Main Justice: "Kafkaesque" (Dec 17, 2025)

Episode Overview

In this episode of Main Justice, hosts Andrew Weissmann and Mary McCord tackle several pressing issues involving the Department of Justice (DOJ) under the new Trump administration. Drawing on their deep experience in federal law enforcement, Weissmann and McCord break down recent legal news, from politically charged prosecutions and judicial pushback to deeply troubling immigration enforcement tactics. The theme of the episode is the tension between brazen, often vindictive government actions and the persistent resilience of the judiciary and the broader rule of law. The hosts discuss the extraordinary nature of recent grand jury refusals to indict, notable judicial rebukes, and a Kafkaesque immigration case, offering incisive legal analysis and commentary on threats to constitutional norms.

Key Discussion Points and Insights

1. Recent Tragedies and Government Response (00:48–06:30)

• The episode opens with reflection on recent acts of violence: mass shootings in the US and Australia, noting the role of hatred and, potentially, ISIS-inspired terrorism.
• Mary McCord (01:45): Emphasizes the appalling frequency of repeat victims of school shootings, lamenting that this is “just a fact and statistic in America that it should appall everyone.”
• Andrew Weissmann (02:41): Recalls President Obama’s frustration over Congress’s inability to enact sensible gun reforms: “There is no bottom.” (03:31)
• Both criticize the President’s callous and coarse response to tragedy, warning against the normalization and politicization of empathy failures.
• Mary McCord (03:56–06:30): Urges balance in discussions of terrorism, cautioning against overlooking the continued threat from foreign terrorist organizations like ISIS amidst the domestic terrorism focus.

2. The State of Political Prosecutions – Letitia James and James Comey Cases (06:30–14:46)

Repeated Grand Jury Presentations

• Andrew Weissmann (09:14–10:02): Highlights the exceptional rarity of grand juries refusing to indict even once, let alone twice, observing: “It doesn't happen. If it doesn't happen once, it really doesn't happen twice in the same case.”
• Mary McCord (10:21): Shares DOJ data: Out of “130,000 presentations, maybe like six no bills,” yet recent protester and James cases have seen multiple refusals, an “extraordinary” phenomenon.

DOJ Rules and Vindictive Prosecution

• Discussion of the DOJ’s internal guidance that prosecutors only proceed when there is a genuine prospect of conviction and the impropriety of continuing to present failed cases.
• Weissmann (11:28): “You’re not supposed to charge a case if you don’t have a lively prospect that you’re going to be able to win at trial.”
• Both express concern about vindictive motivations—DOJ is “grand jury shopping”—and warn of embarrassment and further stains on the Department’s reputation.

Notable Quotes

• Mary McCord (13:10): “It's a stain.”
• Weissmann (13:11): On accountability: “They don’t view life that way. The stain is going to be on the judge who does this, because… it’s going to be a rogue left wing judge.”

Geographic Anomalies in Prosecution

• The bizarre circumstances—Missouri prosecutors presenting to grand juries in Virginia, after Virginia prosecutors declined—are flagged as signs of “grand jury shopping.” (14:07–14:46)

3. Judicial Oversight and the James Comey Search Warrant Case (14:50–22:43)

Fourth Amendment Violations

• Andrew Weissmann (16:30–17:55): Explains the problematic search and seizure of Dan Richmond’s electronic devices: the government searched through vast personal data years after initial seizure, without new warrants, in pursuit of evidence against James Comey.
• Mary McCord (17:55–19:29): Lays out the legal primer: Evidence was seized for one investigation but later used without further judicial authorization, breaching basic constitutional principles.
• The judge in the case ordered the government to return Richmond’s data, allowing the government to keep a sealed copy in court pending new proceedings—a rare rebuke of government misconduct.

Memorable Quote

• Weissmann (22:39): “Callous disregard is something that she found… this material after being told essentially—”

4. Congressional Subpoena for Jack Smith & Transparency Battle (25:01–33:50)

Jack Smith’s Closed vs. Open Testimony

• Smith (former Special Counsel) is subpoenaed by Congress’ House Judiciary Committee, headed by Jim Jordan.
• Weissmann (26:02): “He wrote to them saying, yeah, but I don’t want it to be behind closed doors, I want it to be public.”
• Smith, like other former officials, is denied access to relevant documents for testimony, which both hosts critique as unfair and politicized.

Push for Public Release of Special Counsel Report

• Democrats and advocacy groups demand release of Special Counsel Volume Two (the Mar-a-Lago probe), which remains suppressed by Judge Cannon even after dismissal of all criminal cases.
• Mary McCord (30:03): “Your predecessor publicly released every other special counsel report... but Volume Two is still secret.”
• The 11th Circuit pressures Judge Cannon to end the long delay, highlighting judicial partisanship.

Notable Quotes

• Weissmann (28:28): “If you think he manufactured the whole case, then, you know, it’s like put up or shut up. What are you afraid of?”
• McCord (33:12): On Judge Cannon: “It’s just so beyond the pale.”

5. The Kafkaesque Immigration Case: Kilimar Abrego Garcia (33:56–44:54)

Government Misconduct and Judicial Rebuke

• The government mistakenly deports Garcia to El Salvador despite a court order, then continually blocks his voluntary departure to Costa Rica, despite the latter’s clear invitation.
• Government repeatedly claims agreements to remove him to Uganda, Eswatini, Ghana, and Liberia—none of which actually consented. Each time, government filings are revealed to be deceptive.
• Weissmann (37:31): “Kafkaesque is charitable because the element of cruelty is there… It's retributive.”
• Mary McCord (38:25): “They just made it up?”
• After a government affidavit is proven false, Costa Rica’s minister reaffirms, “offered to grant Abrego Garcia residence and refugee status is and always has been… unconditional.” (42:02)
• Even when a judge orders Garcia’s release (for lack of order of removal), the DOJ and ICE immediately try to detain him under a new pretext—illustrating endless, punitive government obstruction.

Memorable Quotes

• Weissmann (36:07): “He is willing to leave and the country is willing to take him. And this is the vindictive, spiteful nature. The government keeps on saying, nope, we’re going to send him somewhere else.”
• McCord (44:26): “Every time Abrego Garcia prevails in court, the government comes up with something else.”

Overarching Themes

• The hosts underscore that cruelty and refusal to admit error have become features, not bugs, of current DOJ immigration enforcement, with the courts now acting as the only bulwark.

6. National Guard Deployments and Federal Encroachment on States (46:52–59:37)

Judge Breyer’s Rebuke

• Judge Breyer rules that federalized National Guard deployments in California and their use as a “floating military force” in other states have exceeded lawful authority.
• Mary McCord (49:55): Reads from Judge Breyer’s opinion: “The founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one.”
• The hosts note Judge Breyer’s sharp language and ongoing resistance from the Ninth Circuit.

Judge Bybee’s States' Rights Stand

• Judge Bybee issues a rare statement flagging a constitutional argument: that Article IV, Section 4 (the Guarantee Clause) requires state consent for deployments unless facing foreign invasion or insurrection.
• Weissmann (55:51): “This is very much a state's rights view, saying, like, this military power has to be subordinate to this domestic clause.”
• Discussion of historical context and implications for federal-state balance of power, with Bybee’s position contrasted by a counterstatement from Judge Tung arguing for maximum executive deference.

Notable Quotes

• Weissmann (54:45): “It is no easy thing to establish a republican military powerful enough to protect against foreign enemies and domestic insurrections without creating the danger… that the man on the white horse will seize the reins of power.”
• McCord (59:37): Paraphrasing Judge Tung: “Judge Bybee’s work, mountainous as it is, does nothing to refute the principle… that Congress assigned the president the power… when he determines he’s unable to execute federal laws.”

Notable Quotes

• Weissmann (03:32): “At some point, that just has to stop and there has to be a reckoning because this is one… any sort of sense of empathy, just being empathic about what happened.”
• McCord (10:21): “It's really extraordinary… Out of like 130,000 presentations, maybe like six no bills. Well, we've had more than six, I think, in the last month…”
• Weissmann (37:31): “[Kafkaesque] is charitable because the element of cruelty is there. It’s kafkaesque and catch 22 and add in it’s retributive.”
• Breyer (quoted by McCord, 49:55): “The founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one.”

Timestamps for Key Segments

• School Shooting and Antisemitic Attack Discussion: 00:48–06:30
• Letitia James and Grand Jury Indictment Failures: 06:30–14:46
• James Comey/ Dan Richmond Search Warrant Case: 14:50–22:43
• Jack Smith Testimony and Special Counsel Report Suppression: 25:01–33:50
• Kilimar Abrego Garcia “Kafkaesque” Immigration Case: 33:56–44:54
• National Guard Deployments, Judge Breyer and Judge Bybee Opinions: 46:52–59:37

Tone and Concluding Thoughts

The tone throughout is at times incredulous, weary, and deeply concerned, but with moments of hope as the judiciary pushes back. Weissmann and McCord bring righteous anger to the DOJ's excesses, but also point out the resilience and principle shown by judges, grand juries, and defense lawyers. The episode closes on a cautionary but optimistic note: the rule of law is under siege—but not defeated.

For Further Reading/Listening

• Link to referenced judicial opinions (provided in the show's notes)
• UCL YouTube interview with Jack Smith (as discussed at 25:01)
• Supreme Court and appellate dockets for referenced National Guard deployment cases

This summary distills the urgency, legal principles, and personal reactions of the hosts, providing a comprehensive snapshot for anyone seeking to understand the latest legal battles inside Trump’s DOJ and the bulwarks of democracy still holding firm.