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Main Justice
Lawlessness in Progress
00:51:12
The cases against James Comey and Letitia James are dismissed. Plus: A Pentagon investigation into Sen. Mark Kelly raises concerns.
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Prices and participation may vary. Prices may be higher in Hawaii, Alaska and California. And for delivery. Hello and welcome back to Main Justice. It is Tuesday morning, November 25th. I'm Andrew Weissman and I'm here with my co host, Mary McCord. And before we begin, I just want to wish everybody a wonderful, wonderful Thanksgiving. And it is my absolute favorite holiday. And so I wish everyone has a wonderful time. It's like family gets together and really good food. I mean, just really, really good food. But also, it's such a nice thing that there is a national time to give thanks so much. I'm going to give thanks to two things. One, I want to give thanks to being able to do this podcast with you and to be supported by such a great team. And the others, I want to just thank all of our listeners. We do this for you, but you do it for us.
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A
I need to second that. Thanks to you, to our team of producers and sound engineers and everyone at Ms. Now, and also to all the listeners. Yes, we are grateful. Sometimes when I am cramming, reading all weekend, all Monday night, early Tuesday morning, I feel less thankful. But once we start the recording, I'm like, let's go, let's do this.
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B
You know what it's like. Both of us have done trials and it's like that, you know, before trial. I mean, it is. People think, oh, isn't it a lot of fun? I mean, no. I used to tell people who are applying for the job, I'd be like, at the time the trial starts is when you want to just curl up in bed and go to sleep because you are just put through the wringer, particularly on the government side. In private practice, when you have a lot more help, it's easier. But, you know, usually kind of by.
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A
Yourself on the government side.
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B
Exactly. But with all of that said, when the trial starts and you are presenting and you stand up and you say Andrew Weissman on behalf of the United States, and you feel that responsibility. There's no experience like that and it's such a privilege.
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A
I also think at that point, a lot of the stress is off, particularly for an argument, because if you're prepared, there's nothing you can do after that. You just give your argument and you do your best job. And so as soon as I stand up and say my name, I'm good.
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B
You know, so much of what we're going to talk about is the privilege of representing the government, the obligations and responsibilities that go with it, and how we've seen judges rise to the occasions and uphold that sense of what it means to be a public servant and your obligations. And where we've seen the current administration and in this episode, not just the Department of Justice, we're going to talk about the Department of Defense, not as you say, the War Department, the Department of Defense, and that idea of not taking their obligations seriously. So perfect segue.
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A
It might be clear to people we will start with the dismissal of the cases against James Comey and Letitia Jang on the grounds that Lindsey Halligan was not properly appointed as the interim U.S. attorney in the Eastern District of Virginia. Well, also, I had expected we'd be talking about the just debacle of a hearing last week when they were arguing Mr. Comey's vindictive and selective prosecution motion. We will detour into that.
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B
Talk about jaw clattering to the ground.
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A
Yes.
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B
But anyway, so we definitely will talk.
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A
About both of those things. Then we will talk about. You mentioned the Department of Defense. Really pretty extraordinary announcement that the Department of Defense Pentagon is investigating Senator Mark Kelly based on a video that he and five other Democratic lawmakers who are all former military or intelligence officials put out about just reminding military officers of the law. Pretty extraordinary.
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B
So, Mary, let me just make sure we're going to be talking about the government investigating somebody for saying something that is the law.
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A
Yeah. And that also is protected speech and that also is the speech of a legislator. So, yes, there's some problems with this in many, many ways.
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B
This is one that I know I beat this drum every week, but this is one you can first react on a policy level and then react on the law level. We obviously will talk about the law part. But as policy level, who in their right mind does this? And I really would ask people to think when we get into this, why would you be doing this? What is it that you're trying to accomplish?
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A
100%. And then finally, if we haven't used up all of our time. We do want to highlight just something that strikes me as a little too rich. Right. The Department of Justice suing in California against the redistricting. They're calling it a racial gerrymandering and then defending the redistricting in Texas against a finding of racial gerrymandering, saying, no, this is not racial gerrymandering. This is just partisan gerrymandering. So you might think, no, no.
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B
Well, Mary, there's a total consistency there, which is that if it's good for the Republicans, we do this and if it's good for the Democrats, we do that.
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A
That's one takeaway.
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B
The problem, Mary, is that you are applying the apolitical consistency that you're looking for. I think I remember a week ago.
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A
I was just gonna say that was our theme last week.
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B
That was why you were the quote of the day last week. Because you're like, they've given up. The ghost of this being apolitical and principles and neutral. Anyway, should we turn to the comey Letitia James cases? Why don't we just get right to the heart of the big news and then we can just backtrack and talk a little bit about this jaw dropping part about Lindsey Halligan because it'll go to her competence level and the government's competence level. Obviously everyone who has listened to this knows that the judge who was assigned to this who is outside of the Eastern district of Virginia, so that the judge would not have a conflict and could decide this. The judge has issued her decision on.
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A
Just the motion about Lindsey Halligan being unlawfully appointed. Just to be clear, that's the only issue that this outside judge from South Carolina was deciding.
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B
And that actually becomes so relevant. I'm glad you're like making it clear that was assigned to the judge that and only that. And so the decision was that. And this is in keeping with many, many other decisions around the country that there are judges who have struck down and said Alina Haba in New Jersey was not properly appointed. And then there are a series of, I think three other, I think at least three US Attorneys who are interim US Attorneys where judges have said they were improperly appointed. This idea that you can keep on extending essentially have a 120 day interim and then just point to another 120. It's like you can keep doing this, but you never actually get to Senate confirmation.
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A
What's the point of a 100 day limit if you can just keep appointing a new person or the same person every 120 days.
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B
Exactly. And so the judge strikes that down. Everyone has now heard that.
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A
And just to be clear, what she says is that based on the text, structure and history of the statute that provides for this 120 day interim appointment, the Attorney General's authority lasts for a total of 120 days from the date she first invokes the statute after the departure of A Senate confirmed U.S. attorney. And so this, of course, had completely expired when the previous interim U.S. attorney, Eric Siebert, had served for 120 days, then was appointed by the district court and then resigned. So there was no more 120 day period to restart. The second thing the judge says about that is that the position remains vacant after the end of the 120 days or after someone resigns. But the 120 days has already been used up. The exclusive authority to make further interim appointments under the statute shifts to the district court, where it remains until the President's nominee is confirmed by the Senate. And the reason I emphasize this is some people may be thinking, well, what happens now? Because this dismissal was without prejudice, and we'll come back to that.
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B
But yes, no, absolutely. And so I think one of the things to foot stomp that you're saying is the judge isn't just making this up, going, oh, I don't like this person, or I don't like their policies. There is a congressional statute, Congress has talked about the way to do this, and the judge is interpreting that in a way that is completely consistent with the way all the other judges who have looked at this issue are interpreting it. And frankly, it makes just a whole hell of a lot of sense. And it is one of the few times and we've talked about in the past that, you know, the Trump administration has pushed the limits and said, you know, we're going to test this out. But the judges are saying, you can test it out, but it keeps on not working. You can't do this. And that you either can nominate somebody and hope they get confirmed in time, but at this point, if you, by the way, had appointed somebody as an interim who is actually qualified, the chances of the judges saying, oh, that person can now continue serving, which is what traditionally happens, would be a much higher. And that's what usually happens, just to be clear, in Democratic and, and Republican administrations, when it doesn't happen, it is so rare. And it's so rare because the person is just not qualified.
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A
Except for now, it's not rare anymore.
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B
Exactly.
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A
And this also has constitutional dimensions, which is important to the ultimate ruling, right, which is that because it's the Appointments Clause of the Constitution that lets Congress by law, to vest the appointment of inferior officers, and the U.S. attorney is an inferior officer, the Congress can pass laws to vest the appointment power in the President alone in the courts of law, or in the heads of departments. So they had passed this law. Right. That we just discussed, that was violated. And because of that violation, the judge finds that this appointment was not authorized by law and therefore also violates the Appointments Clause, the Constitution. And that's what really triggers a remedy, because the government makes arguments, oh, this is harmless error. If there is any error. This is harmless because the grand jury returned an indictment. They also argue that Pamela Bondi, as Attorney General, ratified what Lindsey Halligan did. Tried to retroactively. Yeah, tried to retroactively appoint her as something else. Tried to retroactively ratify what she did. And basically the judge says there's no authority to go back and say, well, a do over after the fact.
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B
And this is one of the analogies, by the way, to that was she said, well, then why not just get somebody off the street?
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A
Yes, that's a good one.
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B
To go to the grand jury and indict somebody and then later the Attorney General can just say, oh, I ratify it. Like you literally could just pick anybody. So she's like, it just doesn't work that way. I had a question for you though, because one of the things that the judge does at the end is deal with what exactly is he going to do? Because she wanted to put the parties back and she does put them back in the position. And so she says, I am dismissing the indictments in both the Comey case and in Letitia James case without prejudice, meaning that the government could still do something because it's without prejudice, meaning that they're not barred from going forward. Now, obviously they can appeal her decision completely and just say it was wrong and go up to the circuit and see if it gets changed. Then they can try and go to the Supreme Court. And let's assume that this decision is the decision that stands. It leaves this ability to go forward with somebody other than Lindsey Halligan.
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A
And by that you mean somebody other than Lindsey Halligan, like let's say a validly appointed U.S. attorney.
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B
Exactly.
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A
Or even just a prosecutor in the office who's got authority to go ahead and. And seek a new indictment in front of a new grand jury.
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B
Exactly. So the questions I had for you is why do you think the judge did that? Do you think it was the Right. Call. And then let's separate out what we think could happen in the Comey case from what could happen in the Letitia James case. Because there's different issues because of the statute of limitations. Right.
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A
So I think the judge did this, and I think you alluded to this, Andrew, because she was asked to decide this question about the appointment. The remedy she chose, she said, is based on preexisting law that says put the parties back in the position they would have been before the unlawful appointment. So that's kind of exactly what she did. James Comey and his lawyers argued this should be a dismissal with prejudice. And for those, I'm sure, who are tracking. But if you aren't, that means it can never be rebrought again, absent her decision getting overruled.
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B
Yes, but absolutely. Assuming this is the decision that stands, if it's with prejudice, it's over. It's like double jeopardy.
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A
And he said, there's malfeasance here, and because of the government's conduct, this should be with prejudice. But she says, based on the law, I just put you back and where you were before. But she drops an important footnote because people are probably saying, by the way.
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B
Do you think that was the right thing? Because I'm going to tip my hands. I actually agree. I think it was a very careful circumscribed. I'm staying in my lane.
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A
I do, too.
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B
It doesn't mean that a judge couldn't have done something different. But I think what was given to her, she's like, I'm going to decide this. If the government ultimately decides to go forward with an indictment later, there'll be other reasons for the argument about that in front of the judge who has that. I was given X to decide. So I actually thought it was the right thing.
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A
I agree. I 100% agree, although I think she would have had the power to do the other. But I think this is. This is appropriate, and it's consistent with the law of put people back in the position that they were surprised we.
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B
Are in violent agreement.
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A
But I do think this is where the differences between James Comey's situation and Letitia James start to arise. Because as many people will recall, the statute of limitations for the charges against Mr. Comey were within days of expiring when Lindsey Halligan got the indictment that she got from the grand jury. And so the judge drops a footnote saying, generally, the return of an indictment will toll the statute of limitations on the charges contained in the indictment. So the government may argue we can Go and re indict James Comey because we had whatever it is, two, three days left on the statute of limitations. Because when Lindsay Halligan returned that first indictment, it told that statute and there was a problem. So now we can fix it. Her next sentence, however, in this footnote is and it's a quote from a case, an invalid indictment, however, cannot serve to block the door of limitations as it swings closed. Quotes another case, a valid indictment insulates from statute of limitations problems any refiling of the same charges during the pendency of that valid indictment. That is the superseding of a valid indictment. But if the earlier indictment is void, there is no legitimate peg on which to hang such a judicial limitations tolling result. And this is important because here her conclusion in the body of her opinion is this was an invalid indictment because it was returned by somebody who was not appointed consistent with the statute and in violation of the Constitution's appointments clause, which is why her remedy was dismissal for an invalid indictment. So even though she's not making a final decision on this, what she's channeling is if the government seeks to re indict, these are the arguments that will be no doubt. Obviously Mr. Comey will make them. And the arguments that a future judge will have to decide was that told or not or did the statute of limitations end? We don't have.
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B
Right.
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A
So with Letitia James.
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B
Right, Because Letitia James, there's lots and lots of time left for the government to bring that case. The issue that is common to both of them is that both for James Comey and for Letitia James, they have to find a valid prosecutor who's willing to do this. Remember Eric Siebert, who had been appointed by Donald Trump initially as the first interim U.S. attorney, refused to do it according to the reporting. And so they have to find somebody who's going to be convinced to do this for whatever reason. I'm not going to use the term puppet, which is the one that came up from the judge, but somebody who is an amanuensis of the president or just actually believes in their heart of hearts that this is the right thing to do, but they have to find that person who's willing to do it. But then second, with James Comey, there is this issue about what the government's going to argue as to why it is timely, broad, because they have to have an argument for why it's within the five year period, that footnote, which is sort of dicta, meaning it's not totally binding on the new judge who would get the case, but it certainly signals what this judge is thinking. I had an issue though because we're going to get you a little bit into the weeds. But there is a congressional statute 3288 that is sort of this six month window that says that in most circumstances other than one that's not really relevant here, if an indictment is dismissed, it gives the government six more months to bring the indictment. And the idea of that is if you've got a case and you thought it was valid and for some reason it gets challenged and the court says, oh wait, you made a mistake, this one isn't valid and you could easily have fixed it. But let's assume the statute has now run. You basically are given six more months to bring the case. And I am not convinced that that statute would not apply here. I can see arguments on both sides of it. One of the hypotheticals I was thinking about was let's assume that the issue was that the case was brought in the Eastern District of Virginia, but there was no venue and it just had to be dismissed. It really had to be brought somewhere else and the judge actually dismisses it, doesn't transfer it dismisses it. And so the defense would argue that's an invalid indictment. The grand jury never had jurisdiction to decide this because it wasn't in the right venue. So that the Eastern Virginia grand jury couldn't actually vote the indictment. It is true that let's. I'm going to pick a hypothetical. Nevada could have indicted it, but they didn't. And I think the government would say, well, 3288, this statute allows this sort of six month leeway. And so to me that's going to be the government's best argument for trying to somehow resurrect this because they have to come up with something. And that's like all I could really think of, by the way. I can think of arguments against it, but I'm just not sure it's going to be so open and shut if the government decides to try and bring a case again against James Comey.
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A
It's interesting because the government made an argument based on that statute 18 U.S. code 3288. But their argument was basically in support of the Attorney General's attempt to ratify what.
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B
Yeah, terrible.
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A
What Halligan had done by citing this and saying this ratification by Bondi was within this six month grace period. And she rejects that because she said the indictment hadn't been dismissed.
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B
Right. The language doesn't work.
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A
I mean that was a terrible argument it was. So I think they probably will make this argument. I think this is an argument that would work better for what had happened in court last week. The problem that was identified with the indictment last week apart completely from this new ruling that this indictment was completely void ab initio from the beginning for all purposes, because Lindsey Halligan was not properly employed. Because. Well, should we take a break and then briefly recount what happened last week? And then how 3288 could work for that cliffhanger?
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B
Let's come back and talk about what I'll call the Lindsay Halligan flip flop. Yeah, or maybe it's the Lindsay Halligan flip flop flip.
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A
Yes, I think so. Let's do it.
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B
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A
Yes. So at the hearing on James Comey's motion to dismiss on the grounds of vindictive and selective prosecution in the course of that hearing, and listeners will know in a previous hearing, questions had been raised about the grand jury transcript and this gap of time, you know, between when Lindsey Halligan finished presenting the case, asked them to deliberate on the indictment, and then two hours passed and then she went and was in court to return the indictment. And there were these two indictments and it was like, what's going on? What's correct and what's not? Well, this came up again during the hearing last week on the motion to dismiss on grounds of vindictive or selective prosecution. And it turned out that the person representing the United States in court, who again is a prosecutor that had to be brought up from North Carolina because either nobody in the EDVA was willing to do it, or maybe Ms. Halligan didn't want to ask anybody in the Eastern District to do it. I don't know. But at some point that person indicates to the court that the actual two count indictment that was returned to the court after the grand jury decided not to return one of the three counts on the original three count indictment, that the prosecutor ends up saying that this two count indictment had not been presented to the full grand jury. And that elicited sort of an immediate response from Mr. Comey's attorneys. And by the way, it was Michael Dreeben who was arguing. Michael Dreeben, who, you know, people who have listened to us for a long time will know that we think is one of the greatest, you know, oral advocates in the country and has argued over 100 Supreme Court cases.
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B
By the way, you don't need to be Michael driven to know this, which is, I'm sorry, if the indictment is not presented to the grand jury and voted on by the grand jury, then you don't have an indictment.
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A
That's right. And so that causes actually during the hearing, right. The judge asked Ms. Halligan, who was sitting in the audience or at the table to come up and explain it.
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B
Because who would know better? Because she was the person who was in the grand jury and she was the only prosecutor doing the presentation. We talked about that last week. How remarkable is. So obviously you go to, you know, the proverbial horse's mouth. There's no one better to answer the question. And what does she say?
- [24:11]
A
Well, you tell me, what did she say? Could she answer the question?
- [24:14]
B
She affirms what the line attorney has just said from the government, which is, no, she did not present this to the grand jury. And so you have Both the interim U.S. attorney days before she was disqualified and the line attorney saying it was not presented. There also is no transcript of like, if it was presented, there would have been a transcript of her going back.
- [24:39]
A
In and saying, here's a new indictment with just these two counts.
- [24:42]
B
And previously the court reporter, in connection with sort of earlier discussions with the Magistrate, the court reporter had said that it didn't happen, essentially because the court reporter was saying no. After the return on the first indictment, the grand jurors were dismissed. It was a little ambiguous because it didn't totally say exactly when, but it was pretty clear. There was no court appearance, but there was no grand jury appearance at that point. So all of the evidence at this point was that the second indictment was never voted on by the full grand jury, presented to them and voted on. So that left issues about whether you could rely on the first indictment. We've talked about that last week, but what happened the very next day?
- [25:23]
A
The very next day the government comes in and says, oh, no, no, no, no, we made a mistake on that. We want to correct the record. They pulled the transcript of Ms. Halligan, you know, going into court to file this return. The whole grand jury doesn't have to be there, although I've certainly done it before, where the whole grand jury does go down to court in this case apparently was just the four person. And the government takes little snippets from the transcript and is claiming that actually this transcript conclusively refutes the claim that the two count indictment was not presented to the grand jury. I will tell you though, I've read the whole transcript, not just the snippets, because I read the snippets and I'm like, I'm not sure this conclusively refutes it.
- [26:04]
B
Don't mess with Mary McCord.
- [26:06]
A
And I'm like, you know, it's just ambiguous. I mean, I do think it's confused. I'm not sure if they saw it or not. It appears, and this is just from the hearing last week, the grand jury hearing. It appears that what happened is when they went into court to return these indictments, there were the two things. There was this notice of the grand jury not concurring, not having 12 or more members concurring on the indictment, and that had the full three count indictment attached to it. So that appeared on a face to be like, we rejected the whole thing. Then there was this separate two count indictment. Both of these had Ms. Halligan's signature on them, although she did say in court last week that she didn't think she'd ever seen the first one. And the court says, that's your signature on it. And she says, well, oops. So, yeah, anyway, put that aside. So it comes to find out, when you look at the full transcript of that return is that the judge was confused. The judge then questioned the four person, the Foreperson explained that it was only a failure to concur 12 or more grand jurors on count one. And so the judge instructed the foreperson to write that in on count one only so that now this made sense that there were these two separate filings. But what we really still don't know is that after the word got back to the U.S. attorney's office that they had no billed the first person first count, somebody made a direction to retype the indictment with just two counts.
- [27:25]
B
And we don't know who.
- [27:27]
A
That indictment made its way back through a grand jury coordinator back into the grand jury. But what we don't know is did the full grand jury then see it or did only the 4 person sign it thinking, you know, they already voted on counts two and three. Those same exact counts verbatim, by the way, are now counts one and two. The grand jury has voted.
- [27:45]
B
And when the four persons asked about this with the transcripts reflects in front of the magistrate judge is what could have been just very ambiguous because he's saying, yes, it's the same meaning it's, this is the same language that was in counts two and three are now in counts one and two, as opposed to the grand jurors saw the actual second indictment. But what's outrageous is that the government obviously knows that there's that ambiguity in this transcript that they're presenting now. But it also is like literally less than 24 hours after you had the interim U.S. attorney and the law line attorney represent to the judge that it was not done, then within 24 hours, they turn to them and they say, no, it was done.
- [28:31]
A
It's embarrassing.
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B
It's ridiculously embarrassing because now that they say it's dispositive, it's dispositive. Then what part of their submission talked about then why did Lindsey Halligan and the line attorney say it wasn't done? I mean, if you want to know why there is a presumption of irregularity, it is things like this. This is not rogue judges. This is not rogue Democrat judges. This is not a partisan issue. This is not how you behave if you represent the government. Frankly, it's not how you behave if you are an officer of the court in a civil matter.
- [29:06]
A
And it just shows the lack of experience. She just didn't know what the proper procedure was.
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B
You know, and I actually think it's probably that what she said to the judge, which is that was not presented is probably right. And so that's truthful. And so she should have as still being the Interim attorney saying we're not going to make a filing 24 hours later saying that no, it is, especially when it's ambiguous.
- [29:30]
A
So if the judge wants to get down to the bottom of it, he'll bring in the grand jury for person and ask the grand jury four person, did the full grand jury exactly see this indictment or not? I mean, of course, simple question, of.
- [29:39]
B
Course, right now the case is over.
- [29:41]
A
Well, maybe, maybe not. So two points I want to make before we switch gears. One on this 3288, six months to bring a new indictment. This is a situation where if it turns out the grand jury didn't see that two count indictment and it gets dismissed, I think there would be an argument that it could be rebrought within that period, even though the statute of limitations has expired because it does appear they had voted on those two counts. And this is more like a technical procedural error. So even though I know that Mr. Comey's team, including, you know, the attorneys we so respect are arguing no, it should just be full dismissal outright because of this and a million other things that have gone wrong with this case. I think that that's a place where that six month period could potentially be applicable. Second point to go to you saying the case is over for now.
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B
For now.
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A
Is it moot when there's just a dismissal without prejudice while you have pending motions to dismiss with prejudice? And I think part of that's going to depend on what does the government do.
- [30:41]
B
That's a good question.
- [30:42]
A
Yeah. Because like if I'm Comey, I want to get my dismissal with prejudice and I want to say I've still got something left to argue here that I'd like to get a court ruling on. On the other hand, having this drag out for longer is not hurting him. It's not like he's detained. He has it hanging over his head, which is a significant thing. But you know, he would be in the position of, you know, it's still dismissed even if it's without prejudice. So I do think those are interesting questions. Plus if the government appeals, then there are questions about whether the district court even has any jurisdiction to rule on other pending motions, et cetera, etc, so we can come back to all that when we find out what the government does.
- [31:19]
B
Shall we talk about Mark Kelly? Yes. So first, this video that we will put a link to in our show notes because this is the controversy by putting this link in, we're not advocating for it or against it. It's so that, you know what the controversy is about what exactly are they saying? Because it's really important to know what they're saying and particularly what they're not saying. And so what is it that these members of Congress put a video out to say?
- [31:46]
A
Importantly, all six of the members of Congress are either former military or former intelligence officers, and they each give their former position. And the point of their video is to remind military officers that they do not have to follow unlawful orders. They have a duty to not follow unlawful orders.
- [32:06]
B
Unlawful. That is the key phrase here. They are not saying do not follow orders. That is, to me, the critical piece here.
- [32:16]
A
They are also not specifying any particular order and saying this one is unlawful. Don't follow it. Not at all. They are just at a higher level of sort of generality, saying your obligation, right, is to the Constitution is to the United States, to the law, to.
- [32:31]
B
The law, not to a person.
- [32:33]
A
That is it. Again, the genesis of this, I think, is concern among not just these members of Congress, but other members of Congress, Many, many former military lawyers, probably current military lawyers as well, and intelligence lawyers, many lawyers, such as myself, Tess Bridgman, you, based on having discussed this with Tess Bridgman on our recent episode, who are concerned that these strikes in the Caribbean and in the eastern Pacific are unlawful under domestic and international law, can.
- [33:04]
B
I add, who else who thinks that other nations that share intelligence with us to make us safer, and we share with them to make them safer, other nations, critical partners to make us safe, are saying that they are not going to share intelligence that will be used to further these boat strikes because they think it violates the law. And so they do not, under international law, under their own domestic law, have that liability. So just to be clear, there are domestic lawyers who are saying that. There are people in government that are reported to have said that they have real concerns about the legality, but we're seeing it across the globe as well. It's so important to understand that because, Mary, the world you come from, I came from when we were doing intelligence work, is that the threat is global and has to be dealt with on a global way. I can't stress to people enough how serious it is when you have somebody we really work with day in and day out to keep us safe, saying, you've gone too far.
- [34:10]
A
That's right. And you know, there's some incredible reporting over the weekend by the Washington Post that really dives into how many lawyers within government, Department of Defense, Department of Justice, former lawyers, the net. You know, when we talked with Tess Bridgman, she Used to work in the National Security Council's legal advisor staff, about a half a dozen lawyers. There are none left. The government has said no, we're just handling everything out of White House Counsel's office. Now. The legal advisors to the National Security Council were part of the White House counsel staff, but they were assigned specifically for national security matters. They're all gone. And many of the judge advocates general in the highest level of the military were fired back in the spring. Right.
- [34:52]
B
Heads chopped off.
- [34:54]
A
That's right. So this reporting is also saying that there are people, you know, within the military who are sort of looking for guidance because they're concerned about the legality of some of these things and they're concerned about their own potential exposure. Right.
- [35:09]
B
In the future as well as doing the right thing.
- [35:12]
A
Of course. Right, yes. These are people.
- [35:14]
B
People need to understand that in the military these people are trained to follow the law. I'm not saying that applies that everybody does it more than like anyone else in the government or in the civilian world. But there is enormous stress on complying with the law and following rules. And so here, getting to the Mark Kelly piece of this is that he now has been targeted for speech. There's no question it is First Amendment protected activity. As a member of Congress, he may have an argument that it's covered by something called the speech and debate clause.
- [35:55]
A
It's an immunity.
- [35:56]
B
Exactly. And so the third is everything he said is the law. He didn't say anything that is improper. So ask yourself why would the Pentagon be stressing to people who said you need to make sure that you don't do something illegal and that you follow only lawful orders? Why would the Department of Defense target somebody for doing that? Don't they think that's the rule?
- [36:27]
A
Well, that kind of is a good segue to something you haven't yet mentioned, which is unlawful command influence. So let's take a break, come back and we'll talk a little bit more about that.
- [36:47]
B
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- [38:28]
A
Well, you indicated, you know, ask our listeners a question. Why would the Department of Defense be doing this? Well, one obvious reason is because the president is telling them to. The president responded to this video with a series of social media posts, really pretty staggering, accusing these members of Congress of engaging in sedition and all kinds of criminal violations and suggesting really heinous punishments.
- [38:57]
B
And that is when you say heinous punishment. Could you just be more specific because we just think we have to to call it out.
- [39:03]
A
Well, I think he said punishable by death. Right. And I think he also reposted someone else's post about hanging them.
- [39:13]
B
So let's just remember we're talking about a video where people said that you have to follow lawful orders, but you do not. Not only you're not supposed to follow the legal orders. Isn't that the law? And isn't that what a president and the head of the Department of Defense want? The intimidation and the sort of brushback pitch of this is just remarkable. And it is the perfect, perfect thing to be talking about. When we had our first part talking about Comey and Letitia James and their treatment and what you do with somebody who is the current attorney general in New York, the former head of the FBI, and now you've got members of Congress with these kinds of overt threats of a member of Congress for speech, and not just speech, speech that is saying what the law is and that.
- [40:14]
A
Is arguably part of their legislative function, because at least one of those other members who was part of that video talking about the fact that The Congress is going to be considering what can be done about this. Right? And that means considering legislation. And as you indicate, the speech or debate clause immunizes members of Congress for legislative acts, right? Things that are an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. That is a quote from a United States Supreme Court case about what legislative acts are immune from prosecution. So all of what you said is true. But let's get also to the why? Why is the department doing this? President Trump immediately responded this way. Then we got an official statement put out on X, because that's how official statements are put out these days, that the Department of War, that's in my scare quotes, because that's not legit, has received serious allegations of misconduct against Captain Mark Kelly, US Navy retired. And then it says that under the Uniform Code of Military Justice, a thorough review of these allegations has been initiated to determine further actions. And get this. Which may include recall to active duty for court martial proceedings. Now that is kind of amazing.
- [41:46]
B
Just think about the intimidation factor here. Not so much for Mark Kelly, who I'm not worried about, but what it's saying to everybody. This can happen to you.
- [41:56]
A
Shut your mouth. Shut your mouth is what it's saying. Right? Keep your mouth shut.
- [42:00]
B
And that, by the way, is kind of the polite way of phrasing it.
- [42:03]
A
Yeah, yeah, that's right. I could say something else. It then goes on to say that the Department of War is reminding all individuals that military retirees remain subject to the Uniform Code of Military justice for applicable offenses and federal laws such as 18 US Code 2387, which is a criminal law that prohibits people from interfering with, impairing or influencing the loyalty and discipline of the military by urging them to be insubordinate, disloyal, urging them to mutiny or refusal of duty. And again, let's get back to what the actual video was. It did not urge any of those things. Right? None of it stated the law. Nevertheless, in this social media post, there's this threat of prosecution under court martial and under federal law and then reminding service members of their legal obligation. So what did I say about unlawful command influence? There is an article of the Uniform Code of Military justice that says no person subject to the Code may attempt to coerce or by any unauthorized means influence the action of a court martial or any member thereof. And what the former Jags who I am aware of, who have been thinking about this and put out a statement about this, has said this is essentially the military's equivalent of a vindictive prosecution defense.
- [43:29]
B
Exactly.
- [43:29]
A
And it's actually something that Bo Bergdahl, service member people might be going back into their memory, who is alleged to have walked away from his post in Afghanistan, was then captured and held by the Taliban for several years before he was found. He was then charged with desertion and other charges under court martial. And President Trump at the time had called him a traitor, had called for the worst penalties, and he had moved to dismiss his court martial on grounds of unlawful command influence. This essentially, this was vindictive court martial. Now, that was rejected in his case, but that is what we're talking about here. I think in the circumstances as we've just outlined, it could be very powerful if, if this even gets to the stage of reactivating Senator Kelly and putting him into a court martial process. And it should not get to that.
- [44:21]
B
It should not. But the damage is already done in the same way that the Comey case, the damage in terms of intimidation is already done. But obviously with the judge throwing it out, if the judges were to say that it was vindictive, all of that can help help mitigate that so that you don't have that scare effect. We saw the same thing in the executive orders to academic institutions, the executive orders with respect to law firms, we saw it with respect to Todd Blanche talking about the obligation of the cities and states to cooperate with the federal government in their immigration efforts. And when they have no obligation to cooperate, there are just all these instances of being very, very heavy handed and the results could be trampling on statutes and constitutional rights here. It seems like a clear violation of First Amendment rights in the same way that the executive orders that I've been talking about with respect to law firms were all struck down, all of them on First Amendment grounds. So it's so important, even if you're not Mark Kelly, because of what it says about the government and what it means for other people, people who served us in the military, who we have an obligation to, and the idea that people can't say what the law is. Let's just think about that. Why, if you are the president of the United States, would you not want people to know that? What are you thinking of doing that this might interfere with? Remember, this is what Liz Cheney and many other people and Trump 1.0 at the end of that administration were so focused on, which is the potential abuse of the military. And you had a series of people who were the former heads of the Department of Defense banding together to talk about that and to warn about that. To me, you have to fit what is happening with Mark Kelly into that lens. It is not divorced and coming out of the blue. It is part of thinking about that in context of what we've seen. Mary, shall we turn to. We opened on talking a little bit about other things that are going on, the redistricting and there's like a whole back and forth that just sort of crazy about a case that came down on the redistricting in Texas. Bottom line is that a district judge, actually a three judge panel. And so you have a district judge joined by one other judge being the majority. And then you have a dissent. And they had said that the redistricting is improper. That is now up in the Supreme Court. There's an administrative stay and the Supreme Court's going to weigh in on that issue. And that also has to do with Texas. But Mary, you said, wait a second, that's Texas. What's going on with California? Let's compare and contrast, as they say.
- [47:17]
A
Well, before we leave Texas. So this three judge panel in a two to one decision found that the Texas redistricting effort was a racial gerrymander. That in fact, that when President Trump had called for it on partisan grounds, it kind of got a ho hum response. But then when the Department of Justice Assistant Attorney General for Civil Rights sent a letter to Texas saying, you know, you need to redistrict for basically racial purposes, that that's what got traction. And the governor and others engaged in this redrawing of maps explicitly based on race. And that's what the two of the three judges on the panel found was a racial gerrymander. That is what you just indicated went up to the Supreme Court. The Department of Justice, by the way, was not involved in that case arguing, yes, this is a racial gerrymandering, yes, this violates the Constitution and also the Voting Rights Act. They were not in there saying that they're now up in the Supreme Court on an amicus brief. But meanwhile they were saying racial gerrymandering in California, remember, also redistricting.
- [48:29]
B
Yeah, but that makes total sense, Mary, I don't understand why you, you are so, it's so quaint. Because of course they're doing it in California because that would hurt Donald Trump. Totally consistent.
- [48:43]
A
Totally consistent. You're right. So the very first lines of the introduction of the United States complaint and intervention in, in California and They had to intervene because the case had already been brought there by Republicans. And they're like, we want in. Me, too. We went in. We'll file our own complaint. Here's the first two sentences. Race cannot be used as a proxy to advance political interests. But that is precisely what the California General assembly did with Proposition 50, the recent ballot initiative that junked California's preexisting electoral map in favor of a rush job rejiggering of California's congressional district lines in the press, California's legislators and governors sold a plan to promote the interests of Democrats in the upcoming midterm elections. But amongst themselves and on the debate floor, the focus was not partisanship, but race. Okay, keep that in mind. They're saying racial gerrymander.
- [49:39]
B
And the idea that you can sort of look through facially what they're doing to say, well, it may be about Democrats and Republicans, but that's a proxy.
- [49:48]
A
That's right.
- [49:49]
B
What they're really thinking about. And you should be able as a court to second guess that those are the nuances of what they're saying.
- [49:56]
A
And I will give the government this. And they make this point in the amicus brief they filed in the Supreme Court in the Texas case. There are overlaps here, right, between partisan redistricting and racial redistricting because there are certain racial groups that historically have voted somewhat in a bloc. Right. So it's not that these are super easy to pull apart, but nevertheless, they're taking this position in California. Clearly this was racial gerrymandering and not partisan, because partisan would actually be okay. It's not really okay, but the Supreme Court has said federal courts can't review it. States could prohibit partisan gerrymanders. So, tab in your head what I just read in the Supreme Court. Here comes the US in support of the Supreme Court staying the ban on the use of the redistrict maps in Texas, basically finding a racial gerrymandering. Here's what the Solicitor General says. This case involves an openly avowed partisan gerrymander. Earlier this summer, the Texas legislature enacted a new congressional map for the express purpose of improving Republican political performance. In the words of the bill's sponsor, by creating five districts that Republicans could gain that they did not currently hold. In the words of the Republican operative who drew the map, objections to such partisan gerrymandering are not justiciable in federal court. So then goes on to say, the court below erred by saying this was a racial gerrymandering. Now, maybe we could parse apart the differences. Maybe we could make some logic out of it, but I'm not seeing it.
- [51:32]
B
Yeah. So I mean, to me this will be really a good test of the Supreme Court whether they're going to be even handed here. Look, I'm like with you, like is there some factual difference? I'm waiting to see it and I will keep an open mind. But on the face of it, this is one, it's goose gander time.
- [51:52]
A
It just smells.
- [51:53]
B
It's either one where you're going to stick to, you know what they say it's based on partisanship and you have said partisanship is fine or you're going to say no, that is a proxy for doing this based on race. And you have said that's wrong. And it either applies in Texas and California or not at all. The idea that you're going to separate it out. And by the way, this is one where it's like shoe on the other foot. You wouldn't want this the other way. Like, like it's. I know someday, not in my lifetime, you will have a court that is six three the other way. And it would be wrong for a court to be deciding this. It'd be wrong no matter what, regardless of whether it's six three one way or the other way.
- [52:34]
A
And the whole redistricting as we know, you know, even in California when that was a response to Texas. But I think there are a lot of people who really don't love that either. The whole idea of redistricting in the middle of where we are right now and as opposed to right after a census, it's just, it's undemocratic.
- [52:51]
B
Okay. So Mary, this has been really interesting. There's obviously there's a lot to continue. We actually focused on things that are all sort of in the middle. So stay tuned. Very much more to come in the Comey and Letitia James case. Very much more to come with respect to what's happening with Mark Kelly and very much more to come with respect to the redistricting with Texas versus California. So this hopefully gives, it's like a table setter to understand as it comes up how to understand what's going on. Obviously we're going to be focusing on this like a duck on a June bug.
- [53:31]
A
Oh goodness.
- [53:32]
B
So thank you again everybody. Have a wonderful, wonderful Thanksgiving and thanks for listening. Remember you, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content.
- [53:52]
A
This podcast is produced by Vicki Bergelina Our associate producers are Iggy Monda and Rana Shabazzi. Greg Debbins 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 Ms. Now Audio.
- [54:12]
B
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- [54:33]
A
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