Intended Consequences: Race and Retribution

Summary

Main Justice – "Intended Consequences: Race and Retribution"

Date: July 6, 2026
Hosts: Andrew Weissmann & Mary McCord
Featured Theme: Race, retribution, and the latest consequences of recent Supreme Court and DOJ actions under Trump’s second administration, with a focus on justice, rule of law, and the normalization of extreme rhetoric.

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Episode Overview

In this impactful episode, veteran DOJ lawyers Andrew Weissmann and Mary McCord dissect tumultuous legal developments of the week, focusing on the Supreme Court’s controversial ruling ending protections for over a million TPS recipients, the court’s handling of race and retribution, new prosecutions perceived as overreach, and DOJ actions criticized for relentless pursuit and politicization of justice under the Trump administration. The conversation is rich with critique, legal analysis, and personal perspective, with a recurring focus on the normalization of formerly scandalous racist and retributive political actions.

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Key Topics & Discussion Highlights

1. Personal Reflections and July 4th Context

[01:08–03:23]

• Mary McCord returns after a family emergency and pays tribute to hospice workers and her late mother.
• Both hosts express a sense that July 4th in Washington D.C. felt less a civic celebration, more a "personal holiday" for President Trump, foreshadowing the episode’s themes of democracy under strain.

2. Supreme Court’s TPS Decision: Legal & Racial Implications

[04:52–22:40]

What is TPS?

• Mary McCord: “Temporary Protected Status ... provided an entire mechanism for providing humanitarian relief ... to those from other countries who cannot safely return ... they are lawfully here, they pay taxes ... woven into the fabric of this country.” [08:32–09:47]

What Happened and Why It Matters

• The Trump administration, via then-Secretary Kristi Noem, aggressively moved to end TPS, targeting 13 nearly all non-white countries.
• Over a million lawful residents now face imminent deportation and loss of work authorization.

The Lawsuit and Supreme Court Analysis

• Two types of claims were brought: (1) Statutory—did DHS follow Congress-mandated procedures? (2) Constitutional—was the rescission motivated by racial animus? [11:09–13:35]
• Ruling: The Supreme Court held (6-3) that “determination” language in the statute barred all judicial review, even for process violations.
• Quote (summarizing problem, by Mary):

  “It’s not the court that made up that there would be no judicial review ... The TPS statute says there is no judicial review of any determination ... What they say is determination means everything. Nothing is judicially reviewable.” [14:05–15:02]

• Justice Kagan (dissent):

  “Even though Congress put all of these procedures in, you’re now saying they’re unenforceable. And somebody, the Secretary could say, yeah, I didn’t follow any of them whatsoever.” [13:35]

Handling of The Racial Motivation Claim

• The majority declared:

  “None of the cited statements by either the president or the secretary was overtly racial and in substance, all expressed policy views that could rest on race neutral justifications.” (Justice Alito) [17:09]

• Justice Kagan (dissent) denounces whitewashing of racism:

  “The majority claims to see no evidence that race played any role in the Haiti decision. But the evidence is there, plain to see in the President’s statements, which the majority and for that matter his own lawyers cannot even bear to repeat.” [17:53–18:04]

  She then recites the President’s language about “shithole countries,” Haitians “poisoning the blood of our country,” and other explicitly racist tropes—quotes the majority refused to include.

• Mary McCord’s reaction:

  “It is impossible to read the statements by the president or by former DHS Secretary Kristi Noem as anything other than utterly racist ... It is this normalization by a majority of the Supreme Court justices of that type of language ... saying, this would have been scandalous a few years ago, but it’s not anymore. Well, it should be now.” [21:38–22:10]

• Andrew’s summary:

  “I read Justice Alito in a very cynical way, which was saying we now have racist language amongst politicians. And that’s fine.” [22:10]

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3. Transgender Protections and Congressional Power

[24:52–30:50]

• Discussion of the Supreme Court permitting states to prohibit “biological males” from playing on girls/women’s sports teams under Title IX—framed as a state’s right, not a universal ban.
• Andrew and Mary critique a “zero-sum” framing from the majority that denies the real implications of discrimination.
• Justice Gorsuch’s concurrence reemphasizes Congressional spending power and voluntary consent for funding recipients. This provokes a side discussion on growing executive power and the judiciary’s shifting boundaries for Congress and the President.
• Mary McCord:

  “I suspect he [Gorsuch] would draw a distinction between Congress using its spending power to provide money in the sense of Title IX ... but under now the Court’s unitary executive theory ... you get a lot of freedom, but not total freedom ... Congress—and the courts—you guys need to start essentially taking back some power.” [29:56–31:27]

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4. The Prairieland ICE Detention Protest Sentences – Overreach and Inconsistency

[31:30–38:12]

• Protest at Prairieland, Texas ICE facility. Some protestors acted violently; a police officer was shot (non-fatal).

• Major Issue: Federal prosecution described as criminalizing “antifa,” handed out extraordinary sentences:

  • Mary:

    “30 years, 50 years, 70 years. The one who did the shooting, 100 years ... For people who they found guilty of other things like bringing explosives—those explosives were fireworks ... this was about a conspiracy to destroy government property and that got people the rest of their life in prison.” [35:02–36:17]

• Comparisons:
  Even those convicted of joining ISIS received lighter sentences when Mary and Andrew worked at DOJ.

  “There were people convicted of plotting actual attacks ... and they didn’t even get sentences as long as this.” [37:37]

• Andrew: Critiques “out of whack” sentences, judicial judgment, and inconsistencies with similar terror prosecutions.

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5. Overreach in Political Prosecutions: David Hearn and the Reflecting Pool

[38:39–43:13]

• Olympic medalist David Hearn indicted for allegedly damaging the reflecting pool liner—a charge treated with media fanfare and described as severe.
• Andrew:

  “As if you’re trying to blame ... this is such overkill ... an Olympian who ... is supposed to be the main chief culprit ...” [39:02–41:39]

• Mary: Expresses skepticism at the felony charge’s validity—questioning how the government calculated “$1,000 or more” in damages and what the grand jury actually saw.

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6. John Brennan’s Lawsuit: Fights Over Preserving Evidence in Politicized DOJ

[45:22–51:56]

• Context: Former CIA Director Brennan sues in D.C. court demanding the DOJ preserve all records amid fears of evidence destruction if prosecuted, due to politicization and prior government behavior (e.g., use of Signal, noncompliance with the Records Act).
• Complaint details DOJ forum-shopping for pliant prosecutors and judges.
• Mary:

  “This Department of Justice has lost the presumption of regularity.” [51:47–51:56]

• Andrew: Notes importance of venue—Brennan’s alleged crimes occurred in D.C., not Florida (where DOJ is pushing the case before Judge Cannon).

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7. Katie Fang and the Epstein Transparency Act

[52:57–60:11]

• Journalist Katie Fang suing for full release of Epstein Files under new law; government tries to dismiss under procedural pretense, proposes she use FOIA (Freedom of Information Act) instead.

• Judge Sullivan challenged the government’s stall tactics and demanded production.

• Mary:

  “Congress passed ... the Epstein Files Transparency Act, which fully requires the disclosure of a whole lot of different records, even things that would be able to be withheld lawfully under FOIA ... Once Congress has acted to create a different mechanism, that’s the different mechanism that applies, not FOIA.” [54:18–56:38]

• Government's responses repeatedly admit noncompliance without legal justification (e.g., “substantially similar,” “not practicable,” “no deadline yet”).

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Notable Quotes

• Mary McCord [on the Supreme Court’s TPS decision]:

  “It is impossible to read the statements by the president or by former DHS Secretary Kristi Noem as anything other than utterly racist ... It is this normalization by a majority of the Supreme Court justices of that type of language ... saying, this would have been scandalous a few years ago, but it’s not anymore. Well, it should be now.” [21:38–22:10]

• Andrew Weissmann [on the normalization of racism]:

  “I read Justice Alito in a very cynical way, which was saying we now have racist language amongst politicians. And that’s fine.” [22:10]

• Mary McCord [on DOJ sentencing overreach]:

  “There were people convicted of plotting actual attacks ... and they didn’t even get sentences as long as this.” [37:37]

• Andrew Weissmann [on DOJ’s record-keeping violations]:

  “What John Brennan is concerned about is that the government has pronounced that it doesn’t have to comply with [the Records Act] and that people can destroy things if they so choose.” [48:06]

• Mary McCord [on the stakes]:

  “This Department of Justice has lost the presumption of regularity.” [51:56]

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Important Timestamps

• [01:08] – Mary returns, tribute to hospice workers, July 4th under Trump
• [04:52–22:40] – Deep dive on Supreme Court’s TPS decision & the normalization of racist rhetoric
• [24:52–30:50] – Title IX transgender decision, executive vs. congressional power
• [31:30–38:12] – The Prairieland protest case and extraordinary sentences
• [38:39–43:13] – The Olympian/reflecting pool prosecution and sentencing contrast
• [45:22–51:56] – John Brennan’s document preservation suit, forum shopping, DOJ trust
• [52:57–60:11] – Katie Fang and the Epstein Files: DOJ transparency and stall tactics

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Takeaway

This episode of Main Justice starkly highlights how the Supreme Court and DOJ, under the current administration, have not only abandoned or rewritten core legal norms in cases affecting millions, but have actively normalized outright racist rhetoric, judicial non-enforcement, and retribution-based prosecution strategies. Weissmann and McCord, with unsparing candor and clear legal expertise, illuminate just how far the machinery of justice is being bent to personal and political ends—and the chilling consequences we may face for democracy, equality, and the rule of law if the tide is not reversed.

Transcript

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[Mary McCord]

hello and

[Andrew Weissmann]

welcome back to Main Justice. It is Monday morning, July 6th. I'm Andrew Weissman and I'm here with my co host. I should say I'm so happy to be back with you, Mary, and I hope everyone who's listening had a terrific July 4th. There was a celebration of the 250th anniversary of our country. More on that because it's gonna kind of fit in. But Mary, it's nice to see you back.

[Mary McCord]

Well, I'm glad to be back and I appreciate very much you, Andrew, as well as the entire team that produces this podcast week after week. For all the support last week, I, I know that you let our listeners know there was a personal emergency and that emergency was that my mother died. And my mother's one of the best people ever to live on this planet, but she had been suffering from dementia, so in many ways it was a blessing. My siblings and my father were with her and my Ms. Now family was very supportive and I'm really appreciative of that. And I do want to just call out one other group of people because for those of you who have not gone through something like this, the in hospital hospice team of nurses who made sure my mother was comfortable and not in pain through her death was the most miraculous thing I have ever seen. Those people are amazing. If you have to go through this, I highly, highly recommend you take advantage of their skill. Their compassion, their support. They change what is something that could be traumatic into something that feels like it is a natural part of life and is comfortable and is pain free and is with dignity. So thank you to the ECU Health Hospice team.

[Andrew Weissmann]

That is so well said. My mom, as you know, is suffering from dementia as well, and I have the exact same view of hospice. I'd like to dedicate the show to you and your family and thank your mom for raising such a wonderful, wonderful daughter.

[Mary McCord]

Thank you.

[Andrew Weissmann]

And it was very, very odd to do this without you. So it's nice to have you back. And it must have been a very hard July 4th. So our hearts are out to you and your entire family.

[Mary McCord]

Well, thank you. Well, that was hard. Not just because of this, but also because when you're in Washington, D.C. july 4th didn't really feel like the Independence Day of our country. It felt like something that the President was trying to turn into his personal holiday. But we can table that for now.

[Andrew Weissmann]

Yeah.

[Guest Commentator / Co-host]

So I did read a lot of

[Andrew Weissmann]

things about a lot of people reflecting on the 250th anniversary. And it is a moment to reflect on what's good about the country, what's great about the country, the problems in this country. And I know for people listening to this, a call to transform one's feelings into positive action to better the country, for the people coming after us. So I know, Mary, you wanted to talk a bit about some of the things that I certainly did not get to talk about.

[Guest Commentator / Co-host]

This is one of the great things

[Andrew Weissmann]

about this podcast, is it's a conversation.

[Guest Commentator / Co-host]

It's an conversation.

[Mary McCord]

That's right.

[Andrew Weissmann]

And one of the joys is being able to have that conversation. And so it felt very weird to have a monologue.

[Mary McCord]

So I'm glad I didn't have to do that. I'm grateful you did, but I'm actually glad I didn't have to do that.

[Guest Commentator / Co-host]

I mean, totally understand.

[Andrew Weissmann]

Understandable.

[Guest Commentator / Co-host]

But do you realize that was the

[Andrew Weissmann]

first time in three years? Yeah, over three years we have never missed. And that, I mean, the we there is not just you and me, but it's an incredible team behind us. Okay, so, Mary, what are we going to talk about?

[Mary McCord]

So we're going to look back a little bit. One of the cases we didn't get a chance to discuss, and that wasn't one that you were able to dive into last week, is the TPS case. Huge significance for not just the Haitians and Syrians who were at issue in that case, but for over a million people and Some of what the majority said in that case is just jaw dropping. And I think we should talk about it.

[Andrew Weissmann]

Could you just quickly define TPS for

[Mary McCord]

those not in the know, Temporary Protective Status. It is a legal lawful status in the United States and it also carries with it work authorization. And now that is going to be likely terminated for over a million people. Then we'll dig into the latest. You know, we seem to have a segment every week on retribution. There were convictions after a jury trial in a case charged by the federal government in Texas related to riots at an ICE detention center in Prairieland, Texas a year ago. And there certainly crimes were committed. I'm not doubting that. But the case was, I think really overcharged. And the sentences that have been doled out are just again, another jaw dropping all the way up to 100 years. And there was a shooting involved. It was a non fatal shooting. And in comparison to other things, these are really, really extraordinary sentences and an extraordina extraordinary case. But a few other things. We know that now a former Olympian has been charged with a felony related to touching a piece of the lining in the reflecting pool. And we will talk about former CIA Director John Brennan. He served in national security roles under presidents that were Republican and presidents were Democratic for years, decades. And he is now going on the offense and saying, look, you've got investigations into me, I need to get a court order making sure that records that will be relevant to my vindictive prosecution motion. If you ever charge me, I need to make sure those records are not destroyed because we can't trust this government to not destroy records.

[Guest Commentator / Co-host]

Full disclosure for folks.

[Andrew Weissmann]

John is an MSNow contributor and this podcast is produced by MSNow. So we are going to give our objective view on this. And then we have a last segment which was with another former colleague of ours at msnow, Katie Feng. And what are we gonna talk about there, Mary?

[Mary McCord]

Well, she brought a suit really under the Epstein Transparency act because not everything has been produced and there's been redactions of important details. And as a journalist, she brought a case saying this all needs to be produced. A judge even the week before last had ruled that yes, she's right, needed to be produced, partly did that because the government didn't bother to respond on the merits to why it shouldn't be. And he said, look, you didn't respond. I find she's got standing to bring this case. I'm ordering it to be produced or you to show cause why it shouldn't be. The government then did file a response to that. So we'll talk a little bit.

[Andrew Weissmann]

Can't wait to talk to you about that. I found the response fascinating. But, Mary, why don't we start with the Supreme Court? I mean, there was so much that happened last week with the Supreme Court issuing decision after decision. One of them, as you mentioned, is the TPS case. And so what did the court do? And then we can talk about the language that was used, which has been termed the sort of whitewashing of racism. What was the actual decision in a case called Mullen vs Dr. And that's

[Mary McCord]

the name of the secretary of the Department of Homeland Security, Mark Wayne Mullen. So TPS Temporary Protected Status is a congressionally created program that dates back to 1990. Sometimes this had been done just without such a statute before that. But basically it provided an entire mechanism for providing humanitarian relief in the forms of being able to stay in the United States lawfully and have a work permit while you're here in the United States to those from other countries who cannot safely return to their home countries, either because there's like armed conflicts, civil war, that kind of thing going on, or massive humanitarian disasters have taken place that have made it difficult to live there or other things that make it just not safe. And so even though it's called temporary protected status, it is true that sometimes that status has lasted for decades because in some places, they just have not become safe to return to. And in the meantime, people here on that status, right, they have families, they have jobs again, they have work permits, they are lawfully here, they pay taxes. Right? Some eventually get their green cards, some eventually become naturalized citizens, but they're woven into the fabric of this country. Well, Donald Trump has never been a fan of tps. And so under an executive order he signed very early in administration, he basically told dhs, the secretary of dhs, which was Kristi Noem. And all of these things happened under Kristi Noem. Reexamine all of the TPS authorizations and essentially get rid of them. The direction was clear. We don't want to be re extending these things. So the challengers in this particular case were Haitians and Syrians who've been under TPS status for whom Kristi Noem says, we're not renewing the status. But they are just challengers in one case out of many. My organization, icap, we represent Afghans and Cameroonians. There are cases involving people from 13 countries who have challenged because across 13 countries, all predominantly non white countries, what Secretary Noem did is say, I find that the conditions are no longer such that you can't return to your country. And therefore, we are terminating TPS as of particular date. And that means that after that date, if anybody is still here on TPS status and they don't have some other lawful status, a pending asylum application or something like that, they are deportable, they are removable. It happens immediately. And their jobs will say, gosh, you've lost your work permit. We can't continue to employ you.

[Guest Commentator / Co-host]

And so the lawsuits, this particular one,

[Andrew Weissmann]

but as you said, it's true of others, brings two types of claims.

[Mary McCord]

That's right.

[Andrew Weissmann]

One is statutory and one is constitutional under the Equal Protection Clause. In a nutshell, the statutory claim is that the government did not follow the correct procedures. It didn't do a study. It didn't examine whether the conditions that caused there to be TPS protected status have changed. Is it now safe to be there? The record in the particular case before

[Guest Commentator / Co-host]

the Supreme Court was kind of clear

[Andrew Weissmann]

it's not safe because the State Department

[Guest Commentator / Co-host]

had been saying it's not safe. And it still was on its website,

[Andrew Weissmann]

and it was there.

[Mary McCord]

And there's a do not travel there advisory. Right?

[Guest Commentator / Co-host]

Right. So it was clear that their claim

[Andrew Weissmann]

was that obviously the Secretary of DHS didn't do a study, didn't follow the procedures that Congress mandated. In other words, Congress by statute says you have to do A, B, C, D, and E in order to change the TPS program, which you would kind of also understand just as a sort of matter of due process. It's like they wouldn't pull the rug

[Guest Commentator / Co-host]

out from under them because they're here

[Andrew Weissmann]

and they have a reliance interest.

[Guest Commentator / Co-host]

And so that was.

[Andrew Weissmann]

You haven't followed all of the correct procedures.

[Guest Commentator / Co-host]

The second claim was that you were motivated, in part. It doesn't mean that you have to

[Andrew Weissmann]

say it's the sole reason or the

[Guest Commentator / Co-host]

predominant reason, but you were motivated in part by race.

[Andrew Weissmann]

And that was the constitutional equal protection claim. And the first part, the court had a majority decision that was six to three. There's a piece where it didn't get six, and we'll talk about that.

[Guest Commentator / Co-host]

But it was six to three on the statutory claim where the court basically said that that is not enforceable. In other words, Congress put all these restrictions in, but it is also, the

[Andrew Weissmann]

court said, not the court's role to see whether Congress has adhered to those.

[Guest Commentator / Co-host]

And the plaintiffs had been saying, no, no, no, you are conflating too many

[Andrew Weissmann]

things in the decision about the ultimate decision versus the procedure to get to that ultimate decision. And the dissents had been saying, yes, you always should be able to challenge the procedures to get to that ultimate decision. And that's not what the majority said. They sort of essentially said the statutory claims are out for all purposes.

[Guest Commentator / Co-host]

And as Justice Kagan wrote in dissent, I mean, what you're saying is, even though Congress put all of these procedures in, you're now saying they're unenforceable. And somebody, the Secretary could say, yeah, I didn't follow any of them whatsoever. She could blatantly say that.

[Andrew Weissmann]

Which, by the way, the facts here seems to be like, she didn't say that, but you could find that it's

[Mary McCord]

clear she did not.

[Guest Commentator / Co-host]

Right, exactly. So it's akin to it, and the court saying, we don't care that Congress has said no to that.

[Mary McCord]

Just to be clear, it's not the court that made up that there would be no judicial review. Where they're getting this from is that the TPS statute says there is no judicial review of any determination. And that's the key word determination with respect to the designation or termination or extension of the designation of a state for tps. And so the question came down, as you just said, Andrew, did determination mean the ultimate decision? You don't get to question that, but you could still question the process because she didn't follow what Congress said she needed to do, like consult with other departments and agencies, or did determination mean everything? And what they say is determination means everything. Nothing is judicially reviewable. Which leads to the hypotheticals that Justice Kagan mentioned and that you mentioned, which is like, it could be no reason. It could be a clearly, blatantly unlawful reason. And this is basically saying, no, no judicial review. So that's sort of bad enough.

[Guest Commentator / Co-host]

Yes. And you could understand, just to make

[Andrew Weissmann]

it very concrete for people, you could understand Congress saying that once the Secretary has followed the correct procedures, it's done. In other words, there's complete deference to her decision. You don't get to say, but I disagree with her determination that it was safe. Now, that's already amazingly deferential in the statute.

[Guest Commentator / Co-host]

But this Supreme Court takes it even

[Andrew Weissmann]

further to say, even if she doesn't get the evidence and hasn't followed all of the procedures, and it sort of doesn't make a lot of sense that

[Guest Commentator / Co-host]

Congress would put all of those procedures in.

[Mary McCord]

Why bother?

[Andrew Weissmann]

Right?

[Guest Commentator / Co-host]

Because they're not enforceable.

[Andrew Weissmann]

But let's turn now to the part that is truly upsetting to me, which is the equal protection part. I should note that what I would call the worst parts of this decision, the way I read it, is that it is no longer six to three that two of the justices do not join the language in the majority in section what's called 3A.

[Mary McCord]

But that's just about whether you can go on to the merits without resolving the jurisdictional issue. So I think on the equal protection merits, it's still the six.

[Guest Commentator / Co-host]

Yeah, it is on the merits. I just meant in terms of I

[Andrew Weissmann]

think they don't join the worst, the language.

[Mary McCord]

What they don't join is what the what Justice Alito, who writes this opinion does is he says normally we would decide right. Do we have jurisdiction to even rule on the constitutional issue? But because we're up here and we haven't talked about this part yet on a motion for a stay of a lower court's decision enjoining the rescission of tps, everything's a preliminary ruling anyway, which asterisks that means there's still maybe, maybe some hope for other pending cases, but everything's a preliminary ruling anyway. So we could preliminarily say no jurisdiction or we could skip that and go on and say preliminarily there's no merit to the equal protection claim. And so therefore we don't even have to decide the jurisdictional issue. And that is where definitely there's a justice that doesn't agree with that.

[IXL Advertisement Voice]

Yeah.

[Guest Commentator / Co-host]

So then turning to the issue of

[Andrew Weissmann]

whether race infected the decision here or in any way is a motivator the majority and this part is, I believe, six to three. I'm just going to quote from Justice Alito, none of the cited statements by either the president or the secretary was overtly racial and in substance, all expressed policy views that could rest on race neutral justifications. That's the position of the majority. And I just think there's maybe just the best way to deal with this is to quote from Justice Kagan in her dissent where she I think quite rightly takes the majority to task and

[Guest Commentator / Co-host]

says the majority claims to see no.

[Andrew Weissmann]

And that's italicized, no evidence that race played any role in the Haiti decision.

[Guest Commentator / Co-host]

But the evidence is there, plain to see in the president's statements, which the

[Andrew Weissmann]

majority and for that matter his own lawyers cannot even bear to repeat.

[Guest Commentator / Co-host]

And then she then goes on to

[Andrew Weissmann]

give some of those actual quotes. And they're so apparent. But with all due respect, they're important to understand what's going on here as apparent as they are. And for that reason, some of them I think may be familiar to you, but it's Useful to he them together. And here is Justice Kagan. So here are some of those statements. These are the ones that the majority, by the way, has said are not overtly racist. This is a quote from the opinion. Haitians are eating the dogs. They're eating the cats, they're eating, they're eating the pets of the people that live in Springfield, Ohio. And Haitians are also eating other things too, that they're not supposed to be. And Haitians in the United States probably have aids. And Haiti is the shithole country, which is filthy, dirty and disgusting. And Haitian immigration is like a death wish for our country. And Haitians, along with some others, are poisoning the blood of our country.

[Guest Commentator / Co-host]

And why is it we only take

[Andrew Weissmann]

people from shithole countries like Haiti and Somalia? Why can't we have some people from Norway and Sweden?

[Mary McCord]

And she was so right to say, you, Justice Alito, in the majority, you used polite terms and you didn't tell people in your opinion what was really said. And here's actually what Justice Alito said about this heated language. He said in offering these sort of statements as proof that Haiti's TPS termination was motivated by race. The petitioners, actually, they're the respondents, just the way this works out. But those representing the Haitians seek to capitalize on the statement's heated language. Here's what he says. Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago. And the statements cited by the respondents, especially those concerning Haiti and Haitian immigrants to this country, exemplify this development. But whatever one may think of the cited statements, they are insufficient to show the termination of Haiti's TPS designation was based on the race of the Haitian people. Like you say, it doesn't have to be the 100% basis. It has to be a motivating factor. And it is impossible to read the statements by the president or by former DHS Secretary Kristi Noem as anything other than utterly racist. What essentially Alito goes on to say, though the real way he gets around that is saying, ironically, it's these people who are seeking to preserve TPS who have argued that the Trump administration is really against TPS in general and because they're against TPS in general, that shows this is not race based. They just don't like having tps. They just don't like providing any type of refuge or temporarily humanitarian assistance to people from countries where it's too dangerous to be there. And that's his justification. And that I don't know, fig leaf is giving it too much credence, does not bear water. And the reason this has been so important to us to talk about because there's so much that came out at the end of the year and the significance here is so multifold. Right. Over a million people could be affected by this. It is this normalization by a majority of the Supreme Court justices of that type of language that Justice Kagan so rightly cited, like saying, this would have been scandalous a few years ago, but it's not anymore. Well, it should be now. These are human beings, and they're human beings with jobs. And I suspect, Andrew, some of the services and industries where so many of our immigrant community members have worked in health care, for example, in construction, in farming. I think we're going to see a lot of our business leaders and industry leaders and healthcare leaders saying we need some relief here because we cannot bear suddenly losing all of these good employees.

[Andrew Weissmann]

I hope you're right. But I read Justice Alito in a very cynical way, which was saying we now have racist language amongst politicians. And that's fine.

[Mary McCord]

I agree. That's what he said.

[Andrew Weissmann]

And that that is, again, that's my interpretation, that it is something that we now see overt, that we wouldn't have, and we're not doing a damn thing about it, even though it triggers equal protection review. That's the dissent's point.

[Mary McCord]

That's right.

[Guest Commentator / Co-host]

Mary, should we come back?

[Andrew Weissmann]

And I wanted to talk briefly with you about the transgender decision from last week, because we didn't get a chance to talk about that. And to me, it relates in many ways to this. And there was a very interesting point in the Justice Gorsuch concurrence I wanted to raise with you and see what you thought. But let's take a break and come back and we'll do that. And then there are a whole bunch of cases on our dance card to talk about.

[Mary McCord]

Sounds good.

[Rob Lowe]

Hey, everybody, it's Rob Lowe here. If you haven't heard, I have a podcast that's called Literally with Rob Lowe. And basically it's conversations I've had that really make you feel like you're pulling up a chair at an intimate dinner between myself and people that I admire, like Aaron Sorkin or Tiffany Haddish, Demi Moore, Chris Pratt, Michael J. Fox. There are new episodes out every Thursday, so subscribe, please, and listen wherever you get your podcasts.

[Vivgard Hytrulo Advertisement Voice]

I like things my way, my coffee, my schedule, and my treatment. So I talked to my doctor about self injecting with the Vivgard Hytrulo Pre filled syringe which contains fgartegamide alpha and hyaluronidase qvfc. It's injected under your skin subcutaneously. It means I can inject in my space on my time. It's my treatment my way. Visit vivgardmyway.com that's V Y V-G-A-R-T myway.com and talk to your doctor about Vivgard Hytrulo brought to you by Argenics.

[IXL Advertisement Voice]

If you're a parent and want to help set up your child for success, then IXL is right for your family as an effective and affordable online learning program. IXL covers math, language arts, science and social studies using interactive practice problems for kids from Pre K to 12th grade. Listeners can get an exclusive 20% off IXL membership when they sign up [e-mail] 20. Visit ixl.com 20 to get the most effective learning program out there at the best price.

[Mary McCord]

Welcome back as promised. And I know you flagged this last week. You found something interesting about what Justice Gorsuch said in his concurrence in the transgender case. And probably everyone is tracking this is a case where the Supreme Court said under a statute, Title 9, that it is okay for states to have laws that prohibit biological males. That's the term the court used, biological males from playing on women's and girls sports teams. It does not say that states who permit biological males from playing on women's and girls sports team can no longer do that. It leaves that to the states. But it says those laws are okay under Title ix. That's a statute that protects or is trying to create equality. And this is the language on the basis of sex. That's the holding.

[Andrew Weissmann]

And to be clear, there are cases bubbling up challenging the states that do permit consideration. And the Court says we're not ruling on that. And so that is where the next potential shoe to drop. So one quick point about Justice Kavanaugh's majority is that he says that this is a zero sum game, meaning that if we were to grant relief and allow someone to compete who is a biological male, again using the term that the court uses, that you're essentially taking away a position from a biological female. And he says that this zero sum aspect of sports makes this so different than any other way in which discrimination law applies.

[Guest Commentator / Co-host]

And I was like, what planet are you on? I just felt like you have not

[Andrew Weissmann]

been thinking about this issue terribly long.

[Guest Commentator / Co-host]

I mean, we're in a world of limited resources. This Is the world of, oh, if we give this to a minority because

[Andrew Weissmann]

they've been discriminated against, do you realize

[Guest Commentator / Co-host]

you're going to be taking a job away? It's like, yes, that's what it means. I was just really struck by how much it was like, oh, we're doing this, but just, you know, we're really protecting biological females. It was just so backwards in the

[Andrew Weissmann]

way that you think about this.

[Guest Commentator / Co-host]

There's so much more to say about

[Andrew Weissmann]

this case and we don't want to give it short shrift because it is so discriminatory in so many ways, particularly on the equal protection side, more than the statutory claim.

[Guest Commentator / Co-host]

But Justice Gorsuch had a very fascinating comment that in many ways went back

[Andrew Weissmann]

to a concurrence he wrote in the

[Guest Commentator / Co-host]

tariff case where he really talked about congressional power.

[Andrew Weissmann]

Remember, the tariff case is one where the Supreme Court struck down the President's putting into place certain tariffs, saying it is Congress's power, not the President's power. And Gorsuch has this concurrence that we talked about.

[Guest Commentator / Co-host]

It was basically Justice Robert Jackson, without

[Andrew Weissmann]

naming him in terms of talking about congressional power and the need for it. And one of the things that Justice Gorsuch says, and I'm just going to read from it, that provision of the Constitution, the spending clause, which is Congress's powers under the spending clause, he says that provision of the Constitution does not allow Congress to regulate conduct. Instead, it only authorizes Congress to spend money. Of course, and this is the money

[Guest Commentator / Co-host]

line, Congress may seek to condition the

[Andrew Weissmann]

funds it gives to others. But much as with any contract, a funding recipient must voluntarily knowingly assent to those conditions for them to bear any legal force.

[Guest Commentator / Co-host]

So first of all, wouldn't that undermine

[Andrew Weissmann]

the idea in the Cook and Slaughter

[Guest Commentator / Co-host]

cases that, oh, Congress doesn't have to fund these agencies without putting in place the condition, which is not that the

[Andrew Weissmann]

President has no power to remove, which is the way Justice Roberts wrote that opinion.

[Guest Commentator / Co-host]

The whole it is saying is that before you remove the person, you need to have a reason.

[OpportunityAtWork Advertisement Voice]

Yeah.

[Guest Commentator / Co-host]

I mean, it is so minuscule.

[Mary McCord]

So I suspect, and I hate to put words in Justice Gorsuch's mouth, I suspect he would draw a distinction between Congress using its spending power to provide money in the sense of Title 9. So Title 9 means Congress passed this non discrimination equality for women statute that only applies to universities and to schools if they get federal money. Right. Whereas in the case of the funding of federal agencies and the federal government, I suspect he would say that's a completely different bucket. Right. Because that's. Well, your point is fair, but I suppose he would say that's different because the Executive branch has to be funded by the FISC and Congress has to appropriate that. But under now the Court's unitary executive theory. Right. Once you overlay that on top of the spending clause, you get a lot of freedom, but not total freedom because there's definitely been, as you indicated in tariffs. Right. It's not total freedom. Congress can put all kinds of restrictions on it. And I will say in the Slaughter case, the one you talked about last week, which is the case in which the Court said that Humphrey's executor, this 1930s case is overturned, that Congress cannot restrict the President from moving essentially at will heads of so called independent agencies, including multi member heads of independent agencies like the ftc, which was where Rebecca Slaughter had been one of the commission members. And there Justice Gorsuch in that case, in his concurrence, did raise some alarms about putting so much power in the Executive. He says with the ascent of the governed and subject to amendment by them alone, our Constitution created three branches of government and not four. And not just one led by the President either. In other words, not just one led by the President either. I should have emphasized one. Three.

[IXL Advertisement Voice]

Right.

[Mary McCord]

Each branch bears the authority and responsibility to exercise distinct powers. Congress must make the laws that govern us. The Executive branch must faithfully execute those laws, and independent judges and juries must decide disputes that arise under them. So it's like despite various votes in various cases, he's saying there are some worries and the founders didn't want one branch to dominate them all. But that's kind of what's happening right now. Because Congress, you've delegated so much to the Executive, the Executive now, as the Court says, has so much power. Congress and the courts, you guys need to start essentially taking back some power.

[Andrew Weissmann]

Stepping up.

[Mary McCord]

Stepping up.

[Guest Commentator / Co-host]

Okay.

[Andrew Weissmann]

So speaking of the courts, Mary, what was your reaction in the Prairieland case? It is a given here we're not talking about First Amendment protected activity. We're talking about activity that a jury found violated the law, that there was alleged violence or conspiracy to commit violence. Our discussion is not about challenging the underlying facts here or that this was a righteous prosecution. There are lots and lots of things that can be said about the way it was phrased and the way the media has interpreted it to be about antifa and somewhat criminalizing them. But the defendants who were convicted came up for sentencing and Mary, take it from there.

[Mary McCord]

I'm going to Push back on a couple of points there because I do think there were crimes to be prosecuted. I think it was overcharged.

[Guest Commentator / Co-host]

I agree.

[Mary McCord]

I do think a few of the counts, particularly with respect to some of the. They're called zines, it's basically leaflets, flyers that are about people's ideology. Some of the emphasis on that seemed to brush up against some First Amendment protected stuff. Kind of like when we talked about the new case in Minnesota two weeks ago, where you read a 94 page indictment and there's a lot of stuff that's First Amendment protected in there. There's some stuff that's not. This is kind of like that. They talk about a lot of things that are First Amendment protected, but there are things that are not. And this was a number of people that plan to do a loud demonstration, protest at this ICE facility. There were some among them that said they were going to be bringing guns. Certainly not all among them, they were bringing fireworks. They definitely planned to be loud. They had things with them that showed they had planned to deface government property, spray paint, some things like that.

[IXL Advertisement Voice]

Right.

[Mary McCord]

So those things are not protected. But many, many crimes were charged, including, this is the key feature here, one of the people who had brought a gun. Once immigration officials saw that we had this protest, ultimately it gets charged as a riot, this protest. They called for backup from the local police department. The local police department arrived and an officer was shot. He was shot in the shoulder. He was not seriously injured. I believe he was released from the hospital the next day. But there was a shooting that is serious, that is criminal, that should be prosecuted. There were many, many counts against a whole group of people. And the way it was charged in the indictment was that this was. And this is what confused a lot of people across the country because I got lots of calls about this. They were calling this an anti facile and describing this anti FA cell in a way that sounded like this was a prosecution for being a domestic terrorist organization. And as I told many, many reporters, and you probably did too, there is no such thing. Trump can put a label in antifa and called it a domestic terrorist organization, but that does not carry any criminal charge. So the terrorism charge in this indictment was a terrorism charge that is about providing material support to knowing and intending that it be used in furtherance of one of 50 something designated crimes of terrorism. And this is where this gets interesting and I really am getting to your question. There were three possibilities here for what people were providing support and resources to, and that support and resources could include this Type of zines, this type of quote unquote Antarctica paraphernalia. Recruiting of people to engage in an attack on the Prairie Land Detention Center. But as charged, there were three possibilities for what could be the underlying terrorism offense. Two of them were to destroy government property. One was to also to attack a US government official or to kill another person because the police officer who was shot was not a US government official. No immigration agents were shot. I will say I looked at the verdict form. It is clear that the jurors did not agree that it was a conspiracy to provide material support to that attack on a law enforcement official because they not guiltied all of the counts related to violent attacks on human beings. The immigration officials, the law enforcement officials, they not guiltied all of the alleged co conspirators except the one who did the shooting. That means what they agreed to in terms of the conspiracy to provide material support to terrorism is that they conspired to provide support to the destruction of government property. Why is that so important? Because the sentences, 30 years, 50 years, 70 years. The one who did the shooting, 100 years, put him aside for a minute. Still a very, very long sentence for a non fatal shooting. But for people who they found guilty of other things like bringing explosives, those explosives were fireworks. But it's clear from the verdict form this was about a conspiracy to destroy government property and that got people the rest of their life in prison.

[Andrew Weissmann]

And this is one where a lot can be said about the government. But this is your judicial determination?

[Mary McCord]

Yes, that's right. The sentences.

[Andrew Weissmann]

This is one where you really have to, in my view, question the judgment of the judge here because it's so out of whack. And one of the things that the sentencing guidelines try to do is say you have to make sure that the sentences know more than is necessary. Now that's obviously a very loose standard, but also that it is comparable to other cases. In other words, it's the Aristotelian notion that you treat likes alike. That's what it means to have a rule of law country.

[Guest Commentator / Co-host]

And obviously again, that is subjective in

[Andrew Weissmann]

the sense that what are likes, what is in the same group. But here it's very, very hard with the explanation you gave, Mary, to view this as comparable to other sentences for this kind of conduct. Again, putting aside the person who actually did the shooting, where that is really serious and still raises issues, but not the same kind of issues.

[Mary McCord]

Let me just ask you the one thing we didn't talk about because we're talking about comparable sentences. Like I certainly was involved in many cases involving those convicted of going to join isis. Right. A designated foreign terrorist organization that was committing not only atrocities abroad, but was encouraging attacks here in the homeland. There were people convicted of plotting actual attacks that were totally meant to be violent here. And we would prosecute when I was at doj, those people for material support to a foreign terrorist organization. And they didn't even get sentences as long as this.

[Andrew Weissmann]

Yeah.

[Guest Commentator / Co-host]

So this is maybe a way to

[Andrew Weissmann]

transition to the recent indictment of somebody who is an Olympic medalist, David Hearn. And here he is just charged. So he hasn't been convicted at all, but he was charged. And that means we are talking not about a judge, we're talking about the decision of the D.C. u.S. Attorney, Janine Pirro. And obviously a grand jury had to determine that there was probable cause.

[Guest Commentator / Co-host]

And this is a felony count with

[Andrew Weissmann]

respect to the destruction of the lining of the reflecting pool. And this is one where Jean Pirro and I listened to her entire press conference talking about this and denigrating him as a vandal and rude and obstructive.

[Guest Commentator / Co-host]

But this is one where it seems

[Andrew Weissmann]

like such overkill in having a press conference on this, as if you're trying to blame the.

[Guest Commentator / Co-host]

And let's assume, by the way, that he did it. We don't know what the proof will be. Let's assume that he reached into the pool and really tore off, even if it was slightly coming apart anyway, but really reached down and tore off a

[Andrew Weissmann]

segment of the liner.

[Guest Commentator / Co-host]

And I'm just assuming that because we

[Andrew Weissmann]

don't know what's there.

[Guest Commentator / Co-host]

By the way, there is a video

[Andrew Weissmann]

that you can get from somebody who is there and you don't actually see his hands in the water, but you see him, what appears to be after the fact. And a lot of people comment on why are his hands not wet.

[Guest Commentator / Co-host]

It seems really odd. One theory is he put his hands in and he ripped something out from the bottom. The other theory is it's floating or partially detached, it's detritus. And he's picking it up.

[Andrew Weissmann]

And the park police basically say put it down.

[Guest Commentator / Co-host]

And he does. We don't know yet because it hasn't

[Andrew Weissmann]

gone to trial which of those are.

[Guest Commentator / Co-host]

But it really seems to have zero to do with the idea that this

[Andrew Weissmann]

was something that I think we were told no taxpayer dollars were going to be spent. It's like a frolic and detour by the President.

[Guest Commentator / Co-host]

It was done in a no bid

[Andrew Weissmann]

contract and it seems to be done completely defectively.

[Guest Commentator / Co-host]

And then this bogus claim that oh, no, it's defective because of vandals. And then this doesn't in any way support the idea that it was all done by vandals, because there's no claim that he was responsible for all of this. So it's so incredible that this is. If you listen to Jeanine Pierre's press conference, you're looking at this going, I'm sorry, what is an attack on January 6 and defecating in the Capitol and assaulting violently police officers and actually destroying the capital of the United States on video. That is pardoned as a grave national injustice. Those terms grave national injustice were used by the President. It was used by the nominee to be the Attorney General, the sitting deputy Attorney General, and acting Attorney General Todd Blanche as a grave national injustice. Take that as one.

[Mary McCord]

That's right.

[Guest Commentator / Co-host]

What is it? Thing one.

[Mary McCord]

Yes, Thing one. Or as Nicole Wallace says, right, Earth one.

[Guest Commentator / Co-host]

Now we go to Earth two, and Earth two is like an Olympian who after the presses all over the fact that the lining is coming detached and unglued, and he is supposed to be the main chief culprit.

[Mary McCord]

And you know, that's another thing to contrast with the prairie land, right? Talk about an attack and everyone pardoned versus this, where we've got some destruction and property. And yes, there was a shooting, but we have 30, 50, 70 and 100 year sentences. I will say with respect to this, because I was a little surprised that a Superior court grand jury. This is not a federal charge. This is a DC Code charge, returned an indictment, and it has to be $1,000 or more worth of damage to be a felony. And I'm not sure exactly what proof they would have put in because certainly even if he picked up a bit of the liner under either theory of tearing it or picking up it floating, I don't think he could be responsible for whatever the $17 million or whatever it supposedly cost to put this lining down. But given all the things we've seen, Andrew, and we've talked about over these last months about grand jury presentations, if I was his attorney, I would be asking for the judge to look at the transcripts and see what this grand jury was told, because this is the same, not necessarily the same grand jurors, but drawing from the same pool of people that refused to indict Sandwich Guy. Right. And I'm a little bit surprised that they indicted this. But if you're just on probable cause to something we've talked about before and they've got an agent, and I assume this was part of Rapid indictment like an agency says he was witnessed pulling the liner. The cost is X amount of dollars and you don't have anything on the other side of that. The grand jurors might have said, okay, that's probable cause. But but I would want to know what they were told.

[Guest Commentator / Co-host]

Yeah, and I just want to be fair.

[Andrew Weissmann]

We don't know the exact nature of the proof here. And our point is that even if you take the worst case scenario, we're really seeing in our view, at the very least, judgment that is out of whack. That's right.

[Guest Commentator / Co-host]

Speaking of which, should we take a

[Andrew Weissmann]

break and come back and talk about John Brennan and Katie Fang?

[Mary McCord]

Yes, let's do it.

[Guest Commentator / Co-host]

Foreign.

[Rob Lowe]

Hey everybody, it's Rob Lowe here. If you haven't heard, I have a podcast that's called Literally with Rob Lowe and basically it's conversations I've had that really make you feel like you're pulling up a chair at an intimate dinner between myself and people that I admire, like Aaron Sorkin or Tiffany Haddish, Demi Moore, Chris Pratt, Michael J. Fox. There are new episodes out every Thursday, so subscribe please and listen wherever you get your podcasts.

[Vivgard Hytrulo Advertisement Voice]

I like things my way, my coffee, my schedule and my treatment. So I talked to my doctor about self injecting with the Vivgard Hytrulo pre filled syringe, which contains fgartegamide alpha and hyaluronidase qvr. It's injected under your skin subcutaneously. It means I can inject in my space on my time. It's my treatment my way. Visit vivgartmyway.com that's V Y V G-A-R-T myway.com and talk to your doctor about Vivgard Hytrulo brought to you by Argenics.

[IXL Advertisement Voice]

If you're a parent and want to help set up your child for success, then IXL is right for your family as an effective and affordable online learning program. IXL covers math, language arts, science and social studies using interactive practice problems for kids from Pre K to 12th grade. Listeners can get an exclusive 20% off IXL membership when they sign up [e-mail] 20. Visit ixl.com 20 to get the most effective learning program out there at the best price.

[Andrew Weissmann]

So this past week John Brennan brought a lawsuit in D.C. so we're still in the D.C. federal court and some people may be going, what's it about? Because I know he's under investigation seemingly in Florida. I mean, that criminal case seems to have bounced around to Various offices, but now seems to be one that the grand jury is looking at him in Florida. But he has brought a case affirmatively, a civil case in D.C. where he says, I need them to make sure them being the government, to preserve documents, I am concerned that if I get charged that they will not have preserved exculpatory documents, documents that could help me show vindictive and selective prosecution. And he says that my basis for this first, obviously, for examples of vindictive and selective prosecution, that obviously is legion. You could start with Abrego Garcia, but then you could go to so many people we've talked about James Comey, Letitia, James, Jerome Powell, so many.

[Guest Commentator / Co-host]

But the issue of why he's concerned

[Andrew Weissmann]

about the preservation of documents. He says there's two things. There's advertent and inadvertent issue.

[Guest Commentator / Co-host]

And he says, one, we've read tons

[Andrew Weissmann]

of stories about the use of apps like Signal, where people may still be using theirs. And we keep on hearing reports of

[Guest Commentator / Co-host]

the use of Signal, and that is

[Andrew Weissmann]

information that is outside of government processes to retain documents. And in fact, they can be set to delete what's on Signal almost daily and wipe it clean so that there won't be a record. And those are government documents. And so they can be using communication methodologies where they're not actually doing what they're supposed to do. I know this is most people listening to this are going, well, of course. So that's what John's worried about, which

[Guest Commentator / Co-host]

is that that's the least of the

[Andrew Weissmann]

lawlessness that we've been seeing. And the second he says is there's reason to think that they're not complying with the law. And in fact, OLC has been reported to have given an opinion saying that the president and the executive branch is not bound by the Presidential Records act, which requires that. Mary, you and I know, I know it so well from when my time at the FBI, because we had to make sure that we preserved documents, particularly with respect to Director Mueller. And we had a whole protocol that

[Guest Commentator / Co-host]

was, as you could imagine, because it's. The FBI was so buttoned down to

[Andrew Weissmann]

make sure that everything was collected and sifted and retained and then produced as required to the authorities. And here, what John Brennan is concerned about is that the government has pronounced

[Guest Commentator / Co-host]

that it doesn't have to comply with

[Andrew Weissmann]

that and that people can destroy things if they so choose. So he's gone to court saying, I want to make sure that all of this will be preserved. And I thought it was really smart one, because he wants to make sure that this evidence is there. And two, it got him before a judge to help counteract the judge shopping on the other side. Because you see this case being manipulated, in my view, to have it go before Judge Cannon in Florida. When you're thinking, what did John Brennan do in Florida if he's alleged to have lied before Congress, that's in Washington, D.C. if he was doing something to obstruct or to interfere, that was also going to be either where he lives in the Washington area, but it's not in Florida. And so there's such a tenuous ability to tie him to the venue. By the way, the Constitution requires that you be charged in the venue where the crime occurred. And now, obviously, some crimes occur in many different venues, but it's really hard to see how this occurred in Florida. And so you see this effort by the government to bring it before what they perceive, I think, correctly, as a judge who's very favorable to them. And this gets John in front of a judge who, I'm not saying that the judge will be favorable to him,

[Guest Commentator / Co-host]

but will be favorable to the law

[Andrew Weissmann]

and the facts and won't have some preconceived view. And so it gets him before another judge who can hear his case also

[Mary McCord]

legitimately, he's gotta be worried they're destroying records. And a lot of what you said in terms of why he's concerned about destruction of records, one of the things that's really interesting to read about this complaint is, and they're moving for an injunction against the destruction or a mandamus, a writ of mandamus barring any kind of destruction of records, is he recounts so many of the things that we've been talking about for months and months that he says have undermined any presumption of regularity when it comes to the government. Because so much of the government's misconduct, and just a litany that he lists before going into detail after detail of examples of each one of these things, these are the things he's flagging for the court. Among these activities of the government, activities that he says the Department of Justice officials have engaged in a variety of inappropriate activities in their attempt to build a prosecutable case. Among these are the following. Each one of these has details about it. Issuing pronouncements that evince a preconceived belief in Director Brennan's guilt. Making statements that disclose matters relating to open grand jury investigations. Reportedly removing or sidelining career prosecutors who have balked at using the criminal process to promote the president's retribution agenda, engaging in apparent forum shopping by moving the investigations to federal district in an effort to find a sufficiently pliant United States Attorney and engaging in apparent judge shopping. To your point, this according to a footnote, there's information in an appendix that says it was public knowledge that the investigations targeting Director Brennan had migrated through the U.S. attorney's offices for the Eastern District of Pennsylvania to the Eastern District of of Virginia before finding a home in the Southern District of Florida. Recent reporting also indicates that FBI Director Cash Patel shopped the investigations to the Western District of Virginia. So they were trying to find a place with a pliant U.S. attorney who would do it and a good judge. And where did they end up? In Judge Cannon's courthouse. So way more to come on this. I think it's an important and bold move. But also there's a lot of really valid, legitimate legal reasons that this should be granted because this Department of Justice has lost the presumption of regularity.

[Andrew Weissmann]

And this is one where it's a very easy response. You could say, well, of course we're going to produce everything and we've retained everything and there's nothing happening on signal that we're not getting, et cetera, et cetera. And their response will be interesting if they actually respond on the merits. So we will follow this closely. Speaking about document production, Katie Fung has brought a case related to five categories of information that she says have not been produced by the government related to the Epstein investigation and are required, she contended, to be produced under the Epstein Transparency Act. And Emmett Sullivan, the federal judge in D.C. in charge of this, gave until July 2 the government to respond to either comply or to explain why it wasn't. And they obviously make lots of claims about standing and lots of hyperbole and press conferency type language here.

[Guest Commentator / Co-host]

But I found really fascinating what it conceded. So first it said, you know, we never concede that we didn't respond before on the merits. One, it said you should dismiss this

[Andrew Weissmann]

because Katie can bring her case as a foia, which is the Freedom of Information Act.

[Guest Commentator / Co-host]

And that just seems so bogus.

[Andrew Weissmann]

And the judge had already said that seems bogus because you wouldn't get those documents under foia.

[Mary McCord]

There's exceptions.

[Guest Commentator / Co-host]

So in other words, the judge was dealing with, oh, you brought the case

[Andrew Weissmann]

saying you need to comply with the Epstein Transparency act and going under the Freedom of Information act wouldn't work because the government has actual defenses there that would preclude emphasis. But those don't exist under the Epstein Transparency Act. So the government comes in now and

[Guest Commentator / Co-host]

says, no, no, no, this should be dismissed because she should file her case under foia. But what's so obvious is they never say, and by the way, we'd produce them under foia. And so it's just saying you should get rid of the case under the Absolute Transparency act because if she has

[Andrew Weissmann]

to bring it under foia, we'll deny it.

[Guest Commentator / Co-host]

It's just unbelievable because you could see the judge going, well, obviously I'm correct that, that the FOIA statute doesn't supplant

[Andrew Weissmann]

the Epstein Transparency act, because are you

[Guest Commentator / Co-host]

saying you would produce everything if I

[Andrew Weissmann]

just transformed this case into a FOIA case?

[Guest Commentator / Co-host]

It's so sleight of hand.

[Andrew Weissmann]

Of course not.

[Mary McCord]

And here's why. This is different, right? Because we have a different act, foia. Yes, that is the normal mechanism when you want to get government records. But guess what happened here? Congress passed and the President signed the Epstein Files Transparency act act, which fully requires the disclosure of a whole lot of different records, even things that would be able to be withheld lawfully under foia. So once Congress has act to create a different mechanism, that's the different mechanism that applies, not foia. Now, one of the government's beefs is, well, yeah, but under the Epstein Files Transparency act, which they call efta, that doesn't create any cause of action for Katie Fang, as a journalist, to bring a lawsuit. And this is what I love, and I'm sure you will too. And our listeners know we cite the Youngstown steel seizure case practically every week for what it says about presidential power and presidential lack of power where Congress has asserted authority. But here the government is citing Youngstown for why Katie Fang should not have a cause of action. It says the court in its ruling had concluded that private litigants may enforce the provisions of efta. The Epstein Files Transparency act through the Administrative Procedure Act. That's where it says when it's final agency action. And here that was to do redactions, et cetera, that you can challenge that final agency action here. I love this. The government must reiterate its strong disagreement with that conclusion, which threatens to disrupt the, quote, interdependence and quote, reciprocity that has characterized the relationship between Congress and the executive branch as the department implements the efta. See Youngstown Jackson J. Concurring. Then he goes on to say, any disputes about the production of documents are best hashed out in the hurly burly, the give and take of the political process between the legislative and the executive, and that is citing the Trump v. Mazars case, which is a case from the first Trump administration where there was an effort to get particular bank records held by Mazars or Mazars. I was never exactly sure. So it's just so interesting to see them trying to rely on this Youngstown decision to actually support the government's position here.

[Andrew Weissmann]

Yes.

[Guest Commentator / Co-host]

So turning to some of the actual

[Andrew Weissmann]

things that Katie wants, and what I thought was fascinating was that the government basically had to concede that it wasn't in compliance or made very little sense. So here's one of the categories. The court has ordered the Department to either produce to the public the underlying FBI interview notes that form the basis for the reports, or to explain why it hasn't. The government comes back and says, we didn't produce the underlying notes because they're

[Guest Commentator / Co-host]

substantially similar to the ultimate report. My view of that is they're not saying identical. And the Epstein Transparency act doesn't have

[Andrew Weissmann]

a provision that says, oh, don't produce something because it is duplicative or substantially duplicative.

[Guest Commentator / Co-host]

So they're basically just conceding that they didn't produce this.

[Andrew Weissmann]

To me, they're in violation. The government themselves describes the act. They don't in any way say that it doesn't require duplicates to be produced, let alone things that are not duplicates. That's category one that I just thought was like, okay, so you violated that next category.

[Guest Commentator / Co-host]

The court has ordered the department to

[Andrew Weissmann]

initiate review and production of foreign language materials that may be subject to the production under the Epstein Transparency Act.

[Guest Commentator / Co-host]

The government comes back and says, well, we told Congress we weren't going to do it, so we shouldn't have to do it. We told Congress that we're not complying with the act, so that means that's the end of it.

[Mary McCord]

It's not practicable.

[Guest Commentator / Co-host]

That's one where it's hard to see

[Andrew Weissmann]

that the judge isn't going to be like, no, you got to do it. There was no exception for something being in a foreign language.

[Guest Commentator / Co-host]

Like, in this day and age, there's a million ways to translate things. And Mary, you and I know that from even when we were practicing the Pleistocene years at the Department. But now, sorry, maybe I should say that about myself, but, I mean, that's just absurd.

[Andrew Weissmann]

That's also one where they basically just have to fall on their swords.

[Mary McCord]

Part of it is they're treating this all like this was just between the executive branch and Congress. Right. Like we told Congress, Congress didn't do anything. So you can't do anything. Court but it was a statute.

[Guest Commentator / Co-host]

This is the line from the brief that says exactly what you said, Mary. Quote, the court should not supplant Congress's acceptance of this explanation. That is just unbelievable. And then the fifth category is the

[Andrew Weissmann]

court has ordered the department to either publish in the Federal Register the redaction log, which because if they were going to redact something, the department was required to say exactly what it was doing and to publish it.

[Guest Commentator / Co-host]

And ultimately this Is in category 5. The government said the department will submit

[Andrew Weissmann]

the notice of what it did for publication.

[Mary McCord]

There wasn't a deadline for that. So we just didn't do it yet.

[Guest Commentator / Co-host]

Exactly. I mean, they did it because of the lawsuit. This is what Katie can take from

[Andrew Weissmann]

this with the five categories. The fifth category, it is her lawsuit that is going to cause this to have been done. So where we are now is that Judge Sullivan has the government's response. There will be, I think, a short reply from Katie Feng to this and then the judge will make a decision about what to do. He could have the parties in for argument for a hearing, just like the John Benning case.

[Guest Commentator / Co-host]

We will keep our eyes peeled and

[Andrew Weissmann]

ears open for what happens here, but

[Guest Commentator / Co-host]

both of these are super interesting and

[Andrew Weissmann]

notice they both have to do with documents dear to our heart as former prosecutors. Because facts matter.

[Mary McCord]

Absolutely.

[Andrew Weissmann]

So Mary, it's so nice to have you back. Thank you for the conversation. Thanks everyone for listening. Remember, you can subscribe to MSNAP Premium on Apple Podcasts to get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content. Please remember you can now hear our show on YouTube. Head to ms.now.mainjustice to listen this podcast

[Mary McCord]

is produced by Vicki Virgolina, Nicholas Vinuela Yodar is our associate producer and Cassidy Corey is our our intern with production support from Donnie Holloway. The audio engineers for this episode are Bob Mallory and Hazik bin Ahmad Fared. Katie Lau is the senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.

[Guest Commentator / Co-host]

Search for Main Justice Wherever you get

[Andrew Weissmann]

your podcasts and follow the series,

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