← Main Justice
Main Justice
It’s Been a Year...
00:52:33
Trump targets Minnesota. Plus: A federal judge proposes extended protections to noncitizen academics.
Loading summary
Transcript110 lines
- [00:01]
A
Start your day with the MSNow Daily Newsletter. Each morning, read sharp insights from the voices you trust. Catch standout moments from your favorite shows.
- [00:10]
B
The second Trump administration has gone to unprecedented lengths to radically transform America.
- [00:15]
A
Stay up to speed on our latest podcasts and MSNow events and get fresh perspectives from experts shaping the news. It's everything you love about MSNow delivered to your inbox. Sign up at ms.now. foreign hello and welcome back to Main Justice. It is Tuesday morning, January 20th. I am Andrew Weissman and I'm here with my wonderful co host who I could not do this without. Welcome, Mary McCord.
- [00:47]
B
Good morning. And as you said, January 20th, I think when we both got up this morning, we were like, it's been a year, a year of this administration and I guess a year since we changed the name of the podcast from Prosecuting Donald Trump to Main justice and have really tracked quite a year. Think about this, January 20th at noon. Of course, Donald Trump became the president. And the rest of the day we watched executive order after executive order after executive order get signed by him, including an effort to rewrite the 14th Amendment.
- [01:20]
A
Birthright Citizenship clause, freeing hundreds and hundreds.
- [01:25]
B
Of people, nearly 1600.
- [01:27]
A
Yes, exactly. Including multitudes who participated in violent crime against law enforcement, Capitol police. And it seems like it's only been four years, not one year.
- [01:41]
B
That's right.
- [01:43]
A
And you know, I think the reason that listeners to this may be hearing in our voices just not fatalism, but a sense of depression and unreality is where we are in the last week and the number of weeks where you thought it could not get worse. I'm just going to give you one example because, Barry, you know, I like talking about America on the international stage. Just today we're hearing that a French judge who was overseeing the case of Le Pen, who is a far right person who had run for president in France and she had to trial on criminal matters and was convicted under the law in France, she was barred from running for a certain number of years. Well, it turns out that this French judge reported that members of the Trump administration came to essentially try and strong arm her to sort of throw the trial. I'm paraphrasing her words. And she's a very respected, somber judge. We've seen Donald Trump Institute tariffs targeted at the main judge in Brazil who oversaw the trial of the Bolsonaro, who also lied about the election there and was convicted of engaging in an insurrection there. And Donald Trump tried to intercede there to say this is really unjust and unfair, this idea of undermining of the rule of law internationally and particularly focused on political corruption. It's so transparent, and it so ties into what we were just talking about, the domestic undermining of the rule of law. And I just want to make sure people understand how much it's happening on an international stage, and it doesn't escape our friends, our allies abroad, our enemies abroad.
- [03:40]
B
And, of course, people are probably also tracking. I mean, I'm so glad you highlighted that example of the French judge and this effort to really undermine rule of law in other countries. But I'm sure most of our listeners are also tracking what's been happening with respect to President Trump's aggression toward Greenland in the past week. And it really takes me back to a year ago, because it was pretty darn quick after inauguration that he started talking about both Canada and Greenland, that all kind of subsided for a while. And obviously now with respect to Greenland, it is back in full force. Just an incredible number of exchanges between Trump and others in the European Union and in NATO over the weekend, including a message sent through diplomatic channels to Norway tying his aggression toward Greenland to not getting the Nobel Peace Prize. So all of these undermine sort of international law and international world order. As we know, and we've discussed. Right. With NATO, an aggression against one member is an aggression against all. And this has been an alliance we've had.
- [04:41]
A
Yeah, that's the whole theory of it.
- [04:42]
B
Exactly.
- [04:43]
A
It's all for one and one for all. I mean, that whole idea Post World War II of the NATO alliance is to make the world safer.
- [04:50]
B
That's right.
- [04:51]
A
This is what I don't get, and I mean this in all seriousness, under the president's theory with respect to Greenland, where he says, well, we need it for our security, it would be good for us to have it. What's the limiting principle on that? I mean, I'm sure you can come up with arguments why it would be nice to have Canada and why isn't that exactly what Napoleon did? Napoleon was like, you know what? Spain would be good for us. They have lots of treasure and loot. And you know who else did that? I mean, I always hate making this analogy, but that is Hitler not focusing on what he did in killing people, but in terms of land aggression. And that is what Putin is doing in Ukraine. This is might makes right. It is eliminating the idea of world peace and world order. I just don't see the limiting principle. How are you for democracy when your view is we just get to take that it beggars the mind that we are having this discussion, it really does.
- [05:52]
B
And you said what's the limiting principle? I think Trump answered that recently when he said his own morality is the limiting principle. But that's not exactly how.
- [06:01]
A
God help us.
- [06:02]
B
That's right. We could obviously go on and on on this. And one of the things we didn't even mention was the threats of tariffs against all of the European and NATO countries if they don't support him in Greenland. And I am actually hoping today, Andrew, there are going to be opinions released by the Supreme Court. I am hoping they release the tariff opinion.
- [06:22]
A
And I know we're busy multitasking to see what happens.
- [06:26]
B
I am hoping they tell Donald Trump that he cannot misuse emergency authorities that way because it's not clear what he would base Greenland tariffs on other than the same theory as the emergency authority tariffs. I'm not sure what it would be. And so time, it's time Supreme Court to act and to try to constrain this. Speaking of things that.
- [06:46]
A
Speaking of things. Yes. So that does put us in time in perspective in terms of it's been a year, but there's a lot going on. So, Mary, what is on our dance card? And by the way, I'm sure our producer is sitting there going, are you going to get to the show or not?
- [07:02]
B
I mean, this is important though, because we have to reflect on where we've been and where we are and where we are headed and what we're going to talk about today. Most of today is something else that started on January 20, 2025, which was a thousand ways of implementing a mass deportation plan. And we have returned to this topic time after time after time. The attempt to remove Venezuelans in the middle of the night under the auspices of the Alien Enemies Act. These mass surges of ICE and CBP into American cities, primarily democratic run cities, just targeting people, including U.S. citizens and lawful residents just because of the color of their skin or the accents they may have. That has been followed by efforts to federalize and deploy the National Guard and now threats of invoking the Insurrection act in Minnesota. So we will start in Minnesota. We will talk about the things that are going on there. We will continue on also this topic to revisit a decision that was made after a trial in September with a judge finding that there was really a conspiracy within the government to deprive students of their visas based on First Amendment protected activity. And we will also talk a little bit about, you know, something pretty extraordinary that happened last week, which was a search of a reporter's home, supposedly not with the reporter being the target, someone else being the target, but nevertheless a search executed with her work and personal computers and cell phones taken, even though it seems that no other lesser measures had been tried. And you and I both know the policies in the department and we can talk about those.
- [08:43]
A
Yeah, I think that. That actually. I know. Deep breath, deep breath. Should we turn to Minnesota?
- [08:49]
B
Yes.
- [08:49]
A
Because there's so much going on there. And once again, what has been found to be outrageous governmental conduct has been met with judicial review and pushback and calling it out for what it is. I mean, it is, again, an example of the district courts are really standing up and responding to lawsuits that are brought by organizations like yours, Mary, that present evidence and legal theories that have proved to be meritorious. So here there was a challenge by people based on the first and the Fourth Amendment. And so who was suing and what was the gist, or as we say in the law, what was the gravamen of what they were contending?
- [09:42]
B
Yeah, these are people who were either detained by ice, which is really like arrested. They weren't just briefly detained and released, but actually detained for a long enough time that that would constitute an arrest. People who were sprayed with pepper spray, people who were stopped for simply driving their cars, following ICE cars, driving their cars within traffic limits just to see where ICE is going, a lot of things that are just unconstitutional that ICE has been engaging in in order to intimidate and threaten those who are protesting its activities in Minnesota. And so we have some pretty extraordinary examples in this case brought by a number of those protesters who suffered this, including some physical injury, too, the way that they were forcibly slammed to the ground, heads put in, you know, snow and ice for 30 minutes or more, all because they're just trying to document with their cell phones and their cameras what's happening, exercise First Amendment speech and what these arrests ICE has tried to say. Well, we had a reasonable belief that we could arrest based on potential violations of a criminal statute that applies to forcibly obstructing or impeding or resisting a federal officer doing its job. And this judge in Minnesota issued a preliminary injunction just last week saying that ICE has engaged in First Amendment ret. Retaliation and Fourth Amendment violations. First, the judge made a point that I think is so important for listeners, and I think we've said it before because it's something I've told people for years and years. It is protected by the First Amendment to observe and record a public official doing their job in public. There's been a number of instances where law Enforcement officers at the state, local level, at the federal level have tried to do things like take people's cameras, take people's cell phones, tell them that they can't record people, cannot forcibly impede law enforcement, but they absolutely 100% have a right to record a public official doing their job in public. That is what could be more core. And the judge makes that point. The judge finds that the protesters are likely to succeed on their First Amendment retaliation claim for the two people who were unlawfully arrested in apparent retaliation for their protest activity, the one who was peppered, sprayed, and also finds that following ICE at a safe distance, right, obeying traffic laws is not reasonable articulable suspicion for a Terry stop. And people will remember Terry stops, you know, that brief detention when there's reasonable articulable suspicion, that person has committed a crime, but it's not a crime. So what the judge was saying, just following ICE without breaking laws while you're following ICE is not a violation of criminal law. So there was no reasonable articulable suspicion for those stops.
- [12:39]
A
And she points out that the obstruction statute that ICE was relying on to say that there was reasonable suspicion of that crime requires the use of force.
- [12:49]
B
That's right.
- [12:50]
A
And so when you're not committing any other crime, you're not committing a traffic violation, you're respectfully following, you're protesting from a safe distance, you're not pushing, you're not using force and you're not breaking some traffic violation if you're just engaged in First Amendment activity. That is both protected activity, but it's also not anything that can be the basis to say you're entitled to be arrested. Whether it's a full blown arrest or just even stopped by the police, you can't do it. One quick note here is she is deciding this, as we have talked about a lot, the preliminary injunction phase. And she does note that there is contrary evidence that the defense put in. She doesn't credit it because she says, I have firsthand sworn testimony like these are under oath statements from the plaintiffs, who are also what's called percipient witnesses. They're not relying on hearsay. They're saying things like, that happened to me, I was there. And they're saying it under oath. And she's saying it may be after a full blown hearing, the state can prove its allegations. But what they have presented to me is hearsay. It's somebody relying on something that somebody else claims to have seen.
- [14:09]
B
At best, I believe it's like the regional ICE director right who basically took information that he was provided by ICE agents on the ground and he filed declarations. But she's saying, I can't credit this declaration based on something you didn't see yourself against these others, nor was it under oath.
- [14:26]
A
Yes. And so she's saying if I have to weigh the two, it's going to be lopsided. And she says, I'm not saying at the end of the day, if there's a hearing they're going to lose. Essentially, I'm keeping an open mind, but I have to decide based on the record that you have created and you have not put this in play sufficiently given what the plaintiffs have established here. Because just again, to be fair to the other side, they say with respect to at least one of the plaintiffs, that she actually was violating, really violating the law that she had pushed or shoved one of the ICE agents. She was told to not cross a perimeter and then she did and pushed. But the judge here does not credit that. So maybe later. But the record here, the judge says this is the First Amendment violation. You can see where we're going on the Fourth Amendment, my favorite amendment. You know, I teach the Fourth Amendment and that is there's also no basis to have pulled these people over, whether it's for the so called Terry stop or for a full blown arrest. And she says I don't even have to get into whether the ICE could act under the traffic laws, whether they could enforce it. She just didn't have to reach, which he called that thorny issue. She said, there's just no crime here. There's no factual predication of any violation to establish stopping and or arresting somebody. So again, just to be clear, Mary, can I just say, in my day I would be curled up in a fetal position if I were the lawyer representing like a whole group of agents and this was the result. I mean, one, I'd be talking to them ad nauseam about needing to reform their policies and like how to make sure this doesn't happen again because you're here to do justice. And actually good supervisors at that agency would be doing the same thing.
- [16:17]
B
So that is a great transition to the lawyers because how has main justice responded to all of this? Well, first of all, the very same person who filed this declaration in this civil case brought by the protesters is apparently also a pastor or a minister at a church in Minnesota. Protesters showed up at that church over the weekend. And now the Department of Justice has said they're launching an investigation into those protesters based on that protest at his church. Remember, this is the same Department of Justice that said, we are not going to investigate whether the ICE agent who shot Renee Goode violated her civil rights. We're not going to do that investigation, even though it is completely, completely the standard practice in any one of these types of federal law enforcement shootings in situation like this. For the Department of Justice Civil Rights Division to launch an investigation that resulted in something we talked about last week, which was at least six high level Civil Rights Division attorneys quitting. Now, some, I think, had been planning early retirement, but they nevertheless quit. Then on top of that, the Department of Justice said, we are going to launch investigations into Renee Goode's widow, Rebecca Goode, as well as other protesters.
- [17:34]
A
And Renee Goode.
- [17:35]
B
And Renee Goode herself. Right.
- [17:37]
A
And to the deceased victim, criticizing them as this.
- [17:40]
B
Criticizing is way too soft a word. Accusing them of being domestic terrorists and they're launching an investigation into them that prompted at least six Assistant U.S. attorneys in the Minnesota U.S. attorney's office to quit, including the person who had been in charge of the fraud investigation in Minnesota that has been the basis for so many attacks on Governor Walz and others within Minnesota and the Somali community, which has resulted in a lot of intimidation and threats and violence directed toward.
- [18:12]
A
The Somali community, which the Trump administration has been highly touting. And that person has resigned. Let me just read two things that this judge said, and she's quoting at times from the 8th Circuit that fit exactly with what you had said, Marian, fits into why you're seeing that reaction. One of the things that she quotes the 8th Circuit, that's the Court of Appeals above her, the acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy. And then she holds this. Footnote 24. The court holds that peacefully and safely following immigration officers performing their duties in public without more does not provide a lawful basis for an investigative traffic stop under the Fourth Amendment, meaning you cannot stop people just because they are lawfully following you, which appears to be, you know, a habit of what ICE is doing. And actually, the judge points that out that this is ongoing. The reason she issues an injunction is because she says this is not something that just happened in the past, that we don't have to worry is going to continue. It is ongoing. And in fact, Secretary Noem's response to this, which is, we're appealing it and we're going to do whatever we're going to do, and this doesn't change Anything is exhibit A actually at this point, exhibit zzz. Right to the fact that they're just going to do whatever they're going to do regardless of what the judge said. Yeah.
- [19:46]
B
And you know, you mentioned earlier and this is all, you know, I got off on how the Department of Justice is responding with these other types of, I can only say retaliatory and vindictive investigations. And we haven't even gotten to the big one, which we'll get to after the break. But this through line of this activity and the things that ICE is stopping people and detaining people for all does come back and circle back to the shooting of Renee Goode because there is a question too, at the heartland here and it's the question this judge did not reach. She said she did not have to reach whether or ICE has any authority to engage in any type of traffic stop. And there's still a lot of questions about whether those ICE agents really could legitimately approach Renee Goode's car, try to yank open her door, et cetera, when she may have. Very well, I'm almost certain she was violating a traffic law by parking her SUV sideways on the road.
- [20:36]
A
Guess what? That's not a death penalty offense.
- [20:39]
B
Yes. And it's also not something that would be within ISIS purview to enforce. Now, again, we're back to their argument about this being obstruction, but that's got to be forcible. And the force that I saw was not forced by Renee Goode.
- [20:52]
A
I totally agree. So you gave us a cliffhanger. Shall we take a break and come back and then talk about the elephant in the room of the latest retaliatory step of the Trump administration. But let me just assure people that we do have matched with the outrage. There is some more good news that we do have, like judges again, really pushing back at what's going on. So let's take a break and come back and talk about that.
- [21:19]
B
Sounds good. The US Military deployed on the streets.
- [21:31]
A
Of America, whole communities targeted for removal.
- [21:34]
B
And when accountability finally came knocking, the burn order to cover it all up.
- [21:39]
A
Rachel Maddow, Pursuit Burn Order all episodes available now. Okay, Mary, we're back. What what is the thing that we haven't talked about that we have now heard? It's sort of hold on. If you're sitting down and you know about James Comey and you know about Letitia James and you know about Jerome Powell and you know about them saying they should open an investigation into Adam Schiff. But wait, there's more.
- [22:08]
B
There is more. And you also left out at least Senator Slotkin and all of the senators who put out a, you know, video that just said, reminded military officers that they don't have to obey unlawful orders. Them, too, under criminal investigation. But as icing on the cake, because I guess anything that makes this president, this Department of Justice mad, becomes a criminal investigation. It appears that both the governor of Minnesota, Tim Walls, as well as the mayor of Minneapol, Jacob Frey, are both under criminal investigation based on reporting from Friday of them receiving subpoenas. Now, remember, this is on Friday when we have had protests against ICE activity for the last. Well, since mid December, we have had the shooting and killing of Renee Good that has sparked more protest activity, largely peaceful. And to the extent that there have been protesters engaging in acts of violence, I know that state and local law enforcement has made arrests and they have initiated prosecutions when there is violence. But the police have responded appropriately to try to protect people's First Amendment rights while also protecting public safety. And in the face of this, we had the announcements from the DHS that they're sending, I think 2,000 more and I think already have ICE agents into Minneapolis and St. Paul, I should say, both as part of this surge, Metro.
- [23:31]
A
Surge, and there's more. And in that context, the president and the vice president and the Secretary of DHS announced that there'd be no investigation of the agent who did the shooting because he was fine, everything he did was fine without any investigation. But there would be an open investigations.
- [23:52]
B
Into others, including the governor and the mayor.
- [23:56]
A
For what? For criminal disagreement.
- [23:58]
B
Based on what we know, that does seem like what it's for. And it's unclear. We haven't had anyone point to any criminal statute. There's speculation that it might be an investigation into a crime called conspiracy to impede or injure an officer. This is when two or more people conspire to prevent by force, intimidation or threat any person who is a federal officer from discharging their duties.
- [24:24]
A
Can I just say, if you want to open an investigation into threats, not with force, but threats against people doing their duty, I can come up with a long list. But it's coming from Washington. The whole idea of this. Just to be clear, nothing is going to come of a criminal investigation of Jerome Powell. Nothing is going to come with. Let's just say there's no evidence that is in any way pointing to anything coming from an investigation of the governor or the mayor. But it still has a chilling effect. Of course it does. It is a win win from a sort of Authoritarian point of view. And the idea is to have them back off. It's a brushback pitch, but you're doing it in the context of the First.
- [25:10]
B
Amendment and leaders in the state and in the city telling people to engage in peaceful demonstration, but be peaceful, calling out that ICE is trying to escalate and that people should not sort of take that bait. I mean, these are the statements that we're talking about here, but this is an administration that can't ever see anything that way. And I think in many ways, this, you know, announcement or confirmation of a criminal investigation goes hand in glove with the President's threats to invoke the Insurrection Act. Right. He has already tried and now failed, at least in the Supreme Court, to use a different federal statute to federalize and deploy National Guards in cities where ICE has had its surges and where people have protested.
- [25:56]
A
Right.
- [25:56]
B
That's la, that's Portland, that's Chicago. Supreme Court recently ruled that that statute requires that you have to use the regular forces, meaning the regular military have to be unable to enforce federal law before you could use the National Guard. So a lot of us did talk about, we talked about on this podcast. Does that mean next time he will try the Insurrection Act? Because the Insurrection act is a known exception to the Posse Comitatus act, the statute that. That says that United States military and federalized National Guard may not engage in domestic law enforcement unless there is an explicit constitutional or statutory exception. Insurrection act is recognized as an exception, but it is rarely used, has not been used since the riots after Rodney King was so badly beaten and officers responsible for that beating were acquitted, and is only been used in 30 times in history. And our entire history of its use are limited to situations where most of the situations we'd had a number of people killed, we'd had state and local law enforcement clearly unable to handle situations or worse. In places like Little Rock, Arkansas, during the civil rights movement, we had the state and local forces refusing to comply with Supreme Court orders of desegregation.
- [27:13]
A
And not for nothing, this is all happening in blue states. It's just impossible to view this as anything other than political, because it's not like, if you're just looking at the number of undocumented, they are not all in blue states. And the numbers I was reading, it's like Texas would be like, if not one, it would be way, way up on the list. But there's a variety of reasons, starting with a capital P, why that is not happening there. And so you're seeing it in Chicago in la, in Portland and, you know, down in Minneapolis, I'd like to, Mary, just tie it back into what we were talking about at the very outset because we related this to a year ago, on January 20th. Well, on January 6th of this year, the White House issued sort of their defense of what happened on January 6th. And they said, oh, the president only wanted there to be peaceful protests. Well, of course, there's a ton of evidence that that's not true and that when it got violent, if he really only wanted peaceful protests, why in God's greenhouse didn't do anything about it? And why did he liberate all these people after being rightfully convicted? Leave that all aside. But if he's now saying, let's take him at his word, oh, it's okay to have peaceful protests, and that's all I wanted. Well, what. It's not okay to have peaceful protests when it's about your policies, when it's about an innocent woman being shot to death in her car and you won't even do what is routine, even when you are confident that it's going to be a good shot like that the agent was justified. There's an investigation and there's an examination and you welcome it. And you know who welcomes it. The agent wants to get cleared also and wants an impartial view so that it's clear. But the agency wants to know, is there something that should have been done differently because. Because they need to make sure it doesn't happen again.
- [29:11]
B
And do we need to change our training? Right. Do we need to change our guidelines?
- [29:14]
A
This is basically just sending a message of like, we'll shoot whoever the hell we want to. And you know what? You want it there to be an investigation. You complain there'll be an investigation of you.
- [29:26]
B
Yeah. And also, Andrew, to situate us again, going back to the start of this episode in the international order, at the same time as these crackdowns on protesters in Minneapolis, we had the present supporting protesters in Iran against Iran's policies and even suggesting he might use military force to protect those protesters. Now, to be fair, many hundreds, maybe even thousands of protesters have been killed in Iran. It's unclear because it's hard to get accurate information out of Iran. So we're not talking about the same scale.
- [29:59]
A
It's apples and oranges.
- [30:01]
B
Yes, but just in terms of support to protest versus calling protesters domestic terrorists, because that is what has been coming from high level administration officials when they are talking about the protesters in Minneapolis.
- [30:15]
A
So, Mary, should we take a turn now to Judge Young in Massachusetts, because he is presiding over a case where there is a challenge to the way the administration is targeting professors who are graduate students.
- [30:34]
B
A lot of them were graduate students.
- [30:35]
A
Yes, yep. And who are not American citizens, but.
- [30:40]
B
Here lawfully on student visas, just to be clear.
- [30:42]
A
Yep, absolutely. So he previously said the First Amendment applies to everyone here and so these people are protected by the First Amendment. And he hasn't issued his written decision yet on this latest piece.
- [30:59]
B
Can I go back just a little bit to make sure everyone's tracking?
- [31:01]
A
Yeah, let's get back to what he previously said. I think we did discuss it, but it was a long time ago.
- [31:07]
B
We did, because this was all about the revocation of these student visas based on First Amendment protected activity by these graduate students and others that was generally related to the Palestinian and Israeli conflict. And these were students who were advocating in support of the Palestinian cause and they had their visas taken away. And many. We talked about Rameza Ozturk, we talked about Mahmoud Khalil and several others who were then detained. Some of them moved from place to place and spent quite a bit of time in detention until in various ways they got some relief in habeas. And we need to come back to that because there's been an important third circuit decision that affects Mr. Khalil that just came out last Friday. But what Judge Young was handling was a lawsuit that was saying that this is First Amendment retaliation, this scheme of the government, the Secretary of State Marco Rubio, to revoke these student visas in the name of national interest, that this was in violation of First Amendment rights. And he had. Judge Young, a Reagan appointee, had a trial. He issued a lengthy 160 page opinion which we did discuss probably in September, because this came out in September. His conclusion though was, and I'm just going to read it, having carefully considered the entirety of the record, which included, you know, a trial where he took testimony, this court finds by clear and convincing evidence that the Secretary of Homeland Security, Kristi Noem, and the Secretary of State, Marco Rubio, together with the subordinate officials and agents of each of them deliberately and with purposeful forethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non citizen plaintiff members of the plaintiff associations, because the American Association, I think, of university professors and others had brought this case. So then what was left, and that's where we're at now, to tee it right up is. And he said what remains after issuing this opinion is to consider what, if anything may be done to remedy these constitutional violations. And he made clear at the time he understands he can't muzzle the administration from saying things that would be a prior restraint. But there are things that he thinks he can do to remedy these constitutional violations. So the hearing last week was to hear from the parties on what remedy there is and what did the government come in and say.
- [33:29]
A
So one of the things that the government said, just to start at the sort of broadest brush, is they said about the judge who I believe, Mary, you said was appointed by Ronald Reagan, that far left wing radical. And so with respect to this Reagan appointee, the administration said, I'm quoting, it's bizarre that this judge is broadcasting his intent to engage in left wing activism. Left wing activism, not usually what I think of when I think of Ronald Reagan. Although, you know, maybe we've gone so far to the right that now he's to the left. So that seems to be the favorite sort of smear du jour when it's Judge Henderson who is a Trump appointee, that's another left wing radical. When is a 4th Circuit judge who is a conservative leading light, that's another rogue judge. You know, it's basically if you rule against them, you're as you said earlier, it's sort of domestic terrorists.
- [34:36]
B
They also said there's no remedy, right?
- [34:39]
A
Well, they basically said there's no remedy because guess what their view is courts have no power and you have to do what we say and this can't be heard. We have exclusive and preclusive power here. You know, Secretary of State can make these determinations. And to me, this is as a judge said Judge Breyer, it's no checks. It's not checks and balances. It's no checks, no balances that is going on here now. The parties just, you know, are today and tomorrow submitting briefs and papers on what they think this precise remedy should be. And so the judge has said he is then going to consider that today and tomorrow when he gets those papers. And I think he promised to have a decision later this week, this week on the remedy. So he's going to turn that around very quickly. So we will report back on exactly what he does here. And based on his findings, for sure the government will appeal this.
- [35:39]
B
Yes. Well, depending on his remedy. And to the point of, you know, you indicated the government's overall argument that this is something this court shouldn't have ever been looking at to begin with. They're also very specifically arguing, at least based on the reporting. We don't have a transcript based on reporting by journalists who were in the courtroom and put things in quotes. So presumably they wrote them down. Specifically, the DOJ attorney argued to Judge Young last week that all issues related to the initiation of removal proceedings must be channeled into immigration court. In other words, yeah, you found these First Amendment violations, but you can't do anything about it, your honor, because there isn't any remedy that the court can offer. And according to the reporting by Politico, an astonished Judge Young replied, you're telling me there is no remedy. And the DOJ attorney said that's what the statutes require. So I think that's what they'll be saying. And they will also point to the Third Circuit decision that came out, I believe on Friday in Mahmoud Khalil's habeas case. That's a case where a judge had found that he was entitled to being released. He was detained pending this removal when.
- [36:41]
A
And Mary, just tell us who Mr. Khalil is because people may have forgotten. It was quite a big deal when it first happened. But with so much going on, I can understand why people aren't going to remember his name.
- [36:52]
B
A student and activist at Columbia University in New York City and remember when there was so much activity around this. He was one of the first people who was detained and for whom Marco Rubio tested out this new theory of I can just revoke student visas based on my own determination that their presence here is not in the national interest. And he was moved many, many different places to try to defeat any jurisdiction.
- [37:17]
A
Just like Ms. Oosturk.
- [37:19]
B
That's right.
- [37:19]
A
We covered that in detail, deservedly. But the same thing happened to Mr. Khalil. He went from New York to New Jersey to Louisiana. On that part. The Third Circuit affirmed the district court that you can't just sort of keep on moving someone in the middle of the night like a three card monty game and then say you didn't guess right as to under which kind of top the bean is. They're like, you know what, there's jurisdiction here. There's this sort of habeas jurisdiction to hear the case. There is the naming of the right person to sue was correct. And then you're scurrying. The person off to Louisiana doesn't divest the court. The Second Circuit had said exactly the same thing in the USTUR case. But there's a big but.
- [38:04]
B
Yeah, I mean that's the good part. But what comes after the but is pretty significant. What the court said is consistent in many ways with what the government was representing, which is that when it comes to actually providing relief to Mr. Khalil by this federal district court, Congress has spoken through its statutes that channel this is like the legal term that channel challenges to your removal into immigration court. And so long as you could raise your issues, your legal issues, including constitutional issues, including First Amendment retaliation, they're saying, so long as you can raise those on appeal from the immigration court's decisions, then the federal district court does not have the jurisdiction to actually rule on those issues. You, Mr. Khalil, have got to go back, you've got to fight this in immigration court. If you lose there, you can take an appeal. And one of the things significant about this, people might say, well, okay, so long as he gets a chance to get these issues aired, why isn't that so bad? Well, how about because he's suffering injury in the meantime? Remember, he was in detention for a prolonged period of time, and he was released on habeas by this district court, if I recall correctly. And so essentially what the court is saying is, you don't get a remedy for the harm you are experiencing while your proceedings are in immigration court, even if you are detained, even if your argument is that you're unconstitutionally detained. You've just got to ride out that process.
- [39:31]
A
And so the other piece is, there is a huge difference between the immigration process, which is really is kind of housed within the department. I mean, in other words, it's part of the government.
- [39:43]
B
They're not a separate branch.
- [39:45]
A
I know people are thinking, oh, well, it's the immigration court. No, no, no, no, no. There's court review at the end of the process. But immigration, quote, court is part of the executive branch.
- [39:58]
B
That's right.
- [39:59]
A
Remember, three branches of government. It is not part of the judicial branch. So it's really kind of a misnomer to call it immigration court. I mean, if we said, don't worry, you have an opportunity to go in front of an immigration prosecutor and they can decide. Now, again, that's a little bit of hyperbole, because I am really not trying to say immigration judges are acting as prosecutors, but it doesn't have all of that independence that comes with being in a separate branch of government where you have lifetime tenure and all of those bells and whistles. So this may seem like a procedural issue, but it actually has huge ramifications. It may not be wrong either. I mean, this is the kind of issue that will eventually, if it's not, this case will bubble up to the Supreme Court to decide exactly where these things need to be decided. And there's no question in the main the statute's clear. But the real issue is whether there are exceptions in areas where you're entitled to some other relief depending on the kind of claim claim that you're bringing, which is exactly what Mr. Khalil was arguing. He wasn't saying that everyone all the time, no matter what the claim is, gets to go into district court. But he was saying here, given the nature of my claim and the nature of the harms that I'm alleging, I am entitled to it. And obviously the district judge, widely respected Judge farbiars, agreed with Mr. Khalil on this issue. And then the other thing just to Note is the 3rd Circuit decision did have a dissent on this issue. So it was two to one important point. And so we'll keep an eye on this. What happens next, Mary, should we take a break and come back and talk about something kind of near and dear to our heart, which is the responsibilities of the Department of Justice when you're dealing with journalists?
- [41:47]
B
Yes, let's do it.
- [41:58]
A
Start your day with the MSNow Daily newsletter, sharp insights from voices you trust, standout moments from your favorite shows, and fresh perspectives from experts shaping the news. Sign up @MS. Now, Mary, there was reporting in the Washington Post in the then elsewhere, and some of it direct from the Washington Post reporter herself. What is it that we have learned that the Department of Justice did with respect to the reporter?
- [42:32]
B
Well, they executed a search of her home, I believe like 6am in the morning last Wednesday. FBI showed up with a search warrant. So that means a judge had signed this warrant based on probable cause that evidence of a crime would be found in her home home on her electronic devices. They seized at least her work and home computers and cell phones. I'm not sure if they seized other things. I don't know if they seized documents, but certainly all of her electronic devices, including her personal electronic devices. She was told she is not a subject of this search warrant. In other words, she's not the target. They're not accusing her of committing a crime. But the search was to look for evidence ostensibly of the potential leaking or mishandling of classified information by someone else, someone else who actually already has been charged and arrested with taking classified information that he had access to because of his job and the top secret clearances that he has as part of a government contractor. You know this is not the first time, right? Some pretty famous people who have leaked significant information, Edward Snowden being high among them, were contractors with the government. But sometimes as a contractor, you still get these high level security clearances because you've got to do the work that you're contracted to do. He has already been charged with taking that information that he's not allowed to take from its, you know, secured place and having it in his home and I think in a lunchbox and other things. I read the charging document. He is not charged with actually giving it away, publishing it, making it public, distributing it, anything like that, that there's.
- [44:13]
A
No link between what he is charged with and that he at any moment gave it to this reporter or frankly to any reporter. And so it may be that the government eventually has that proof. And it may be also that the government has proof that other people leaked information they should not have classified information to a reporter. Just to be clear. Yes, Mary and I were in the national security world leaking classified information to somebody who is, whether it's a reporter or not. Let's just focus on the leaker. Yes, the leaker. That is the kind of thing that you're prosecuted for. You remember when we were talking about the Donald Trump allegations in Mar a Lago, like we talked about how all sorts of people are charged with that and should be charged with it and how important it is. So in discussing this, no one's defending, obviously the person who's been charged has all of the due process and its allegations and, and all of that.
- [45:08]
B
It's true.
- [45:08]
A
But there's nothing about that that on face seems improper. It also is not improper to go to a judge and get a search warrant and have that based on probable cause. And we're not also discussing this because we're assuming all of that.
- [45:23]
B
Yes.
- [45:24]
A
Maybe later it'll be shown to not be true. But right now there's no reason to think that there wasn't proper probable cause there. That, for instance, let's say they had good reason to think, and obviously a judge thought they did, that, that somebody in the department and some government official or contractor leaked information to this reporter and they had reason to think this reporter kept it and kept it on her laptop or other electronics. Let's just take that as a given.
- [45:49]
B
And actually, I think there's been some reporting that administration officials, unnamed, suggested at that at the time that they arrested the contractor for the mishandling of classified information. He was texting this reporter. That is what I have read. I don't know, because neither of us have seen the affidavit in support of the search warrant. But if that was the case, that probably would be part of that support, like you said.
- [46:12]
A
Just to be clear, people might be saying, so what's your beef? What are you complaining about? They went to a court, there's probable cause, et cetera, what the issue is. And this became a big issue during the Obama administration. It was even tightened up even more under Merrick Garland when he was the AG under President Biden. How you're supposed to deal with journalists and getting information from journalists, whether it's by subpoena, whether it's by search warrant, and all sorts of strictures were put in place. And at times, I have to tell you, when I was in the government and we were doing leak investigations, they were a hassle because you had to jump through a lot of hoops before you could get to certain tools that you could use. But the reason for those hoops was as follows. So, first of all, let's say that the administration just grabbed all of her electronics. Well, they're going to get a lot more than necessarily what is targeted to what they care about. In other words, they could find out all sorts of people who are giving her information, some of which is not criminal at all. And it's just information she has.
- [47:24]
B
Let's pause there for one second, because I think it's important, if people have not been tracking the story, to know who this reporter is. This is a reporter whose job this past year has been to report on what is happening to sort of the mass firings of federal workers, the dismantling of government agencies. This is a reporter who has said to federal employees and others with knowledge, come talk to me, because these. These agencies have been decimated, and she's been reporting on that. So when you say the government's going. And a whole lot of that, because I've read what she's written, it doesn't have anything to do with classified information.
- [47:58]
A
Exactly.
- [47:59]
B
So what are the government going to get, though, when it gets all of her electronic devices? They're going to get the names of all and the contact information of all of these people who have provided her information. And that worries me significantly.
- [48:14]
A
Yeah. And so the rules that have been put in place by Eric Holder and then even stronger ones by Merrick Garland said, before you get stuff from a journalist, we want to see that you tried all sorts of other avenues precisely so that you don't infringe on core and valid and lawful journalistic activity and.
- [48:35]
B
First Amendment protected activity.
- [48:37]
A
Exactly. And so they want to see that you've tried other things first. And then even when it's authorized within the Department of Justice to do this. It has to be at a very high level. Can't be just low level people. They want to see that there are adults in the room. Good luck. Now that's my snarky comment. And it's so hard not to be these days. It's like really hard resisting that because of what's going on. But in any event, it has to be at a very senior level. But, but then also to deal with this over collection problem, there'll be a taint team. There'll be a group of people who will go in and sift out and only look for the thing that is needed and only give that to the prosecution team and then get rid of either return or destroy the other material. Now there's all sorts of belts and suspenders put on this so that you are not infringing on core First Amendment activities.
- [49:37]
B
That's right.
- [49:38]
A
This topic gets even more complex than that. But that's why when we see this, it sets off lots and lots of alarms. Even when there can be a core that you think, okay, well this could be evidence of criminality. What we have dealt with in our careers is that may be true, but there's lots of process and reason to handle it in certain ways, to respect other rights. In other words, a criminal case is not the end all and be all for allowing you to do everything and anything when there are other downsides. And so this is very much a continuing saga. But to Mary's point, we may never know the full effect and chilling effect of all of this. Because certainly right now, if you're were in the government and you were planning on having a conversation, a lawful conversation, you've got to be thinking twice.
- [50:34]
B
Yes, you are definitely going to think twice, not only with this reporter but with others. And you have to think that's part of the reason for such a heavy handed response. You know, they could have started by talking to the reporter about, we think you might have gotten some classified information. You might not even know it's classified. Right. There's so many things and will you turn it over?
- [50:52]
A
And the reporter has said that never happened. In other words, words, the things that were normal and that frankly are part of the current system. But it's really unclear. It seems the reporting is that Pam Bondi's Department of Justice is not even living by Pam Bondi's own regulations. Yeah, because the reporter wasn't asked sort of voluntarily. There wasn't a subpoena even, which wouldn't be voluntary given they just jumped right to a search warrant. And just to be clear for people thinking, well, Mar A Lago, Mar a Lago, they asked politely. They did it by subpoena. Only after time again and not being turned over did they have to resort to a search warrant.
- [51:31]
B
And Mar A Lago wasn't about a journalist either, just to be fair, was about the person alleged to actually have the classified, who did in fact have the classified and was not authorized to.
- [51:40]
A
Yes. So it's not even apples and oranges. It's apples in a giraffe. Right. Okay. So Mary, we are going to actually be back later this week. Mary and I will be back briefly, briefly to present Jack Smith's testimony, which is scheduled to be this Thursday. So he's testifying now before the House Judiciary Committee in live testimony. Ms. NOW is doing a lot of coverage on that and so you'll hear lots of things in the news on it, but you'll also be able to hear it from us.
- [52:18]
B
We'll provide sort of our reactions, top line points after we've gotten a chance to listen to and digest what Jack Smith said.
- [52:27]
A
So with that, Mary, I look forward to later this week. And thanks everybody. And thank you, Mary. Thanks everyone for listening. Remember, you can subscribe to MSNow Premium on Apple Podcasts. You can get this show and other Ms. NOW originals ad free and you'll also get subscriber only bonus content. And if you sign up before the end of this month so quickly, you'll get three months free.
- [52:55]
B
That's a great deal. This podcast is produced by Vicki Virgolina. Our associate producers are Iggy Manda and Rana Shabazzi. Colette Holcomb is our intern. Greg Devins II and Hazik bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [53:17]
A
Search for Remain justice wherever you get your podcasts and follow the series.
- [53:33]
B
Home to the Rachel Maddow Show, Morning Joe, the Briefing with Jen Psaki, and more Voices you know and trust. Ms. NOW is your source for news, opinion and the world. Our name is new, but you'll find the same commitment to justice, progress and the truth that you've relied on for decades. We'll continue to cover the day's news, ask the tough questions and explain how it impacts you. Ms. Now. Same mission, new name. Learn more at Ms. Now.