Kafkaesque

Summary

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.

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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.

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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)

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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—”

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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.”

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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.

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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.”

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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.”

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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

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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.

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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

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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.

Transcript

[A]

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[A]

Hello, and welcome to Main Justice. It is Tuesday morning, December 16th. Wow. Time, like, ridiculously flies.

[B]

It does.

[A]

I'm Andrew Weissman and that was my co host, Mary McCord. Mary, good morning. Good morning. We had spent a lot of time because there's so much to cover, but then the weekend happened and so why don't we take a few moments Just because it was. I mean, it's just terrific. On the east coast of the United States, on the west coast of the United States, overseas, Pacific. Yeah. And also what these horrendous, awful, senseless murders have in common is just enormous hatred as a motive. And there seems to be some kind of vendetta. Obviously we're hearing with respect to Mr. And Mrs. Reiner may be of a different category.

[B]

This might be different.

[A]

Yeah.

[B]

And I certainly don't want to play into the social media posting by the president about the motivation there when he has no idea. That obviously has something to do with inter family. Super tragic. But, you know, looking to Brown University, as of the moment that we're recording, they still do not have someone identified. They are looking for the person who committed the shooting during a study session at Brown University, killing two students, wounding a number of others. That's another school shooting that has, of course, terrorized students. Exams have been canceled. And I'm sure you've seen this as well, Andrew. But two of the students impacted by the shooting had already survived high school shootings. One of them herself had been shot in a high school shooting. That is just a fact and statistic in America that it should appall everyone.

[A]

I did see that your heart goes out to them because it's such a scarring experience. Once, as one of the students said, I thought my salvation would be statistically, what are the odds of this happening to me again? It's like, in other words, it's happened once. So I'm sort of done. And, you know, I remember when President Obama used to just get so infuriated because there's so many things that we could do to lessen the number of guns in this country. I mean, that's. When you're in government or you're in a policymaker, everything's about lessening the risk. As to your reference to the President of the United States, I just kept on thinking in his first comments that it's a continuation of. There is no bottom.

[B]

Yeah.

[A]

That to the extent the message is, the coarseness, the callousness, and this sort of, if there's a rule, I break it, at some point, that just has to stop and there has to be a reckoning because this is one as a human, any sort of sense of empathy, just being empathic about what happened. Yeah.

[B]

And just, you know, before we move on, I also think it's important when we talk about the apparently shooting motivated by antisemitism in Australia, killing 15 people, that there is some new reporting and more work will need to be done here. That this may have been also in part inspired by isis. And so, you know, we'll see if that really turns out. But I think it's worth noting, we cannot forget about the foreign terrorist organizations who have been responsible for so much death for so many terrorist attacks over decades and decades. Right. Al Qaeda for years and years, of course, 9, 11. But then, you know, beyond that, ISIS, you know, I think people tend to think, oh, they don't have a caliphate anymore. They don't really have physical territory in Syria anymore. But they are still a force and they are still inspiring attacks. And I think that's particularly important to keep in mind when we have so much rhetoric right now in the United States about domestic terrorism, which is an issue. I'm not saying it's not. And putting labels on different people and organizations and calling them domestic terrorists, like, let's not lose sight of the foreign terrorist organizations that have been responsible for so many murders, so many terrorist attacks. And there's at least early indications that might have been part of the inspiration for this violent attack. So much to think about there, but we will be starting today someplace else, which is the latest in sort of the political retribution. The failure, what now seems like a year ago, but the failure to re indict New York Attorney General Letitia James again, a ruling that will limit what evidence could be used in the case against James Comey if the government seeks to re bring that case. They have not done that yet we also want to flag that Jack Smith is appearing for a closed door deposition tomorrow before the House Judiciary Committee. And we will talk a little bit about how he wanted to do this in an open public hearing. They said no and subpoenaed him. So he has to go or they will refer him, I'm sure for criminal prosecution. But this should be an open hearing. This should be transparent. This should be something that we can all watch and listen to. Then we will move on to some of the important things happening in the immigration context, including a judge's opinion and order releasing Kilmar Abrego Garcia. And I have to tell you, this is the most Kafkaesque thing I think I have seen. And we've seen a lot of Kafka esque things this year, if you notice.

[A]

Mary, I'm, I'm resisting.

[B]

Yes.

[A]

Talking about this because I'm going to get too triggered. Totally. So I'm going to, I'm going to save that.

[B]

Oh my God, it's so incredible.

[A]

Let me just say this. When I was preparing for the podcast, we will put in the show notes a link to the decision because for people listening to this, I cannot recommend more the recitation of the facts by the judge as to the government's position. But I'm not going to get triggered. I'm just going to say you should read it. I'll get triggered later.

[B]

It's like the law almost is irrelevant because the facts are just so unbelievable what the government is representing in that case and then having to retract over and over and over again. And then finally we will move out to the west coast to talk about Judge Breyer's opinion last week. That's Judge Breyer, not the former Justice Breyer who has had the case involving the National Guard deployments ever since they were first deployed. But this was on a new motion for a renewed preliminary injunction saying there's no longer anything happening that justifies this. And he agreed. And the Ninth Circuit refused to stay that on Friday night. And so right now we, as of yesterday, the National Guard was having to stop deploying in Los Angeles. And there's some other things we're going to try to talk about if we can fit them in, but it is really just jam packed. So should we start?

[A]

Yes. You know, I was thinking as when we were preparing for this and then listening to your litany, the overview is as depraved and as outrageous and at times how deceptive the government has been. So that's like the bad news.

[B]

Yes.

[A]

In Some ways this is in case people think it's going to just be a downer. It's not, because there are just signs of real life in the judiciary and in the lawyers representing these people. And so we're really going to talk about a number of very favorable rulings or opinions about what's going on. Now, just to be clear, I'm no Pollyanna. We shouldn't be in that situation. Yeah, right. But given where we are, it's really kind of nice. So I have a question for you, because I think everyone who's listening to this, we're going to turn to Letitia James. She was charged once. The grand jury did vote probable cause to indict, but then the judge dismissed it, finding that Lindsey Halligan was improperly appointed. By the way, that is happening around the country. And I think even the Justice Department's sort of getting the message because all sorts of people are out.

[B]

I mean, one just left on her own saying, you know what? I see the writing on the wall and I don't want my appointment to become political, so I'm leaving.

[A]

Yeah, exactly. And that's sort of step one with Letitia James. But then they tried to indict not once, but twice, marry. For a long time, people were saying, oh, it's really, really, really rare to get at what's called a no true bill. That is when the grand jury can't come up with a majority of people in the grand jury to vote just based on probable cause. So very low standard. It's much lower than, obviously, a trial because it's all about holding the person for trial. Have you ever in your life, let's leave the first one aside, because it's not really the grand jury voting not.

[B]

To charge on the two efforts, dismissal of refusal to indict.

[A]

I have never heard of that. I mean, certainly I've never experienced a no true bill personally.

[B]

Nor have I. I've never.

[A]

I mean, by the way, that's not Mary and me fatting ourselves in the back. It's like it doesn't happen. But I mean, if it doesn't happen once, let me just say it really doesn't happen twice in the same case.

[B]

Right. And in fact, there's some data I read out of, and I can't remember which year this was. Out of like 130,000 presentations, there were maybe like six no bills. Well, we've had more than six, I think, in the last, you know, month between this and, like, various protesters that the government is charging and the grand jury is Refusing to indict. It's really extraordinary. And part of the reason that it doesn't happen, people will say, well, that's because there's no defense attorney present. That's true. So there's no ability to cross examine witnesses. That's true. It's just the prosecutor presenting the witnesses. And the witnesses can testify about hearsay, which they aren't able to do at trial. There's not technically a constitutional, or at least the Supreme Court hasn't ruled a constitutional obligation to explain to the grand jury any exculpatory evidence or evidence which suggests the person's not guilty. However, I will say, because I keep reading this in newspapers, there's no obligation to do that. I will say Department of Justice guidance has always been that if you do know of exculpatory information at the time you present to the grand jury, you do need to marry it to the.

[A]

There's another rule that you're supposed to follow, which is that 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.

[B]

I'm talking about historically.

[A]

Yeah. So historically, these rules would prevent this. Just so everyone knows, there's no such thing as double jeopardy in the federal grand jury system. So if you try to indict and they say no to the government, the government can go back. Typically, they would go back when they have more evidence. Even if you don't have more evidence, you can technically go back. It's just that being a good prosecutor and having some sense of decency and responsibility as well as what's the point? If the point is to be vindictive because you want to just subject them to the charge and ignore the DOJ rule, then that's why you would do it. But this is one where I can imagine, like, the conversations that are going on now, which is, oh, let's try and do it a third time. Forget about the rules. Forget about the fact that DOJ internal rules would say no. That. Forget about the fact that it seems beyond unlikely that this would ever get to trial. Because all of this effort that's going on is just more fodder for Letitia James's motion for vindictive prosecution if they.

[B]

Ever get a grand jury to indict. Yes.

[A]

Yeah, yeah, yeah, exactly. I'm going to be. I won't say impressed, but it'll be a sign of some rationality. I mean, low bar here. If Pam Bondi and Todd Blanche are able to say, you know what? We're done. It's done.

[B]

I think. Yeah, I agree.

[A]

Because it violates the rules. The judge is going to dismiss this. It's going to be embarrassing. And it's a stain.

[B]

It's a stain.

[A]

Exactly. Now, to be clear, they don't view life that way. I mean, they're just going to blame. The stain is going to be on the judge who does this. Because no matter who appointed the judge, it's going to be a rogue left wing judge.

[B]

And remember, they could appeal that dismissal, and they still have not done that.

[A]

I think they dismissed the Lindsey Halligan. Yeah.

[B]

The order that dismissed both the James and the Comey cases on the grounds that Lindsey Halligan had been unlawfully appointed. They could have appealed that and. Right. If that were to get reversed, then those indictments would stand. But I think they thought it would be easier to re indict at least Letitia James, not James Comey, for reasons we're gonna talk about in a moment. But one of the things here just before we move on is the original indictment was in the Alexandria office of the Eastern District of Virginia. After that case got dismissed, they brought in a Missouri prosecutor and they presented it down in the Norfolk office of Eastern.

[A]

I'm sorry, Mary, did you say Missouri? I'm sorry, is that a new branch of the Eastern District of Virginia?

[B]

You know, it spans sort of half the country to reach there into the Midwest to get that Eastern district.

[A]

And if I remember, if memory serves, I'm old enough to remember that the prosecutors on the case after the Eastern District of Virginia prosecutors were like, no masks. I'm not going forward. They had to bring them also another district down south. So first they get two people from North Carolina. Now they're going to Missouri.

[B]

Missouri. And they went and presented it to a different grand jury. That grand jury. No. Build it. And then the most recent. No, bill. They went back up to Alexandria and represented it there. We would call this grand jury shopping, maybe.

[A]

Exactly. We've been doing this a long time. It's no longer jury shopping. It's grand jury shopping. Grand jury shopping. This is the thing. You don't need to grand jury shop because you usually have the goods, Right? That's right. Because you're not going to be bringing a case unless you think you can win a trial. You know, I think we're getting. Or at least I'm getting exercised because it's such proof of the vindictiveness. The vindictiveness. And how off the rails the Department of Justice is the rule of laws. So, speaking of which, there is a really interesting decision, and it's complicated because you kind of really need to know the Fourth Amendment. But Judge Culler Telly in D.C. not in D.C. exactly, was deciding a motion that relates to the James Comey case, but not directly. And that. Here's what happened. Dan Richmond is the friend and sometime lawyer for James Comey. He also was law professor at Columbia University and he also worked for a time for James Comey when he was at the FBI. And he features as the person who is alleged in the now defunct Comey indictment as the person who allegedly had been leaked information by Comey and then was tasked by Comey to leak that to the press. So that, of course, that indictment doesn't exist anymore. But Dan Richmond has made a motion for the return of his property. And there's a rule, Rule 41, that allows somebody when the government comes and takes property to get your property returned. So you know who also has made a return of property motion? Our current president, Donald J. Trump. When there was the Mar A Lago search. And by the way, Judge Cola Crotelli, in a wonderful site, cites that case everyone will remember, may seem like it's in the Pleistocene years, but that Donald Trump made a motion to have his property returned claiming that the classified documents that were found in Mar A Lago pursuant to a court ordered search were his documents and he wants them back. And that led to a lot of litigation. But there it was pursuant to a court search warrant. That's the critical difference. And here Judge Cullercatelli has a whole sort of Rube Goldberg series of facts that she lays out, because initially there was a search warrant and the government did seize a whole bunch of electronic data from emails and iPads and laptops and phones. And that was in 2019, I believe, in connection with investigation one. Then that investigation closes and there's another investigation, investigation two, and the government still is holding on to that.

[B]

Yeah, this whole cache of everything from his personal devices for multiple years. Right. So that would include personal photographs and family stuff. It's not just his emails with James Comey.

[A]

Exactly. Everything has been seized. Like your entire. Imagine if you just had your phone and your laptop, your digital life, it is your copies of your digital life. And it's not unusual, by the way, for the government to hold evidence for a while. What is unusual was step three. So in September of 2025, as James Comey and Dan Richmond pointed, as the statute of limitations is running on the James Comey indictment, agents just go ahead and go back into the stuff that was seized in 2019 pursuant to a search warrant. And without getting a new search warrant, they just go ahead and look for things, rummage about that they're not allowed to look. I'm just going to give a quick little primer that I tell to my Fourth Amendment students. A judge issues a search warrant that says you can see something, and it tells you that you can look for items A, B and C. Well, that means, guess what? You can't look for item D. And what I used to say is, you can't look for an elephant in a drawer. So if they say that you could look for things that could be in a drawer, you can't start rummaging your ground looking for an elephant. And so In September of 2025, they are still not only holding this vast, vast amount of stuff, but the real critical issue for Judge Colicatelli is without getting a search warrant, they just go around and traipse through looking for things that only not in the first set of search warrants, but then reveal all sorts of personal information and allegedly attorney client privilege information.

[B]

Yes.

[A]

And by the way, one of my OGC lawyers, one of the FBI lawyers, is recounted by the judge, said that.

[B]

Yes.

[A]

And wait a second, for those who.

[B]

Didn'T know, OGC Office of General Counsel. Yes, told them that. And people will remember, this discussion that we're having now is going to be like, wait a minute, haven't I heard this before? Because back when the magistrate judge who was ruling on motion in the Comey case issued his report and recommendation for the trial court judge saying, there's some problems here with the use of this information from Dan Richmond's digital files in order to indict James Comey when it appears that there had been no second search warrant for that purpose and things had been used without filtering for attorney client privilege, without giving Dan Richmond a chance to object. And that's what really motivated Dan Richmond going in to say the reason he went to D.C. is because that's where the original search warrant seizing his property had been issued from. And said, hey, hey, what about me? And I think what's interesting here, ultimately, is what the judge did right? She said, what's the remedy here? You know, under the Federal Rules of Criminal procedure and my equitable authority, I'm going to order the government to return the copy of the files right to their rightful owner, Dan Richmond. But she says, I will allow the government to make a complete electronic copy of those materials, deposit that copy under seal with the US District Court for the Eastern District of Virginia. Right. The court where the Comey case was brought. And then she says the district court for the Eastern District of Virginia may then exercise its discretion whether to allow petitioner Richmond, Dan Richmond, an opportunity to move to quash any warrant that the government may now look to try to get to now use those files, give him a chance to move the court to quash that before it's executed. So this isn't necessarily the end of things, but the government has certainly protested, suggested that, you know, we need that information for the case that we may try to re bring against James Comey.

[A]

It's because of a quirk in the Fourth Amendment law, which is, according to the judge Dan Richmond's rights have been violated. But he might be able to say, don't use the evidence that you found as to me if you were ever to prosecute me because my rights were violated. But the Fourth Amendment is individual specific, so you're not allowed to say because my rights were violated. You can't use that evidence against someone else. It's definitely not even a quirk. It's a real feature of the Supreme Court's view of how they interpret the Fourth Amendment. So I thought the judge did a great job of sort of parsing out and being really fair to the government in terms of how it might use the evidence, at least with respect to the state of the current law, which is bound by, but also I thought, reach the right decision with respect to Dan Richmond. And again, in part because one of the key factors here, it's maybe a good point to end on, is that one of the factors in deciding what the remedy is is whether there was callous disregard. That's the term.

[B]

Right?

[A]

Callous disregard is something that she found and this material after being told essentially. So should we take a break and then come back and quickly talk about Jack and sort of why things should be public in our view?

[B]

Yes. And I think to refresh people on volume two of the special counsel's report that has never been released publicly and has been pending a motion for that in front of Judge Cannon for getting close to a year. So we'll talk about that.

[A]

And that volume two is the part dealing with the Mar A Lago case. So good connection to what we just talked about. Okay, let's take a break, come back. Why did we build the first American nuclear plant in 30 years? Because we're leading the way to secure American energy dominance. And why announce over $70 billion in energy infrastructure investments to keep meeting America's energy Demand win the AI race. And because our 9 million customers deserve affordable, reliable energy to power their homes and businesses, at Southern Company, the investments we make today are powering America's energy future. Taxes was feeling unwelcome. Now taxes is an open door, literally.

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[A]

So Mary Jack Smith, who I interviewed at the University College London at the Faculty of Laws. And you can get it on YouTube because UCL University College London put it out on its YouTube. And the reason this is relevant is people couldn't get a measure of the man. I've talked about this in the past, about how I think it's so important for people to be speaking because they can be exhibits with respect to who they are and the way that Archibald Cox was when he did this in the Watergate case. And so the Congress has asked to speak to all sorts of people, in fact, serving subpoenas on them, including lots of former attorneys general which they've withdrawn, including the former President Clinton and the Secretary of State Clinton. Not withdrawn. They're being treated very, very differently than everyone else, especially with respect to Hillary Clinton. That's all about the Epstein stuff. And it's like, what does Hillary Clinton know about that? There's not even a remote allegation about it.

[B]

It.

[A]

And so now you have this subpoena for Jack Smith and he wrote to them saying, yeah, but I don't want it to be behind closed doors, I want it to be public. And he said some other things, which is like, also, I don't have any of the documents. Like, I'd like to see it. And I don't know if that's gone anymore.

[B]

And he doesn't have them now because. Right. Once he left government service, just like once I left. Just like once you left, you don't get to take your stuff with you. It stays back in your old office, and you're sitting there like, boy, I wish I had that now, because it would sure be handy.

[A]

Yeah, I wrote a book. And when I wrote my book, I was like, gee, it would have been nice to have documents. But I didn't have any. Because unlike somebody who might take documents to Mar A Lago.

[B]

That's right. Those were not my property.

[A]

I don't do those. It's right. Those are government documents. And so you don't take them. And so why should this be public?

[B]

But having said that, typically when somebody is subpoenaed to testify, whether it's before Congress or to get interviewed by an inspector general or, you know, even with respect to some other investigation, oftentimes times the body that is requesting this will say, here are the documents we have that you can also look at to prepare for your testimony, because then they figure you'll be better prepared as well. Right. It's not supposed to be gotcha. It's supposed to be. Yeah, I'm talking about the world as it supposed to be, not the world that it is, but, you know, it's not supposed to be Gotcha. And so here, like you said, Jeff Smith asked for those, and they said no. Jim Jordan is the head of the House Judiciary Committee. You know, he has called this whole oversight investigation his committee has undertaken as an investigation into Jack Smith's team's, quote, partisan and politically motivated prosecutions of President Donald J. Trump and his co defendants. Judiciary Committee Democrats have written to the Attorney General, they've put out a press statement, and they've filed an amicus brief in a case I'm going to talk about here, all saying, among other things, you know, if we're going to be undertaking this investigation, Volume two of Jack Smith's report needs to be made public. This is the volume. Like you said, about the Mar A Lago investigation, volume one was about the January 6th investigation that was made public with certain redactions. And here we're talking about redactions, too. Remember, that investigation involved mishandling of classified documents. So there are things that would almost certainly need to be redacted. But it also involved obstruction of the investigation. Right. Multiple counts of obstructive behavior.

[A]

Right, exactly. The president was charged not once but twice with obstruction of justice. Now, now there are charges, as everyone knows, it never went to trial. But if there is Public testimony that's called for by Congress, then Jack Smith would get to lay out why he did what he did. And so to me, it's like, you know, what, what are you afraid of? What is Congress afraid of? That he's going to look credible. Well, then that's who he is. I mean, like, you know, have your best shot at him in terms if you think he did something wrong, if you think that, that he made a judgment that you think is wrong, if you think he manufactured the whole case, then, you know, it's like put up or shut up. Like, what are you afraid of? And so if you're just doing this because you want to behind the scenes, have a risk free effort to see if you can get some misstep on his part and then leak that piece, that would be why you might do this. But if your claim is he did something wrong, then, and there's absolutely no legitimate reason not to make this public, this is not investigatory. In other words, this isn't something where you're concerned about, you know, what is he going to be more willing to speak because it's a private setting? Is this something where you want to learn something and then take steps that not make it public? There are reasons for a private investigation, usually not in Congress that much, usually more in the government and at doj. But this is not that situation. It'll be interesting to see whether Jack issues some sort of statement or makes some sort of statement afterwards in light of what's going on.

[B]

On your point about what are they afraid of? I mean, one of the things that the Democrats on the House Judiciary Committee have said in their letter to the Attorney General is that your predecessor publicly released every other special counsel report completed during his tenure. Right. Special Counselor Robert Herr's report on President Biden, Special Counsel David Weiss's report on Hunter Biden, Special Counsel John Durham's report on the origins of the FBI's investigation into the links between Russian officials and President Trump's 2016 campaign, and volume one of special counsel's report. But just before we move on to take a deep look back almost a year ago, January 21st, remember, after Trump was elected, Jack Smith dismissed the case, the Mar A Lago case against him. Well, the case had already been dismissed by Judge Aileen Cannon on the grounds that Jack Smith was not properly appointed. The government. Jack Smith had taken an appeal of that dismissal. Jack Smith, after President Trump was elected, dismissed that appeal. Just saying, okay, we know we can't prosecute a sitting president. But before the appeal Was dismissed as to the other two co defendants, Walt Nada and Carlos de Oliveira. Before that, Judge Cannon issued an order barring the release of the volume two because there was still a pending case on the subject matter of volume two against these two defendants. Right. And at that time, January 21st, she ordered that there be no disclosure, even redacted, even to members of Congress, and said, but provide me a status report 30 days after a full conclusion of all appellate proceedings and other proceedings when there's nothing left right. Of the case. Sure enough, February 11, the government dismisses the appeal as to Nauta and Oliveira, which means there is no criminal case left. They file the status report on that meanwhile income, two organizations, American oversight and the Knight First Amendment Institute, in later in February. And they say we are seeking under the first Amendment the release of the special counsel's report. They filed this February 11th and February 14th. In July, they provide a notice. Hey, Judge Cannon. Our motion has been pending for 90 days. Crickets, crickets. Finally, this fall, they go up to the 11th Circuit with the mandamus petition saying, judge Cannon's been sitting on this motion now since February with no action taken at all. And I went and looked at the docket last night like nothing. Nothing other than admitting attorneys and stuff like that. So what does the 11th Circuit do? 11th Circuit, November 3, issues a ruling saying, we're going to hold the petition for these writs of mandamus in abeyance for 60 days to allow the district court to fully resolve the motions. It talks about the undue delay in resolving this motion. So basically, it's like we're giving you 60 days to avoid us mandamus ing.

[A]

You to get your together.

[B]

Exactly. And so that would be like January 3rd or 4th would be 60 days. And so we are getting right there.

[A]

So, Mary, this is like one more exhibit to Judge Cannon's partisanship.

[B]

Yes.

[A]

I mean, it's just so beyond the pale.

[B]

It is.

[A]

And judges sometimes take a long time to make decisions. But put this all in context of all the other things she did, it just. I mean, there's a reason that the 11th Circuit, which, by the way, the 11th Circuit is not a bunch of rogue liberal judges, activist judges, it is a pretty conservative circuit, like the 5th Circuit. They reversed Judge Cannon not once, but twice in a fairly scathing way. I think at the time I said, if it were I were a district court judge, I'm not sure I would get out of a curled up fetal position in the morning to go to work. They were so scathing. While I'm getting myself worked up.

[B]

Yes.

[A]

Shall we turn to Kilimar Abrego Garcia?

[B]

Honestly, for me, this is one of the lowest I've ever seen the Department of Justice stoop. I mean, this case just. It started out horrible when the government made this horrible mistake and put him on that plane on March 15 and shipped him to a terrorist detention center in El Salvador by mistake. And rather than just admit its mistake and fix this, they have done, done every possible thing in their power to torment this man, right?

[A]

So they violated the court order to not take him. They didn't have a court order to seize him. They didn't have a court order to send him out of the country. They didn't have a court order once he's out of the country to put him in a prison.

[B]

They didn't even have an order of removal at all. And they had an order saying you can't send him to El Salvador. That's what they had. Had an order saying you can't send him the very place he sent. Then when they bring him back, remember, they bring him back only to face criminal charges. In Tennessee. We go through all that for some.

[A]

Time and the judge there has found probable cause or reasonable basis for the Kilmar Bago Garcia's counsel to get discovery on vindictive and selective prosecution. So that's not a good sign. And the judge there also was like, you know what? What, I don't see a lot of proof here and reason to detain him. He can be released. So the judge in Maryland is now dealing with should Kamara Brago Garcia be detained in the immigration proceeding? And the upshot is she says, no.

[B]

But he had been detained the whole time. Just let me fill that gap between Tennessee. When the judge in Tennessee in the criminal case says, I'm not going to hold you in detention on this criminal case, he sends them back to Maryland to take up whatever situation is happening in his immigration case. He is then detained there, supposedly pending his removal. And that's when it gets even frickin weirder, uglier.

[A]

Because this is why you have to read this for yourself. He says, Mr. Abrego Garcia says through counsel to the court, I am willing to go to country A, Costa Rica.

[B]

Costa Rica, which has said, we are happy to receive him as a refugee.

[A]

Yes, 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. And by the way, that somewhere Else has agreed. Oh, did we say agreed? Because they haven't agreed. So then we find place B another country which still is not Costa Rica. Because they've agreed. Nope, they haven't agreed. And they keep on like doing this over and over. This is what I don't get. This is the Department of Justice. If your goal is to remove him from this country, if that's what you want to do, and he is saying I want to be removed. What your interest is that I only want to remove him if I can put him in a location that he doesn't want to go. I mean it's like it is extracting the pound of flesh. And here it bit them in the derriere and it bit them there. Because the judge goes, you know what? There is no legitimate interest that immigration authorities have when he's willing to leave. And your interest should be deporting instead you are not deporting. When you could deport. Kafkas is charitable because the element of cruelty.

[B]

Yeah.

[A]

Is there. It's kafkas and catch 22 and add in it's retributive. You can just imagine somebody in the White House just going, I'm not doing that. And without any sense of propriety.

[B]

So let me just spell out this a little bit because you gave a good overview. But I think some of the details here are why I think this is such an ugly low point. Because the first place they said that they were going to send Mr. Abrego Garcia was Uganda. And then it turns out, like you said, Uganda says no, we are not willing to take them. He's saying, by the way, Costa Rica is willing to take me. He's got an actual like diplomatic note from Costa Rica saying yes, we will receive him. So next we hear, just a few days after the Uganda falls apart, the government says we're going to send him to Eswatini.

[A]

I'm sorry, where?

[B]

Yes. People are probably like, let me get out my Google Maps and find Eswatini.

[A]

By the way, it's not a place that Abrego Garcia has any connection to.

[B]

None of these places are. So they give notice to Abrego Garcia. This is what they're going to do. And right after that, as soon as this becomes public, Eswatini's spokesperson says, quote, the government of Eswatini has not received any communications regarding this person and they had no agreement to accept him. So what, the DOJ and DHS just made it up?

[A]

Mary, I was so struck by the incompetence of this and the deceptiveness but also, like, it's so incompetent because, like, if you're going to be this mean and vindictive, like, how about calling up the country? And it's not like we don't have the ability to pressure companies, C E G. El Salvador. And the way we got them to take all these people and seek out the prison there.

[B]

Yeah, no, it's unbelievable. So, you know, meanwhile, Grego Garcia is like, I need a hearing. I need a hearing. I need a hearing. So right before the next hearing, literally the night before, the government notifies Abrego Garcia's council. Now we're going to remove you to yet a third African country, this one, Ghana. But once this became public, the Ghanaian foreign minister immediately announced, ghana is not accepting Abrego Garcia. He cannot be deported to Ghana. And says that this position has been directly and unambiguously conveyed to US Authorities. What the heck? I mean, I'm sitting here reading this going, I cannot believe this. Meanwhile, again, Costa Rica, I'm happy to go, but no, no, no, that's not good enough. After this, a few more days go by and the next thing you get is the government saying, we are now removing Abrego Garcia to Liberia because it is the only state willing to accept him. And they actually put in their filing that Costa Rica, quote, does not wish to receive, unquote, Abrego Garcia any longer and quote, would not simply accept Abrego Garcia. So it's like, huh, what happened there, Liberia? Well, what happens? They put a declaration with this filing of the acting Assistant Director for Ice Removal Division, Joseph Cantu, and they file it under seal so we can't read it, which is so weird. Why is that under seal? And yet apparently it is supposedly where Mr. Cantu says, Costa Rica is no longer willing to accept Abrego Garcia. But turns out when the court says, let's have a hearing, let's have Mr. Cantu here to testify, he says, well, I had no prior involvement in Abrego Garcia's case. I've spent only about five minutes preparing to testify. And nobody of the government's attorneys have ever discussed the court's order with him or showed him its contents. He didn't know the purpose of his testimony and he couldn't answer any questions. When asked about things that were in the declaration that he signed, he says, I don't know anything about these. I don't know what this means. I don't know what it said. I don't know. Was he like in a coma and somebody took his hand and signed his name to the declaration. I don't know. But suffice to say, right after that, within 24 hours, the minister, Zamora Cordero from Costa Rica communicates to multiple news sources that it's offered to grant Abrego Garcia residence and refugee status is and always has been firm, unwavering and unconditional.

[A]

The judge points out over and over again the deception and the flouting of her orders and the fact that she wanted people to show up who had knowledge and they didn't. This is one where you can just recount the facts and your jaw clatters to the ground. It's in the show notes. It really is worth looking at. And it's worth it because these are hard facts. They're found by a judge in. In many of these situations, there's no counter. It's not like the government says, oh, wait, you got it wrong. And so it's devastating.

[B]

And it didn't end there. Last final note on this. She then says, Mr. Abrego Garcia must be released because there's actually in the record, not an actual order of removal ever for him. She orders him released immediately. I says, okay, you got a report tomorrow morning at 8am and his attorneys come in with an emergency motion for a temporary restraining order saying, don't let them put him back in detention. At 8am the judge at 7am Issues an emergency temporary restraining order saying, you can't detain him at 8am we have seen that movie.

[A]

We have seen this movie.

[B]

We have seen this movie.

[A]

There was sworn declaration from Mr. Raveni, the original prosecutor in the Abrego Garcia case, saying that Emile Beauvais had said, there may be a point where we really need to. He used a really vulgar term, tell judges, you know, to blank off. And that seems to be what's going on here. It is in the very case where Ravane said it was going on.

[B]

That's right. And in the final note to this, and it's not over, this is still being litigated. The government's response to that temporary restraining order is, well, you just told us there was no final. And by the way, they went back to the immigration judge from six years ago and got him to then issue a final order and said, now we have a final order. The judge in Maryland rejected that. And then the government says, well, if there was no final order of removal, he can still be detained now because now he is in removal proceedings. And so under different authorities, we can detain him pending a final order of removal. So there's just no winning. Every time Abrego Garcia prevails in court, the government comes up with something else.

[A]

Also. It's so crazy. He's not a risk of flight. I mean, this is.

[B]

He wants to be here.

[A]

He wants to be here. And if he's going to get deported, he's happy to go to Costa Rica. So it's like, this is like it's a solution in search of a problem that's 100%. This is just unbelievable. If somebody presented this to you, Mary, and told you that they had done this, you would be a, how do we fire them? And B, like, this is the worst judgment ever. So, okay, I think we've sufficiently gotten triggered.

[B]

Yes, we definitely have.

[A]

Good time to take a break. Let's come back and talk about the National Guard. And as you mentioned, Judge Breyer, it's one where I'm really interested to know what Mary thinks of it.

[B]

Yep, let's do it.

[A]

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[A]

Mary, let's go to the west coast where there's news with respect to what Judge Breyer ruled. And then I'm going to pose to you the question about Judge Biden so what did Judge Breyer do? He had sort of had this case and he were waiting a ruling about the sort of continued presence and activity of the National Guard in California, and I shouldn't even say in California because it's like in California, but then being sent by the feds to other states that's right over their opposition. I'm talking to you, Chicago, or, you know, wherever, creating like this floating military force. So what did Judge Breyer do?

[B]

So people will remember that he's the first one to ever have case challenging the federalization and deployments of the National Guard, beginning all the way in June when this first happened in la and he'd issued various preliminary injunctions, and some of those had been stayed by the Ninth Circuit pending appeal, which is all still pending. But meanwhile, time marches on, right? And things on the ground change. So even though there are still sort of live appeals of his original early orders that said the authority that the government relied on, 10 United States Code 12406, that the presidents and the government had not actually shown that the predicates for federalizing and deploying the National Guard under those authorities had not shown that that had been met because, for one, there was no rebellion against the authority of the United States. And two, and probably more significantly, because it's been at the heart of all of these cases, the government hadn't shown that the president was unable with the regular forces to enforce United States law.

[A]

And that issue, there's sort of a big issue that's still pending in the Supreme Court growing out of the Chicago case, but it will have ramifications for everywhere in the United States.

[B]

And we talked about that issue before. Does regular forces mean just just federal law enforcement, or does it mean the military? And no one has tried to deploy the military with the exception of a few submarines that were deployed in la, but only to support law enforcement, not to actually engage in law enforcement. So that issue, it's interesting too, an aside on that, I mean, that has been fully briefed in the Supreme Court for weeks now with crickets from them, but they let the injunction remain in Chicago.

[A]

We're going to come back to that because that it's my theory as to why Bibi did what he did. So what did Judge Breyer do?

[B]

Judge Breyer now was asked to rule on a new renewed motion for injunction, saying whatever wanted to happen in June or July or August, we are now at November, December, and there's almost no protest going on, and there's just no reason whatsoever for these national Guard to be deployed here. And he agreed. And he agreed in a way. And we just have to read the first several sentences of his opinion.

[A]

You do not need to be Mary and me, who've worked together now for, you know, years doing this podcast to know that the first paragraph is, you know, the money shot. It is the key.

[B]

So, right. Everybody would have highlighted on their screen. 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. Six months after they first federalized the California National Guard, defendants still retain control of approximately 300 guardsmen despite no evidence that execution of federal law is impeded in any way, let alone significantly. What's more, defendants have sent California Guardsmen into other states, effectively creating a national police force made up of state troops. In response to plaintiff's motion to enjoin this conduct, defendants take the position that. That after a valid initial federalization, all subsequent refederalizations are completely and forever unreviewable by the courts. Defendant's position is contrary to law.

[A]

So this, you know, we told people this is going to be some good news in that you have judges, you have Cola Catelli that we talked about. You have grand jurors, not judges. You have Judge Sinis. Now you have Judge Breyer. I want to quickly turn to Judge Bybee issued sort of this extra opinion, this extra statement, and as he said, it's a little unusual because there had already been an opinion by the en banc court, but he sort of issued. It's almost like revising his views and saying, here's some extra views. I think he did it because of the fact that there's this pending Supreme Court case that you just talked about, and he wants his views out there to be considered by the court because he has a new and interesting point that goes on and on and on forever. But, Mary, I want to know what is his point? I mean, obviously I know the answer to that, but what is he saying on this whole issue that is new and interesting? And what do you think of it?

[B]

I mean, it's not a new. It's a new issue to be flagged in any of the litigation. I will say it's something that my team has looked at for over a year. So when I saw this, I'm like, bing, bing, bing, here we go. And just on context, that statement was a statement in support of the 9th Circuit going en banc in the Oregon case, because they had already decided at the end of October to take it en banc and this is him saying, here's what I think we should be doing. But I think you're right. I mean, he also wants the Supreme Court or their clerks to see what he has to say. And what he wants to do is call the court's attention to the full en banc Court, to Article 4, Section 4 of the US Constitution, which people think of as the guarantee clause. But there's another part of that clause. Let me just read that whole section. It says, the United States shall guarantee to every state in this union a republican form of government and shall protect each of them against invasion, semicolon, and on application of the legislature or of the executive, when the legislature cannot be convened, against domestic violence. So, right. This is about. We're protecting the states, giving them a republican form of government and protecting them against invasion. And if the legislature or the executive of the state asks, we'll also protect against domestic violence. So what Judge Bibby is saying is that in this situation where these deployments are about the execution of law, they're not about an invasion. Right. A foreign invasion. Then this provision should limit the president's authority to only situations where the state itself, through its legislature or its governor, has requested the assistance of the federal government to help with this issue. And Judge Bibi writes a very long statement, and he goes back through history to rebellions going Shays Rebellion, the Whiskey Rebellion, a whole bunch of other rebellions. And he.

[A]

18Th, 19th, 20th century.

[B]

Yes. And he says, look, in all of these instances, except for two, the president, beginning with George Washington, was very adamant to make sure that when they were going to use federal military, because this is before you actually had the National Guard, you know, federal military in a state, you coordinated with that state and the state wanted you to do it. It. And so he's saying this is one of the most core principles of federalism that particularly we're just talking about, because normally the police power in a state is completely given to the states under our Constitution and our system of federalism. And the federal government won't get involved with that unless the state wants us to get involved. And if here what we're seeing is states repeatedly saying, no, we've got this, you know, we don't have an issue here where the government's not able to execute the laws. Local police and state police and law enforcement are completely capable of, you know, maintaining the safety of federal agents who are trying to do their jobs, even in the face of protests, you know, repeatedly. Each state.

[A]

Right.

[B]

California, Oregon, Illinois, and even the District of Columbia that's not a state has said, we got this. He's saying, I want us to look carefully at Whether this Article 4, Section 4, is a limitation on what the president can do here because he has not had a request or even a desire by the states to have federalized troops there. And I want us to look differently at how much we defer to the judgment of the executive on these types of issues. These are not like foreign national security issues, like with an invasion from a foreign army. These are. Are purely domestic issues. And the Constitution speaks to those. And we should not be given this sort of unfettered deference to the discretion of the president on these issues.

[A]

So this is very much a state's rights view, saying, like, this military power is gotta be subordinate to this domestic clause that you're talking about. And he really strengthens that with all of the examples of history and talks about when the Constitution was enacted, that this was a key thing that people were worried about, that the domestic violence clause, the clause that you're talking about, was there to protect states rights. And he has some wonderful quotes that really go to and speak to our times. And he says about the framers of the Constitution. They were concerned that the conferral of this military power, that it not usurp the state's primary responsibility for addressing crimes, riots and other lawless action. And now here's a quote from an author which is, it is no easy thing to establish a republican military powerful enough to protect against foreign enemies and domestic insurrections without creating the danger to which all too many republics have succumbed, that the man on the white horse will seize the reins of power. And similarly, he quotes from George Mason warning at the Virginia ratification convention. And there's another quote. The meeting of three or four persons might be called an insurrection, and the militia might be called out to disperse them.

[B]

Yeah, yeah. Oh, yeah.

[A]

And so I think that Judge Bibby put this out there because, you know, we're waiting any day now for the Supreme Court ruling. And he has this very distinct view that he wants to have be considered. So fascinating. And it's interesting because Judge Bybey is not known as a sort of liberal judge, and that's putting it mildly. And obviously he writes a big States Rights act view of this, but in this situation, it really would restrict federal power. He also, I should just point out, does distinguish historically and distinguishes analytically the federal government using its power in connection with civil rights cases where you have state officials violating the law. And so he talks about why that's a different situation.

[B]

It's also different under the law. Right. Under provisions where the military was used, that was under the Insurrection act, under provisions specifically meant to address these things pursuant to the 14th Amendment. Really, we have to at least say another judge, Judge Tung, also issued a statement responding to Judge Bybey, basically saying he's wrong on all counts. We've got to defer to the president on when there's a need for this. And he's wrong on history. And he goes back through some of the rebellions and tries to say just because George Washington wanted to confer with the governor doesn't mean he was requiring the governor's consent. And he thinks this is really basically, I think what Judge Bibby is suggesting would be judges going beyond their authority to try to get involved in things that he claims are purely within the purview of Congress and the president. And said we say Congress gave the authority to the President through the statutes it enacted. And basically ends his statement saying Judge Bibi's work, mountainous as it is, does nothing to refute the principle. The principle he's referring to is that Congress assigned the president the power to call forth the militia when he determines he's unable to execute federal laws. He says that Judge Bybee is, in the end, a great labor producing a mouse.

[A]

So we'll see whether that's true or not, because the Supreme Court will be ruling and we'll see what they say about all of this.

[B]

Yeah.

[A]

In the meantime, everyone, thank you very much for listening. I know this is sort of an interesting episode because there's like horrendous stuff, but there's some, really, some people upholding the rule of law. So thanks so much for listening, stay engaged. And just a heads up, next week we'll be releasing an episode a day early to get ahead of the holiday, which Mary and I will enjoy and you should enjoy as well. So we look forward to our next episode on Monday evening. That's right.

[B]

This podcast is produced by Vicki Virgolina. Our assistant associate producers are Iggy Manda and Rana Shabazzi. And our intern is Colette Holcomb. Greg Devens 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.

[A]

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[B]

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