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Main Justice
It’s Five O'Clock Somewhere
00:54:33
AG Bondi issues a litany of memos, and the courts become the strongest line of defense. Plus: the fight over sanctuary cities, and Mary’s latest case.
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- [00:01]
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- [01:02]
Customer Testimonial
Foreign.
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Andrew Weissman
Welcome back to Main Justice. It is Tuesday morning, February 11th. I am Andrew Weissman and I am here with my co host, Mary McCord. How are you, Mary?
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Customer Testimonial
I'm exhausted, Andrew, how are you?
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Andrew Weissman
You know, I'm fine. And in some ways the reason I'm fine is this podcast because there's such a flood of information and things to discuss and one of the things that we actually are, what I would say is working overtime.
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Customer Testimonial
Oh my God. Yes.
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Andrew Weissman
Not just in terms of reading, but what I think is really useful is we really are thinking about how to make what is going on digestible because you can't follow every single thing and how to put it into a framework. And so it may not sound like it all the time, but Mary, you.
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Customer Testimonial
And I do that. Yes, that's right.
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Andrew Weissman
Exactly.
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Customer Testimonial
We've been back and forth all weekend.
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Andrew Weissman
Yeah.
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Customer Testimonial
And then of course, new things happen during the night. So like our best laid plans were like, oh, now we have three new things that are actually quite important that we need to tackle.
- [02:18]
Andrew Weissman
I was in a car going to 30 Rock last night and I'm like, oh. Eric Adams, the acting Deputy Attorney General is directing the Southern District of New York U.S. attorney's office to dismiss the case. So I was quickly reading all that and then immediately talked about it on air, which I have to say kudos to Lawrence O'Donnell because I said I really want to talk about this. And he's like, great. So we're going to do a little bit of that today. But Mary, what's on our agenda and how are we sort of going to structure this to, I wouldn't say spoon feeding, but at least give a framework for what's going on?
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Customer Testimonial
Yeah, I mean, we are called main Justice. So we're going to start with the absolute flood of memos that came out of the department as soon as Pam Bondi was sworn in as the attorney General. I think that very day it was just like one after the other after the other. And these have, we can't cover them all. There's too much. But I think it's worth us talking about in particular the significant impacts on this whole weaponization or ending of weaponization of the Department of Justice, which actually reads quite a bit like actually the weaponization of the Department of Justice.
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Andrew Weissman
Pure George Orwell.
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Customer Testimonial
Yeah, yeah.
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Andrew Weissman
It really is pure double speak.
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Customer Testimonial
It absolutely is.
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Andrew Weissman
We're going to weaponize the department because.
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Customer Testimonial
They'Re to get rid of weaponization.
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Andrew Weissman
Yes, yeah, exactly.
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Customer Testimonial
So that. And then we'll talk about the priorities shift here too, which has some pretty significant national security implications that I don't think have gotten enough airtime. And by airtime I don't just mean on television news, but also in print because frankly there is such a flood. Right. It's hard to focus on everything. But these are things near and dear to both of our hearts. So we want to talk about them, obviously talk about Eric Adams in our second segment. We cannot talk about every single court case because there have been so many. But a theme is coming through here that the courts are acting fast and almost a hundred percent are shutting down things that the Trump administration is doing that's lawless, seeking to stop various things that were done through executive order or through those type of just executive actions and directives that don't haven't gone through any sort of process and that actually violate the law. And so the courts are really becoming the first line of defense right now because Congress is a little bit asleep at the wheel, or at least half of Congress is. And then we will come to something that we have mentioned in passing the last few weeks, which are that one of this major priority shifts of the Department of Justice and the entire administration is toward this mass deportation goal and cracking down on so called sanctuary cities and eliminating things like the policy of not Doing ICE raids in churches and schools. That's going to be in our last segment. And spoiler alert, my organization this morning, an hour before we recorded this podcast, filed a new lawsuit in that area, which I love.
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Andrew Weissman
Spoiler alert. I love your lawsuit. I mean, it's just, I just think it's, and I'm not talking about the substance, although I, I also love that, but I just think it's really well framed. We'll talk about that. That'll be a great opportunity because you'll be able to talk about that and I'm going to be able to talk about my mayor and the way in which the dismissal is structured to help the department keep a very tight leash.
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Customer Testimonial
On him and to help the department on the immigration goal.
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Andrew Weissman
No, no, that's what I mean. Absolutely. So I can tell we're. Here we go from there. Okay, so Pam Bondi, to put a frame on it, we're going to talk about things that are policy changes that she has initiated within the Department of Justice. Just, you know, elections have consequences. So these are policy changes. This does not fall into the bucket of things that are being challenged as illegal. This falls into the bucket of. These are going to be my words. This falls into the category of policies that are dumb.
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Customer Testimonial
Yeah. Right.
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Andrew Weissman
So that's the, that's the technical legal term.
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Customer Testimonial
Bad for public safety, bad for national security, all of that.
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Andrew Weissman
Right? Yeah. So let me start with dumb, number one. Okay, so we're keeping score and creating a, like a spreadsheet. Spreadsheet backup. I was at Main Justice. I was the chief of the fraud section. That's within the criminal division. It is a hundred plus attorneys, prosecutors who are assigned to bring white collar cases against individuals and companies that violate the law. And one of the areas I oversaw was a group of prosecutors who were charged with enforcement of the fcpa. And FCPA is the Foreign Corruption Practices Act. That statute has been enforced by Republican and Democratic administrations. And what it does, this is in a broad brush, makes it illegal to pay bribes. If you are, for instance, a U.S. company or a foreign company that acts within the United States, and the bribes are to gain business from a government contract. So essentially, you have to just submit on the merits what your capabilities are, the price, the timeline, the quality of your work. And you don't get the work because you paid the most under the table. Every single country.
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Customer Testimonial
That's not one of the checkboxes on going through who gets the contract, what are you willing to pay for?
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Andrew Weissman
Not until Pam Bondi's memo on February 5. Every single country in the world, Every country, every makes it illegal to pay bribes in various permutations of those laws. But it is illegal everywhere. And the FCPA is one way in which the United States adheres to that. FCPA enforcement has gone up dramatically. Cases are brought not just against American companies. In fact, I would say the vast majority, but majority are against foreign companies. And it creates a level playing field. More backup. Before the Trump 1.0 presidency, it was reported that Donald Trump hated the FCPA statute. I was always very curious about why he even knew about it. He obviously has businesses overseas. It was just always striking to me about why it came to his attention. But it could be that he knew he couldn't do it and he didn't do it. That's one theory. And it was reported by Rex Tillerson that During the Trump 1.0 presidency, the president asked him to get rid of the fcpa. And Rex Tillerson reports that he had two responses. One, it's a congressional statute. So I, as Secretary of State, don't have the authority to get rid of a congressional statute. By the way, CEG everything else we're going to talk about today and last.
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Customer Testimonial
Week that was a preview in Trump one of what we were going to see really big in Trump.
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Andrew Weissman
Two, yeah, it's a statute. Can't do it. Second, remember, Rex Tillerson came from being head of CEO of Exxon and he said it's a good statute. Why is it a good statute? Because without it, it is law of the jungle, not the rule of law. And what it means is everyone has to pay bribes to win a contract. So you have to pay a bribe and the business will go to the person who pays the most under the table. And as the head of Exxon, he's like, we don't want to be in that world. We want the rule of law, not just in this country, but around the globe. Because companies, large companies, act internationally and are not bound by nation state rules. So this is a way of having a level playing field. So that is a backdrop to what Pam Bondi said, which is that the fcpa, which I had been overseeing and many, many other people had been overseeing as part of the being head of the fraud section. The FCPA will no longer be criminally enforced except, except for drug cartels. That's the dumb number one. It's not just I'm not going to enforce it in general, but we're going to enforce it to drug cartels. Spoiler alert. Drug cartels do not apply for government Contracts and pay bribes. So that's like saying we're going to enforce the tax audit rules, criminal tax audit rules against the destitute.
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Customer Testimonial
Right.
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Andrew Weissman
No need. Not paying taxes. Also, by the way, even if drug cartels were violating the fcpa, there are other statutes, such as the drug statutes and rico. I mean, I hate using this word, but it's so dumb. Yeah, it's both bad policy not to have the FCPA being enforced, but then to have this tagline just shows such an unawareness of the problem and the issues. And it's almost like, okay, I want the politics to be, oh, we're enforcing it about drug cartels. So it reads smart, but it's just incredibly ridiculous to be having that as the new policy on day one.
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Customer Testimonial
And it's also like you just, you mentioned, they're unnecessary because there are other tools, I will note in two different memos.
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Andrew Weissman
Other tools that are stronger.
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Customer Testimonial
Yes, yes, yes. Two different memos from the Attorney General. On her first day in that office, she made clear that a priority is going to be in using criminal tools against drug cartels.
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Andrew Weissman
That's great.
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Customer Testimonial
And transnational criminal organizations and pointed out certain task forces that would remain and would be prioritized and use of other tools like the tools you mentioned, which would be emphasized. So it's just not necessary. And what it's really doing is taking away that important statute that did create a more level playing field for multinational companies and companies that want to be able to compete fairly without worrying about competing against somebody who's willing to pay to play.
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Andrew Weissman
So just imagine you are now an American company that for decades has been told by administration after administration, Republican and Democrat, that you have to comply with the fcpa. Now all you're going to be thinking about is, well, what do I do? Maybe I have to worry about foreign laws. But the foreign laws actually hold us to a higher standard. But we just got a green light on this from America. Are we supposed to now have a budget item for paying bribes? I mean, and then deal with foreign jurisdictions which are sort of much more varied in terms of their enforcement regime? It is unbelievable. As a friend of mine said, who's a white collar defense lawyer? It's like this is like the time to be a white collar criminal. That this is, you read this memo and it's like, okay, we're going to focus on drug dealers. But if you're a corporate executive committing crime, it seems to. I mean, this is hyperbole because the memo doesn't say that, but it reads like you Know what I mean? What would be the reason to tell a company that you actually could just go ahead and violate the FCPA and there isn't going to be criminal enforcement of it? I mean, it's just eradicating the a congressional mandate again to our general theme, but with such ill effect on what it's going to mean for corporations and us. Because at the end of the day, that does not help anybody to have contracts awarded by who pays the best bribe. Let's say you're talking about airplane contracts and safety concerns. You want the person who's actually going to have the best equipment and best safety. Exactly. You're not going to be like, oh, my product is crap, but you know what? I'm going to pay the most money under the table. Which, by the way, now is not under the table.
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Customer Testimonial
Well, yeah, and to your point, there's a signaling feature also because the National Security Division's corporate enforcement unit was also disbanded. You mentioned open season for white collar crime. And that's another signal like this is not where our priorities are. Our priorities are on immigration enforcement, which is made clear in this series of memos. It's made clear in the series of executive orders. But another thing that has been deprioritized is the whole concern national security, significant threat from foreign influence.
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Andrew Weissman
Absolutely.
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Customer Testimonial
You also know very much about Andrew, having worked on the Mueller investigation, which was really sort of all about foreign influence on our elections. And we know from not just that investigation, but other sort of independent reviews of the 201616 election. We know from FBI and our intelligence community statements about the 2020 election, about the 2024 election, that there is a strong effort on behalf of our foreign adversaries to influence our democracy here. And it's not just elections. It's so many things.
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Andrew Weissman
Absolutely. And it's worth remembering that the Senate issued a report, not just the Mueller report, but the Senate issued a bipartisan report about foreign adversaries, in particular Russia, trying to illegally influence the 2016 election. And when I say it was bipartisan, one of the people who signed that report, signed onto it is the current Secretary of State, Marco Rubio. So this is something that again, in the sort of Earth 2 category where Donald Trump says the January 6th defendants were actually assaulted, not assaulting. This is one where he might try to, he's saying, I want to whitewash all this and pretend that black is white and white is black. But the Senate, when it was even remotely sane, had said this is what was going on and signed onto it.
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Customer Testimonial
And so just to be more clear about what I meant by not caring about that, one of the Bondi memos says that it is freeing resources to address more pressing priorities and ending risks of further weaponization and abuses of prosecutorial discretion. That's a quote. And also that same memo ordered a restriction on the use of criminal charges under fara, that is the Foreign Agents Registration act and related criminal offenses to limit those to instances of conduct that is similar. And these are the words used to more traditional espionage by foreign government actors. Now never mind, those are things under a different statute than Farah. But the Foreign Agents Registration act is another one of these statutes that is about trying to limit foreign influence by requiring transparency. If you're going to lobby in the US or do other things that are to influence policy on the behalf of a foreign government, you have to register, you have to say that's what you're doing. So you can't be sort of like a high level former government official or incoming government official, as we've seen in the past, out there saying things, publishing op eds, whatever on behalf of a foreign government if you don't register, if you're actually being paid to do that type of work. So this is an all out assault, I'd say, on the tools we have to rein in foreign influence, foreign corrupt practices. And also I'll note, interestingly, taking a lot of authority away from the national security division within DOJ. Now people at U.S. attorney's offices have sort of a love hate relationship with main justice because where you sit is where you stand. But in national security, ever since the National Security Division was formed, there have been requirements so that there will be consistency across the country in the way that we investigate and prosecute national security offenses, whether we're talking about terrorism offenses, spying or intelligence related offenses, national security cyber offenses, so that there's consistency. And the memos have removed some of those requirements to seek, consult and get approval from nsd.
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Andrew Weissman
So one other thing that the memos did is an important tool that the government has and the State Department has to avoid wars is sanctions. So right after Russia invaded Ukraine in an unprovoked attack on a nation state, I'm saying it that way because there's also efforts to sort of reframe all this. Yes, after that happened, there were numerous sanctions imposed on Russia. There also was an incredible response from the public, including a lot of companies about not doing business and taking steps to footstep on those sanctions. One of the things that the Department did was create various task forces with fancy names like kleptocracy and kleptocracy capture. But basically it was a way of enforcing sanctions. If you impose sanctions, which is an interim between doing nothing and declaring war. And it's a tool that is grown a lot. But one of the things to make it effective is you have to make sure that they're working. And this group of prosecutors was assigned to detecting and prosecuting violations or seizing assets that are involved in improperly transferring money to or from the state that is being sanctioned, that has been eliminated. So to the same way that I'm saying, oh, corporations are being told, hey, free for all.
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Customer Testimonial
Yep.
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Andrew Weissman
This is if you are Russian. Exactly. It's like you could. Now what this memo says is don't worry about criminal enforcement of that. We're not going to have a deterrent on that of criminal enforcement. We're going back to the old regime where there was just, it was largely just ignored.
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Customer Testimonial
Ignored.
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Andrew Weissman
And so these are really important changes that Pam Body as a policy matter, again, just to be clear, we're not saying it's.
- [19:56]
Customer Testimonial
You can make priorities, you could have different priorities from administration to administration. Right. It's a bad idea.
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Andrew Weissman
Right. Mary, what you and I are saying is this is just really dangerous ideas, really dangerous policies. And you have to ask yourself why, why would you possibly do this? Who are you benefiting? And when you look at that, you think corrupt corporations are benefiting and foreign adversaries are benefiting. What part of that is America first?
- [20:25]
Customer Testimonial
Okay, that's a good break time. Even though we didn't get to everything that we thought we would get to in this section, we definitely want to talk about the directive to dismiss the case against Mayor Adams. I think that goes quite nicely in our third topic. And after the break, we'll come back and talk a little bit about what's happening in the courts.
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Andrew Weissman
Sounds good.
- [20:51]
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- [21:07]
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- [21:19]
Customer Testimonial
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- [21:25]
Henry Meds Representative
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- [21:38]
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- [22:44]
Andrew Weissman
Okay, welcome back folks. I'm going to give you a sort of quick overview of just the enormous range as we sit here today of the number of cases that have been filed since January 20th. So we're talking about less than a month. And then we're going to do a deeper dive on what we think is particularly significant. And we want to call to your attention, but that way you have a sense of just how much is out there. And Mary and I are going to do a quick shout out to our colleagues. We are on the board of Just Security. They have a litigation tracker that is just fabulous for those people who want to keep tabs and know more. But just to give you a sense, just within sort of immigration and citizenship, there are, count them, eight cases involving birthright citizenship. We know one of them is brought by Mary McCord and iCap. There are also cases involving sanctuary cities. There's cases involving the challenge to expedited removal, the restrictions on asylum, the restrictions on an app that was available by the CBP, to the restriction on lawyers on moving people to Gitmo, the refugee program, and most recently a case that Mary's filed involving places of worship, which we'll talk about in a moment. Also in under General Bucket, there are numerous lawsuits involving sort of government actions, the attack on the civil Service and having something called Schedule F. There are four cases on that. There are a whole series of cases. I think I counted up to ten involving the doge, this Elon Musk outfit.
- [24:29]
Customer Testimonial
Department of Government Efficiency, so called because it's not a department at all. It is embedded in the office of the President, which was really kind of a sneaky thing to do because that means that federal open meetings laws don't apply. FOIA doesn't apply. All the tools that are used to get some transparency about what DOGE is doing arguably don't apply because it's in the office of the President.
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Andrew Weissman
There are also challenges to the so called fork in the road memo from Elon Musk trying to have buyout programs of civil Service, which are not buyouts. Exactly. Then there's another lawsuit involving the National Labor Relations Board and the firing of senior official there. There also are numerous challenges related to essentially money and challenges that the administration is violating essentially Congress's power of the purse. So there are three lawsuits involving OMB and nih. There are lawsuits involving the usaid, the cfpb. Then there's a whole series of cases involving dei.
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Customer Testimonial
We are in a series of acronyms here.
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Andrew Weissman
Yes, we are. It's like welcome to D.C. and also to what I think is a real attack on the trans community in terms of housing. They're being able to serve in the military, receiving care, being able to have a passport. That's accurate. So there are almost a dozen lawsuits that in some way relate to that. And then there are two lawsuits that we did talk about and following closely, having to do with both the firings of people at the FBI and the compilation of this huge list of thousands of FBI employees and it not being made public in violation of the Privacy act, if it were. That's the allegation. And that they shouldn't be subject to higher scrutiny than other people just because they worked on the January six cases. So there really are just so many lawsuits and they're all in various states of play in terms of whether a temporary restraining order or a preliminary injunction has been issued. And something that I'm about to turn it back to you, Mary, which is whether the government has been complying with court orders that have been issued either as temporary restraining orders or preliminary injunctions. So with that, I think that gives the audience a sense of like, there's no way we can cover all of that. And so we're going to pick out from that huge panoply things that we think are useful to focus on.
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Customer Testimonial
Yeah, that's right. And it is just so much. It's hard to keep track. There's good reporting out there. There's the tracker on just security. But it really is hard, even for us. And we pay very close attention to this. And I think it's also important for listeners to know when you go into court, you can file a complaint which starts a civil lawsuit, and then if that's all that you file, then that's going to go on a slower pace. But in almost every one of these cases, we are seeing the plaintiffs come in seeking tro, a term we used a lot last week, a temporary restraining order and or a preliminary injunction. And both of those are highly expedited. Move fast, get a court order barring the thing that you are challenging, and have it barred until a more orderly set of arguments and presentations can be made to and including a trial. In some cases, if the facts are in dispute, I would say for a lot of these cases, the facts aren't really in dispute. It's things that the new administration is doing that just violate the law and the facts aren't particularly contested. And so what we're seeing in almost all of these cases at court is that courts are granting those injunctions. They're granting either a TRO and then having a PI hearing, preliminary injunction hearing shortly thereafter, or they're just highly expediting the briefing on the preliminary injunction hearing and doing that within a matter of of days. That was certainly the case in our birthright citizenship case that I kept brought on behalf of women who would be impacted by that. We had a highly expedited briefing and a preliminary injunction issued last Wednesday. It was the first of the cases to be heard on preliminary injunction. That was followed by an argument on Thursday and the issuance of another preliminary injunction by a judge in the state of Washington, argument in another case Friday, and the issuance of another preliminary injunction by a judge in New Hampshire. So all of those judges right now are coming out the same way in saying that this executive order seeking to terminate birthright citizenship in certain cases appears to be in violation of the Constitution and federal law. Those are things the government now has noted, an appeal of both the case that ICAP brought and the case that's out in the state of Washington. Those are things, though, to get to your point about, how about the case involving freezes? Those are things that right now, those injunctions, it's Easier to determine whether the government is complying. Right. Because there's an injunction saying, first those people right now you can't say that they don't have citizenship. And we're stopping you from doing things that you were otherwise going to do starting February 19, such as refuse to issue Social Security cards or other identifying documents. That's all stopped. These other cases you were indicating about, I'd say these are the next most important things to talk about have to do with these federal funding freezes. This is where we have an executive order seeking a pause on a lot of federal funding. But then there was an OMB memo briefly, and we talked about this last week in our podcast that hit an immediate pause. And after lawsuits got filed right away, and after a TRO was entered, right away, OMB said, oh, we're withdrawing that memo. And therefore these cases are moot now because we've withdrawn the memo. And I think we both read some portions of one of the judges ruling rejecting that, saying, well, you might have withdrawn the memo, but the spokesperson, you're still doing it. And the spokesperson, a White House spokesperson, said, we're still doing it. So now this is one where we're able to see that they're not in compliance. And that's because those who are recipients of various funding, those can be people with contracts, people with grants. Right. And I don't mean just individuals. Some might be individuals, some are state and local governments, law enforcement agencies, other organizations, hospitals, educational institutions. So many different government contracts and government grants out there. And the word started getting through. The funding is still frozen, we're still not getting it. And that's where we saw one of the judges, I think it was just yesterday, issue an order saying, it's been reported that there's non compliance with my order saying, you cannot freeze this federal funding. And I'm going to be very crystal clear here I am, barring all of these things, you cannot freeze this funding. And this leads us to the question that I think you and I want to just flag for people because it's starting to get attention, this idea of a constitutional crisis.
- [31:28]
Andrew Weissman
Right. And so we're seeing that because as you mentioned, there's this case in Rhode island, there's another in Massachusetts where the judges have issued orders and the plaintiffs have come back and said, I think the government is still violating. And there could be hear things on that. But if there is a clear and intentional violation, it's essentially. Mary, what's the answer? Because normally the way that one deals with that in this country is the courts are here to decide disputes. And you can disagree with the court. And you do have a remedy. If you think that the court got it wrong and that is to appeal, you appeal. And then if the court agrees to do on appeal, great. Or narrows it or changes it, and you can do that potentially all the way up to the Supreme Court. But ultimately you have to do what the courts say. Very famously, President Jackson, so we're going back early 19th century, said something that is anathema to the rule of law, which is, you know, essentially we heard you. Now good luck enforcing it because obviously judges don't have an army. What they do have is what's in all of our, in our hearts and beings and minds is what it means to be an American, which is you follow the rule of law. And again to our first segment, it's not a law of the jungle. This is what it means to be part of a civilized society. And so again, you're free to disagree with the courts and to say that you think they got it wrong, but the remedy is you either comply or you appeal. Those are the two. And if you don't, there are certain remedies. But Mary, what's your take on sort of a lot of the talk right now about a court constitutional crisis?
- [33:09]
Customer Testimonial
And what that really term is referring to is if you have a situation where, you know, we have three branches of governments for a reason, separation of powers, checks and balances, as we've talked about, if there's a situation where court rulings are ignored and not adhered to by the executive, then you have. The reason that's thought of as a constitutional crisis is because we have two co equal branches of government that now are, you know, one is asserting authority over the other. Even though the Constitution gives the judicial branch the authority to say what the law is.
- [33:44]
Andrew Weissman
Right. Imagine it otherwise. I mean, the president doesn't get to say, I'm not only making the law, but I will decide whether it's constitutional. I mean, and then we don't even.
- [33:52]
Customer Testimonial
Have a judicial branch. Right. What's the point?
- [33:54]
Andrew Weissman
Exactly. So there's a reason. And this is, you know, again, if you're a lawyer, you know, this was the fundamental decision in Marbury vs Madison, which is, I mean, this is a core bedrock case and you just refer to as Marbury. And that's where the Supreme Court said, no, we decide what the law is. And that's why people talk about judicial restraint and making sure that it's really in the Constitution. But just to be clear, part of Our democracy is not to say, oh, the will of the people is X. You may vote for a president, you may vote for people in Congress. But ultimately, if it is not constitutional, that is also part of our democracy. And deciding what is constitutional is the province of the courts.
- [34:39]
Customer Testimonial
That's right.
- [34:40]
Andrew Weissman
What's remarkable to me, Mary, is this discussion is the discussion you have in, I'd say, seventh grade.
- [34:48]
Customer Testimonial
Yeah. About the branches of government. Yes. But I do. I think you and I both want to caution people. There's a lot of talk out there suggesting we are at this moment and we're just not. We're still having preliminary rulings in the district courts. Yes. There was a problem here with the funding freeze. I'm not ready to say that it was an absolute intentional flagrant. We're going to violate the court's order as opposed to. This is a huge government to, like, put the pause. And it's a huge government to unpause the pause. And I think. Which remains to be seen now after this clarifying order. And I'm just kind of like raising my eyes when I say clarifying because the judge definitely said, I don't think anything really needed to be clarified. But let me just clarify anyway what you're directed to do and not to do. So, you know, we'll see. I expect, like I mentioned, there are appeals in the birthright citizenship cases. Right. I expect appeals in these other matters. And I am not going to say we're in that crisis unless and until we're really in that crisis, because I think that's just, you know, it's a little too hair on fire. And we need to, you know, we need to calm down and encourage rule of law.
- [35:56]
Henry Meds Representative
Right.
- [35:56]
Andrew Weissman
I agree. I also feel like even in Rhode island, when the government came in, they had an argument.
- [36:02]
Customer Testimonial
Yes.
- [36:02]
Andrew Weissman
For why they thought this wasn't covered. And that's sort of a recognition that they can't just show up. A lawyer can't just show up and say, we're just not.
- [36:10]
Customer Testimonial
We're not doing it.
- [36:11]
Andrew Weissman
I mean, that's just. You lose your bar license over things like that. That's not how the system works. So. I totally agree, Mary.
- [36:18]
Customer Testimonial
Speaking of the bar.
- [36:19]
Andrew Weissman
Exactly. Yeah.
- [36:20]
Customer Testimonial
Yeah. Speaking of the bar. Pretty.
- [36:22]
Andrew Weissman
You want to go get a drink? Because it's already. It's. Because it's 11:20.
- [36:26]
Customer Testimonial
It's 11:20.
- [36:27]
Andrew Weissman
And it's 5:00 somewhere.
- [36:29]
Customer Testimonial
Somewhere. Yes, I want to be.
- [36:30]
Andrew Weissman
I think I've given up on that 5 o'clock somewhere. It's like, I don't even need to say that anymore.
- [36:35]
Customer Testimonial
That's right.
- [36:36]
Andrew Weissman
That's not where you were going.
- [36:37]
Customer Testimonial
No, but that's a good idea. The American Bar association is a voluntary organization and it's been around I don't even know how long and many, many members, every attorney, in order to practice law, has to pass a bar in a state that they're going to practice in. So the American Bar association is not a bar that take a test and pass to get an ABA sort of credential, but it is an association of lawyers who are members of a bar somewhere. Right. And they are a typically, I'd say, relatively cautious organization. Rarely do they take a position on anything. For years and years they have had a role, the American Bar association, in sort of reviewing judicial nominations to indicate whether the nominee is qualified or not qualified. And that is something certainly in the first Trump administration there were enough number of sort of not qualifieds that came out. But that's been one of the more aggressive things I would say that the ABA has done.
- [37:34]
Andrew Weissman
So, Mary, that's a great table setter. So what did they do yesterday?
- [37:37]
Customer Testimonial
Yes, so they put out a lengthy statement called the ABA supports the rule of Law. We can link to it in the show notes.
- [37:45]
Andrew Weissman
Shocker.
- [37:46]
Customer Testimonial
Yes. Right. And you know, I can't read the whole thing because it's quite long, but I do want to just read the first two paragraphs because I think it's important. It starts with it has been three weeks since Inauguration Day. Most Americans recognize that newly elected leaders bring change that is expected. But most Americans also expect that changes will take place in accordance with the rule of law and in an orderly manner that respects the lives of affected individuals and the work they have been asked to perform. Instead, we see wide scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity. And then it goes on and on. This is a very direct statement by the aba. I mean, they even give examples. Right. This is not a 35,000 foot sort of statement. You know, we want everyone to adhere to the rule of law. They're getting specific and they get even more specific as you go along in read the statement. And let me just be clear. Members of the ABA are Democrats, Republicans, Independents, you know, across the board. It is not a political organization, which is why it is always so cautious on matters that could be perceived to be political. So I thought it was quite Something I think you had the same reaction.
- [39:12]
Andrew Weissman
I did, too, precisely because of the background of the group. I wanted to read two sentences that I also thought were important. The goals of eliminating departments and entire functions do not justify the means when the means are not in accordance with the law. I think that very nicely separates what's happening. And the other which I think is really important is this. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. And the reason I think that is important is I think that one of the things we're going to be hearing is, oh, look how much money we save. But when you're doing that, either because you've done it through illegal means as determined by the courts, or you've taken a sledgehammer to, you know how you can save money? You can get rid of Social Security, you can get rid of Medicare and Medicaid, you can get rid of NIH grants to curing cancer. I mean, there are all sorts of things you can do where you can say, look how we saved money. But what you're actually doing is taking money from programs that really help people. So I think that sort of like, oh, look how efficient we're being is a bumper sticker that hides what is being done. Nobody disagrees with the idea that it's always worth looking at every agency and every bureaucracy to see how it can be more efficient. That is not what's going on. So are we ready for topic three?
- [40:49]
Customer Testimonial
We're ready for topic three. I mean, we could keep going. We could keep going, to be clear, but that ABA statement is a good. It's a good ender for this segment.
- [40:57]
Andrew Weissman
Okay, so let's take a break and we're going to come back and we're going to spend a little time talking about sanctuary cities and the much promised discussion of Eric Adams, the mayor of the city of New York. It's not exactly consistent with the rule of law, which is like sucking up and thus getting a benefit from the king. But that is what we're seeing. So let's take a break and we'll come back. We'll talk about sanctuary cities and Eric Adams.
- [41:22]
Customer Testimonial
Sounds good.
- [41:32]
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- [42:50]
Henry Meds Representative
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Henry Meds Representative
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- [43:24]
Customer Testimonial
Welcome back. As we have been talking about for a few weeks and even earlier in this episode, we do want to talk a little bit about the new sort of immigration priority of this administration. Their attacks on so called sanctuary cities. And I'm saying so called because that is a label that you know has I think being used to really suggest that there's something different than they are. So let's start with what does that even mean? There are many, many jurisdictions across the country at the city level, local sheriff level, county level, state level that have decided who have, I will say, you know, Republicans in charge and Democrats in charge. This is not as partisan as people think it is who want to make decisions for what is good for their community when it comes to law enforcement and public safety. So many, many jurisdictions and even at the state level Make a decision. You know, federal immigration enforcement is by law and supreme Court, a federal regulatory regime, something that is only voluntary for state and local governments and law enforcement to cooperate with. And we, as state and local law enforcement and government officials, we're not going to interfere with federal law enforcement, but we're not going to do things to assist things that might make our community feel like they can't ever talk to law enforcement or to the government, that they have to be in hiding all the time, that they won't report crimes, that they won't seek benefits for their children, that they won't send their children to school, seek health care for their children, like things that we need as local officials and state officials to do for our community. So I think these types of policies are really about public safety policies and should get a new name. Sometimes local jurisdictions will call them welcoming city policies, letting them know that immigrants are welcome in their communities and should not fear law enforcement. But generally, what these policies reflect are a couple of things that law enforcement and public officials will not ask people for proof of their citizenship or their immigration status. This when it's not relevant to whatever the encounter is based on. So state and local law enforcement can say when they're enforcing state and local law, it's irrelevant whether somebody is a citizen or what their immigration status is. So they're not going to ask about it. It's irrelevant to things like, you know, seeking certain healthcare and things like that if the benefits don't require citizenship. And it is relevant to voting, for example.
- [45:58]
Andrew Weissman
Right.
- [45:58]
Customer Testimonial
So if you're going to vote, you do have to be a citizen, at least in a federal election. Now, some state and locals allow non citizens to vot, then they end up having to, you know, determine status. But many of these policies say we're not going to ask about people's citizenship and immigration status. We're not going to alert dhs, the Department of Homeland Security, or ice, the Immigration and Customs Enforcement Office. We're not going to alert them. If we have someone detained in one of our, you know, jails, maybe serving a sentence or maybe they've been detained pretrial and they're now due to be released. We're not going to give notice in advance to ICE when someone's about to be released, because that's an ICE thing to do. We're not going to give that notice because we don't even ask people about their status. And we're not going to hold people in detention on an administrative ICE warrant. That is a warrant that is A civil warrant for a violation of federal immigration laws. It is not a warrant that is based on probable cause of a crime. It's not a warrant that's signed by a judge. An administrative ICE warrant is simply a warrant signed by an immigration official that says a certain person may be in violation, civilly, not criminally, of immigration laws. And many of the state and local governments with these policies have two reasons for not complying with those warrants. One is if the person who's in their detention is no longer able to be held consistent with state law or the Constitution. Right, because their time is up and they're due to be released, or they were held in a pretrial status and they've now paid their bond right, and they're due to be released. To hold them without probable cause. And a judicially signed warrant could violate the Fourth Amendment. And there's also tenth Amendment commandeering concerns with the federal government requiring local, state and local law enforcement to enforce a federal regulatory scheme. There's a Supreme Court case called Prince v. United States that held years ago. The federal government cannot commandeer state and local governments to enforce a federal regulatory scheme. So that's what these policies are about. But it's something that this administration and this Department of Justice is very, very opposed to because they want more state and local cooperation with federal immigration enforcement. And they've taken a very heavy hand on that. I do want to flag a couple of other things. So in this sort of shift of enforcement priority, that means what we've seen is some of the memos out of the Department of Justice are frankly misstating the law. They're suggesting that Supremacy Clause requires compliance with inquiries by ICE or dhs. And I think that's just wrong.
- [48:44]
Andrew Weissman
I mean, it's almost deliberately misleading to suggest that if you don't do it, you could subject yourself to criminal prosecution. And I think we talked about the line is, you can't like, like, actively obstruct a lawful federal directive or program that the feds are doing themselves. Like, you can't intentionally interfere with that, but you have no obligation to help them. And there, you know, the states have pushed back on this, saying, wait a second.
- [49:14]
Customer Testimonial
Well, there's two things happening, right? The aggressiveness of DOJ filed a lawsuit late last week against the State of Illinois, the city of Chicago, the county of Cook county, to try to get a declaratory relief and an injunction against their welcoming city policies, making some very creative arguments that these violate the Supremacy Clause, which is not that creative. But then also violate the Supremacy Clause because it's unlawful discrimination against the federal government. On the argument that state and locals share law enforcement information about other things, like crimes with other state and local and federal enforcement authorities, but not immigration. And then a really creative one, unlawful regulation of the federal government, government by state and locals. So these are pretty out there, types of causes of action, but that's how aggressive DOJ is being. And similarly, as you also indicated, some of the cities and states are pushing back. We saw San Francisco leading a lawsuit against the government seeking declaratory injunctive relief against any restrictions on funding law enforcement grant funding from the Department of Justice that would be conditioned on real assisting and helping the federal government in enforcing federal immigration law. So we've got the litigation on both tracks right now.
- [50:31]
Andrew Weissman
So this might actually be a good time for me to talk about the Eric Adams case. And people might be thinking why. And then we'll turn. Mary, to you.
- [50:37]
Customer Testimonial
Yeah, to the men in the United States.
- [50:39]
Andrew Weissman
Yes. So the acting Deputy Attorney General, Emil Beauvais, issued a letter yesterday to the prosecutors in the Southern District of New York. They had months and months ago sought and obtained a grand jury indictment of Eric Adams, the sitting mayor, for a whole panoply of federal felonies. The letter yesterday said that I am directing you to forthwith dismiss those charges without prejudice. Listeners to this show know that without prejudice means that they could be reinstated. Keep your eye on that. That's the key. They're not saying dismiss, dismiss with prejudice. So dismiss without prejudice. And are essentially two reasons given. They say this has nothing to do with the facts and the law. So they're not disputing in any way, shape or form the facts is set out or the legal theory.
- [51:36]
Customer Testimonial
And they say that. They say that explicitly. We're not just surmising that. They say that.
- [51:40]
Andrew Weissman
Yeah, yeah, yeah. Actually, you know what? In our show notes, we'll put the letter there so you can read it yourself. And he gives two reasons. The first is that he says this case was brought too close to the New York primaries. I'm going to use another fancy legal term that's bullshit, as you notice. By the way, I think the 2025 is the year Andrew Weissman just, you know, all of this sort of God's green earth and these euphemisms gone, yeah, my Brooklyn's coming out. That's just not true. It doesn't violate the 60 day rule. It doesn't violate anything that, anything that the department's ever done. And so that's just a made up thing. The second is much more nefarious. And it goes to your point about this idea of co opting local law enforcement by the feds. The second reason is, and I'm going to quote, the pending prosecution has unduly restricted Mayor Adams ability to devote full attention and resources to, to the illegal immigration and violent crime that escalated under the policies of the prior administration. So in effect, what this is doing is it has a sort of Damocles over Eric Adams head, which is we are going to be watching to see how you enforce these rules in New York. And because the dismissal is without prejudice, this is something that the letter says it will be reconsidered. This is something that's going to be under evaluation. So essentially it's like putting him on probation. And it's like we're watching you. This is an elected official where they're doing this. It is as close to extortion as I have ever seen in black and white. And the kicker to me is that, you know, they're thinking about that. When you look at 1 footnote 1 exactly which is it says that, that your office, meaning the Southern District of New York, correctly noted that Mr. Bovet said that the government is not offering to exchange dismissal of a criminal case for Adam's assistance on immigration enforcement. That is, don't look through the curtain.
- [53:55]
Customer Testimonial
We're not doing that. We are not putting him on probation to see if he will, you know, assist with immigration enforcement. If he does this case, State is dismissed. That's not what we're doing. Nope, nope, nope.
- [54:06]
Andrew Weissman
I just don't understand footnote wise. And the second reason are just, it's basically this is the January 6th defendants were assaulted, not assaulting people. It's like it is in black and white in the letter. And then just because you put a disclaimer saying, by the way, what we say in paragraph two, you should ignore it as if you haven't read it. You don't think that that's what Eric Adams is feeling? And it's not even feeling it's there.
- [54:33]
Customer Testimonial
It's the quiet part out loud. I mean, it's just the quiet part out loud. And it's like, okay. And you know, it's really amaz to me. I don't know who writes these things, but like, clearly they are not thinking very hard about the message they're sending. I mean, sometimes they don't care. But here you think, I don't know, maybe they, maybe they want to send that clear message. I don't know. I don't know how to think about any of this anymore, but it's pretty shocking.
- [54:56]
Andrew Weissman
This is might makes, right. Yeah. Mary.
- [54:59]
Customer Testimonial
Yeah.
- [54:59]
Andrew Weissman
I read this morning your new. I shouldn't say your ICAPs. Right. I know you're a huge part of it, but your organization is counseled on a new case and what's the gist of it? Where is it brought and what are you arguing? Yeah.
- [55:15]
Customer Testimonial
And it fits in with this discussion on topic three because this is part of this sort of opening the floodgates to try to do mass deportations and use every possible mechanism. So this is a case brought by more than two dozen different denominations and associations across Jewish and Christian faiths that have thousands of members, synagogues, churches, places of worship up challenging the administration's decision on day one of the new administration to rescind a more than 30 year old policy by which ICE would not enter places of worship to conduct ICE raids, arrests, any type of immigration enforcement actions. And this persisted under Republican and Democratic administrations because of the respect for what's going on in these places of worship, respect for people's First Amendment rights to express their religion and to associate with others to express that religion. And so the challenge here is that this rescission of this policy that has been spoken about by members of the administration is essentially, you know, giving the green light to start going into places of worship to conduct these types of enforcement actions. That this violates both the First Amendment, this right to association, and also the Religious Freedom Restoration act, which is a congressionally passed statute that says government cannot take actions so burden religious rights without a really really compelling reason to do so. And here there's no really, really compelling reason to do so. There are many, many less restrictive ways to enforce immigration priorities than substantially burdening the sincerely held religious beliefs of so many members of these different faith based denominations. And so, so this is one where we have filed the complaint this morning. ICAP represents these many different denominations and we will be following that with a motion for a preliminary injunction. To get back to our discussion about sort of procedure here and Mary, where.
- [57:19]
Andrew Weissman
Have you filed the case?
- [57:20]
Customer Testimonial
This is filed in the District of Columbia, the federal district court there, because the plaintiffs are all over the country with their places of worship and many also provide services to immigrants as well as other people at their places of worship as part of their faith based mission. And so the defendants of course are, you know, centrally located in D.C. so that is the reason for filing in D.C. much more to come on that as it proceeds through the courts.
- [57:45]
Andrew Weissman
Absolutely. It's a really interesting lawsuit. And thank you so much for having this conversation. I have to say, you know, I hope that our listeners appreciate it, but I have to say you have one listener who appreciates it because it's really great to be able able to synthesize this and try and give a frame to what's going on and then to drill down on individual things. But with that, let me say thank you so much for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts and you can get this show and other MSNBC originals ad free and you also would get subscriber only bonus content.
- [58:24]
Customer Testimonial
To send us a question, you can leave us a voicemail at 917-342-2934 or you can email us at mainjusticequestionsbcuni.com this podcast is produced by Vicki Virgolina. Our Associate producer is Jamaris Perez. Our audio engineer is Katie Lau. Our Head of Audio Production is Bryson Barnes. Aisha Turner is the the Executive Producer for MSNBC Audio.
- [58:53]
Andrew Weissman
Search for Main Justice Wherever you get your podcasts and follow the series.
- [59:13]
USAA Representative
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