That's right.

[Andrew Weissmann]

Because right now we don't know what's going on with all of them. And to your point, this effort to obtain voter rolls and ballots we are going to cover and are special. But this in some ways is the tip of the iceberg about what's going and obviously causes huge concern about free and fair elections. Coming up for the midterms. With that great news, Mary.

[Mary McCord]

Yes.

[Andrew Weissmann]

Let's take a break. And we are going to end though talking about two decisions from your home court, Mary, from Judge Boasberg and Judge Kelly. And they are both wonderful decisions. They should never have had to have been written, but they should give everyone some backbone because they're really lovely, wonderful cases and a great way to end. So you can see judges of different political persuasions, appointed by presidents or different parties, both upholding the rule of law in a very, very even handed way. So let's take a break and come back and discuss those. Sounds. Foreign.

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[Andrew Weissmann]

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[Andrew Weissmann]

Well, welcome back Mary. As you said at the outset, set this case has been pending for quite some time and I think for many of our listeners, they're like, are you kidding me? Aren't these the people who were extracted from our country? There was an issue about the planes were supposed to turn around and they didn't. And the judge was trying to figure out whether it's contempt and then they were shoved into prison overseas, then they were sent to another country and what's going on? At what point is this like justice delayed? Is justice denied? I mean, so we are now in February of 2026 and this all started almost a year ago.

[Mary McCord]

Yes.

[Andrew Weissmann]

And can I just say one thing that I a little bit of a dog with a bone on this, but these are not white American citizens. And it's just worth everyone thinking about sort of unconscious bias and whether that is playing any role. And when I think about the Alex pretty murder, it's horrific. But there's a lot of suffering and horrible things going on to people who are white, who are in black and brown communities, as we talked about, who are citizens, who are non citizens, who are wealthy people, who are primarily not wealthy. And these people don't have a huge political franchise. These are mostly if not exclusively people from black and brown communities who have admittedly been denied due process. And so what's going on? What is Judge Boasberg? What did he decide here and what's sort of the next steps?

[Mary McCord]

Yeah, so this is like you said, the case of some of those who had been extracted from the country under the auspices of the Alien Enemies Act. And he has been trying to get to the bottom of how that happened for months and months and months. Now coming upon a year, really it was March 14th when that happened, March 14th and 15th. And he has said before, for those who want that opportunity, that the Supreme Court, the United States Supreme Court, unanimously said that they should have had, which is notice and an opportunity to be heard as to whether they are members of trend, whether the Alien Enemies act could be used to extract them from this country. For those who want that opportunity, the government needs to facilitate the ability for them to have those hearings. Now, whether those hearings are going to occur enough another country or whether they're going to be brought back here to the United States for those hearings, that has to happen. And it's interesting in this opinion because Judge Boasberg, clearly frustrated, starts out on page one saying, you know, he's been trying to work with the government to get the government to make a proposal about how to actually provide this due process to people. Due process that the Supreme Court said they're entitled to. And he says the government basically told him to pound sand.

[Andrew Weissmann]

Pound sand is a, quote, apparently not interested in participating in this process. The government's responses essentially told the court to pound sand. Now, you know, Judge Boasberg, I've appeared in front of him. You have. Obviously he's sort of a model.

[Mary McCord]

Oh, yes.

[Andrew Weissmann]

Of what do you think of a judge? You know, he's just got a judicial temperament. I read that and I thought, boy, he has really. He's had seen something he has never seen. And the amount of disrespect, not just of him, because I don't think he would react that way, but the amount of disrespect for the rule of law for people who the government has violated their rights and they are not lifting a finger to remedy that. You can feel in this decision how much it bothers him.

[Mary McCord]

Absolutely. I mean, he says defendants at every turn have objected to plaintiffs legitimate proposals without offering a single option for remedying the injury that they inflicted upon the deportees or fulfilling their duty as articulated by the Supreme Court. And he goes through different examples of the government's responding in court filings that we just don't think there's any feasible way to allow these people to file habeas petitions at this time. Just like, sorry, can't do it, like that's not good enough.

[Andrew Weissmann]

That is de facto suspending habeas.

[Mary McCord]

That's right. Now, to be clear, he recognizes that he must Give some deference in the area of foreign policy to the government. And so he says those who are still in Venezuela, basically, I'm not talking about those people right now because ever since we did that somewhat dubious invasion that's putting it mildly of Venezuela and basically took over that country, there's foreign policy issues there, right? But for others, he says you've got to facilitate their return to this country. If they ask for it. That means things like give them the paperwork they need to get on a commercial flight to come back if they want to come back, have that hearing. They know they're going to be put into detention as soon as they get here, but that is fine. If they want to come back and have that habeas hearing and potentially then be able to stay in this country, then you need to make that happen and you need to do it at your expense government. So I think it remains to be seen what the government is going to do now. Will they comply? Will they not comply?

[Andrew Weissmann]

So here's another quote. And then there's one thing that I just think encapsulates the pettiness and cruelty of this administration. The court says against this backdrop and mindful of the flagrancy of the government's violations of the deportees due process rights that landed plaintiffs in this situation, the court refuses to let them languish in the solutionless mire defendants propose. Now here's adding insult to injury. The government has taken the position, well if they want to come back to this country, they have to pay for it. We're not going to pay for it. The government is the one that sent them illegally out of this country. So the plaintiffs correctly say, well if they have to come back, you, the government should have to pay for it because you're the ones who took them to the foreign country. And the court agrees. Yes, but it is unreal. It is unreal that you would take that position when you were the one who illegally took them abroad. And by the way, that's not questionable. It is. The Supreme Court 9:2:0 said that the hearing was required on those issues before, before you deprive them of it. So that didn't happen. And now they're like, oh, we're not paying for it. Make it back on your own. So anyway, that was rejected.

[Mary McCord]

This is what's happening in a different scale here in the United States, right? People are being detained, for example in Minnesota, totally sent down to Texas. They file a habe petition, their lawyer does, they get released in Texas and they gotta get their own Way back to Minnesota. And it has happened over and over and over again. And that's just one example you can.

[Andrew Weissmann]

Understand, because it's not like ICE has a lot of funding. Oh, goodness. Oops.

[Mary McCord]

Yes.

[Andrew Weissmann]

Oops, oops. How many billions do they have? I mean, the cruelty and callousness just metastasizes. Okay, another really interesting decision from Judge Kelly. As you said, he was dealing with a group of plaintiffs who said that their due process rights were violated because when there's sentences where they were facing death and they were on death row, those were commuted by President Biden. We've all talked about. He has that power. So does President Trump has enormous power under the Constitution. And he commuted the sentences from death to life. Not they're out of jail, they're doing life. And that meant that the Bureau of Prisons engages in a normal process of deciding what should be their prison classifications. And they were in the course of doing that when the administration changed, and Trump and then Bondi basically were like, these people deserve to be essentially in supermax. And guess what? They were all put in supermax, except for one who made it eventually into supermax. So the claim by the plaintiffs was that their due process rights were violated. They had a lot of other claims, but the one at issue here was that they were not afforded due process because the decision was already made at the time.

[Mary McCord]

Preordained.

[Andrew Weissmann]

Exactly. It was preordained. In other words, it was a fiction. To sort of paraphrase one of the quotes from Judge Kelly, plaintiff's due process claim is that there is a gap between what defendants say and what defendants did. And that is that the Bureau of Prisons knew, and actually they presented lots of evidence that they were, during the Biden administration, going to be sent to lower classification prisons. And instead, they had direct evidence, as well as tons of circumstantial evidence that the Bureau of Prisons just followed orders. And the orders came from the Deputy Attorney General's office, the Attorney General's office, and the executive order issued by the president. And so all of these people without a meaningful opportunity to be heard, were all being sent to supermax. And the reason I love this case is it is what due process is about. Judge Kelly starts by saying, these are people who have been convicted of some of the worst crimes ever. And you know what? They're still entitled to due process.

[Mary McCord]

That's right.

[Andrew Weissmann]

That is what it means. It reminds me of when Pam Bondi said, let's go just call Abrego Garcia a terrorist, because then people won't care about him. Due process means. And it's something that, Mary, you and I know in our bones, because when you're prosecuting somebody, you may have no love loss for that person, but they're entitled to due process.

[Mary McCord]

And here, as Judge Kelly points out, right, there is a process. Because Supermax is such a restrictive environment. There are all kinds of criteria and processes that the government has to go through before they put a prisoner into Supermax. It takes, like, the recommendation of three different officials. It takes a hearing where the government, those recommending Supermax, have to show why this person is unable to be controlled, has been violent, is a supervisory and security risk. The prisoner gets a chance to try to rebut that. There's an appeal process, right, A lot of processes that the government created because Supermax is a very, very restrictive environment, the most restrictive prison in the United States system of prisons. And so when Judge Kelly says, you didn't get due process, it's because the government created a process. It followed the process, but it was not a meaningful process because the result was preordained. And let me give a few examples of that. There are reports for each prisoner that had been compiled, and those would have the details about that prisoner. And some of these prisoners had no infractions and things like that. So an attorney for the Bureau of Prisons had even told their attorneys before President Trump's executive order, saying to Pam Bondi, the head of doj, do something about this to make sure that these prisoners who are no longer on death row get the kind of punishment that they deserve. Before that happened, the BoP lawyer had talked to all the lawyers for these prisoners and said, we're going through the normal process. I don't think anybody's going to be going to Supermax. We're looking at various placements because they had all been in one place when they were on death row. They'd all been in Terre Haute. So now they don't have to be there. There'll be other places. We're all going through it. And suddenly, after the executive order and after Pam Bondi put out her order, that these people were going to be going into the worst conditions possible, that we're going to make them basically relive the crimes that they had done. Not the exact words, but that was the import of what she said. And again, these are serious, serious, heinous crimes. Then that same official's like, okay, now it looks like everyone's going to supermax. And a few things happened. The reports of each prisoner all concluded with the exact same Recommendation without any variation. And this is what Judge Kelly pointed out. These two sentences. Staff from Psychology Services Branch, Correctional Programs, Division designations and Sentence Computation center and the Office of General Counsel reviewed the inmates security needs. The committee reviewed his history of disciplinary infractions, institutional adjustment, threat to staff and inmates, and current presentation. And it was determined his security concerns were extraordinary and he could be placed in adx. ADX is the word for supermax. And so what Judge Kelly is saying, this same paragraph ended every prisoner's description, even those who didn't have infractions. And he gives a wonderful example. The lack of an individualized explanation in the real relevant redesignation paperwork, thus signaling a predetermined process, is most obvious in plaintiff Julius Robinson's case. Robinson has been incarcerated in terre Haute since June 18, 2002. As far as the records before the court reflect.

[Andrew Weissmann]

I'm sorry, what year was that, Mary? Just to people.

[Mary McCord]

2002.

[Andrew Weissmann]

Right. So long, long time.

[Mary McCord]

In the intervening 23 years, he has received no disciplinary marks on his record. He has worked in the prison as an orderly for years, apparently without incident, regularly engaging with both staff and fellow inmates. Far from causing trouble, he has spent his time taking advantage of the educational programming there, completing dozens of courses. He was apparently baptized in prison as well. Yet the hearing administrator listed the following as Robinson's basis for referral without further explanation, quote, institution staff believes inmate Robinson's placement in other correctional facilities creates a risk to institutional security and good order and poses a risk to the safety of staff, inmates, others, or to public safety. The same basis given for every other plaintiff.

[Andrew Weissmann]

So the court concludes, and this is a quote, that the process provided to plaintiffs was an empty exercise to approve an outcome that was decided before it even began, thereby contravening their due process rights. Think of Alice in Wonderland, off with their head, trial to follow. And then gives another example. Indeed, this is some direct evidence. One plaintiff represents that at his hearing, his hearing administrator, whom he identified by name as Joseph Brian Wilson, quote, admitted that he had to do what attorney General Bondi directed him to do. That plaintiff reported that he asked whether Wilson would recommend me to ADX no matter what plaintiff said to him during the hearing. And Wilson said yes. Here you have Judge Kelly, federal judge appointed by Trump in his first term, saying that he is issuing a preliminary injunction. So it's preliminary, but it's enjoining for the duration of this case. And while it goes on, them being moved to supermax. And it leaves open the possibility that after a normal process, they could be sent there, although it seems highly unlikely with respect to most of them, given the findings here, that they'd be able to satisfy that showing to Judge Kelly. And I have to say this is one where again, I'm not sure there's a really good appeal here because the facts are outrageous.

[Mary McCord]

It's out in the open, right? Like so many things, the retaliation, the predetermination that. Oh, oh, President says treat them harshly. Okay. Treat them harshly. Like it's so obvious and out in the open. They're just not very clever about hiding things. And thank goodness for it.

[Andrew Weissmann]

Honestly, go from this decision to back to what we initially started talking about was what happened to Senator Kelly. And you can see the unitary executive and sort of the lack of due process, the cruelty at play and the obeisance by all of these underlings to what is required by the President, even when, as found by numerous courts, it is against the law. Yeah, this is a word for you, Mary. Horse feathers.

[Mary McCord]

Horse feathers. And that's what the judges are saying. And again, we have given kudos to judges, particularly in the district courts around the country. For a year now. They have been really, really working hard. If anybody thought the job of a federal district court judge is easy, think again. Particularly during this administration, by and large, the judicial branch at that particular, that district court level is doing their your absolute best to try to make sure that the rule of law is adhered to. And that includes basic things like due process and First Amendment rights, all in the Constitution. Okay?

[Andrew Weissmann]

Exactly. Okay, Mary. No, this is like really interesting that you're more triggered than I am. That's hard. Thanks everybody for listening. And remember, you can subscribe to MSNow Premium and get that special episode that we've been talking about ad nauseum. You'll be able to get that that on Apple podcasts and you'll get this show and other MSNow Originals ad free and you'll get subscriber only bonus content.

[Mary McCord]

This podcast is produced by Vicki Virgolina. Our associate producer is Rana Shabazzi and Colette Holcomb is our intern. Greg Devins II and Hazik Bin Ahmed Farad are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.

[Andrew Weissmann]

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

[Mary McCord]

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