Legal Madlibs

Summary

Main Justice — "Legal Madlibs"

Released: March 4, 2026
Hosts: Andrew Weissmann & Mary McCord
Guest: Tess Bridgman (international law expert, former White House legal advisor)

Episode Overview

This episode dives deeply into the current Trump administration’s confrontational approach to law and its disregard for legal constraints—both internationally and domestically. The analysis is anchored by four topics:

• The legality of the administration’s attack on Iran, featuring expert guest Tess Bridgman
• A surge in immigration-related court orders and the government’s defiance of judicial rulings
• DOJ’s vacillation over appeals against court decisions striking down executive orders blacklisting law firms
• A major First Amendment test involving the government’s seizure of a Washington Post reporter’s devices

Throughout, the hosts emphasize the dangerous precedents being set, the rule of law under threat, and the importance of Congressional and popular response.

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Key Discussion Points & Insights

1. Breaking Down the Attack on Iran (03:31–29:15)

Introduction to the Issue

• Mary McCord frames the issue: The legality (domestic and international) of Trump’s military action against Iran—a departure from recent precedent.

Constitutional and Domestic Law (06:33–16:44)

• Tess Bridgman:

  • Constitution vests the power to declare war with Congress.
  • Over history, presidents (of both parties) have aggrandized unilateral war powers, enabled by a gridlocked Congress.
  • The War Powers Resolution (1973) reasserted that the President only may use force in true emergencies or with explicit Congressional approval.

• Memorable Quote:

  “Unless Congress actually steps up and starts responding, we are in the converse situation of what the Constitution intended, which is one man can take us to war on his own whimsical, even in violation of our international obligations, ostensibly whenever he wants.”
  — Tess Bridgman (04:10)

• The executive branch’s legal justifications have grown “squishy”—using “self-defense,” “imminence,” and “war” as legal mad libs to enable nearly any action.

International Law Analysis (19:25–25:20)

• Use of force is largely prohibited except:

  • (1) With UN Security Council authorization
  • (2) In legitimate self-defense if under attack or under imminent threat

• Trump administration’s rationales echo pre-UN Charter “might makes right”—which undercuts the U.S.’s standing to object to similar conduct (e.g. Russia in Ukraine).

• Memorable Quote:

  “If this isn’t war in the constitutional sense, such thing does not exist...”
  — Tess Bridgman (18:39)

• Building nuclear capability is not itself an imminent threat or attack justifying war.

• The administration’s lack of clarity on purpose, strategy, and off-ramps makes the legal and policy violations that much more dangerous.

Congressional Responsibility & What Comes Next (25:20–29:15)

• Bridgman and hosts stress that Congress and public attention remain the ultimate checks.
• If Congress does not act, the executive will continue unchecked.
• Unique moment of “legal veneer is off”—pattern emerging where rule of law is sidelined.
• Memorable Quote:

  “It’s Congress and it’s the people. ... Having a weapons capability is not the same thing as there being an imminent armed attack.”
  — Tess Bridgman (23:02)

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2. Immigration Lawlessness and Judicial Backlash (30:58–48:52)

Federal Government’s Continued Defiance

• Both hosts highlight a trend in multiple districts: judges finding the government persistently ignoring rulings on detention and due process for non-citizens.

• Key Example (Southern District of West Virginia):

  • Judge notes repeated rulings from several federal judges that certain detentions are illegal.
  • Direct Quote:

    “Rulings by courts on constitutional issues are not advisory opinions. They are not suggestions, they are court orders.”
    — Co-host reading the judge’s opinion (36:12)

• Officials (including jailers) are warned of personal liability (civil, not protected by qualified immunity).

• DOJ attorneys candidly admit in court they plan to keep detaining people as before unless overruled by an appeals court—called out by judges as extraordinary.

Minnesota Surge Parallel

• Similar findings: Massive repeated violations of releases for immigrants, with courts forced to hold government attorneys in contempt and fine them until compliance.
• Procedures force inadequately documented people released far from home, compounding government misconduct.

NYC Columbia Student Incident (41:12–47:16)

• DHS allegedly lied to gain entry to a private dorm to arrest a student, citing a “missing minor” that didn’t exist.
• Discussion of the legal standards for consent in Fourth Amendment law—consent gained through serious material misrepresentation can invalidate a search.
• The unfairness of high-profile intervention (“king’s favor”) needed to resolve what should have been prevented by law.
• Quote:

  “The whole thing [is] so, so unseemly... it shouldn’t have happened to begin with.”
  — Co-host (47:16)

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3. DOJ Drops, Then (Maybe) Resumes, Executive Order Appeals (50:43–58:46)

Background

• Four executive orders blacklisted major law firms based on their representation of anti-Trump clients, barring them from government work, buildings, and security clearances.
• Four district courts unanimously ruled against the orders as unconstitutional, violating the First Amendment and the right to seek redress of grievances.
• DOJ initially appeals, then abruptly seeks to dismiss appeals (before briefs are due)—suggesting they recognized likely defeat at the appellate level.
• Andrew’s disclosure: He was personally named and affected by one EO, with his own First Amendment rights upheld by Judge Bates.

Chilling Effect

• Many large firms “caved” and made pro bono concessions to the administration; others have retreated from visible representations adverse to Trump.

• Quote:

  “It is useful to know that the group of law firms that have basically engaged in appeasement—I call the Neville Chamberlain law firm—goes way beyond just the group of 10... that have caved.”
  — Co-host (57:40)

• Late-breaking news: DOJ may be reconsidering voluntary dismissal and seeking more time to appeal—pending further developments.

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4. First Amendment & Reporters’ Devices: Search, Seizure, and Court Oversight (59:51–67:59)

Washington Post Reporter’s Devices Seized

• Reporter Hannah Natenson’s devices seized based on probable cause that another person leaked classified information. No probable cause she herself committed a crime.

• Judge had to balance press First Amendment protections against legitimate government national security concerns.

• The Rulings:

  • Judge denies both sides’ extremes—neither immediate blanket return of devices nor permission for government filter team review.
  • Instead, the court will personally review for relevance to warrant.
  • Direct Quote from ruling:

    “Allowing the government’s filter team to search a reporter’s work product... is the equivalent of leaving the government’s fox in charge of the Washington Post’s hen house.”
    — Mary McCord reading (63:58)

• The government failed to inform the court about a legal restriction (the PPA), later dissembling about reporter’s status as “suspect.” Judicial trust eroded.

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Most Memorable Moments & Quotes

• On presidential war powers:

  “If this isn't war in the constitutional sense, such thing does not exist.”
  — Tess Bridgman (18:39)

• On executive lawlessness:

  “This is at best legal Mad Libs, at worst a fig leaf... the legal veneer is off.”
  — Co-host (multiple points)

• On DOJ contempt for court orders:

  “They’re admitting that they are continuing to make the same legal arguments that all four district judges ... have found to be illegal and unconstitutional.”
  — Mary McCord (38:23)

• On chilling effects for law firms:

  “Big law firms are basically…off the field. That has had really dire consequences to the legal profession...real dire consequences in terms of the courts being able to see and have forceful advocacy.”
  — Co-host (57:41)

• On the First Amendment and government search power:

  “Allowing the government’s filter team to search a reporter’s work product, most of which consists of unrelated information from confidential sources, is the equivalent of leaving the government’s fox in charge of the Washington Post’s hen house.”
  — Judge’s opinion (63:58)

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Timestamps for Key Segments

• Agenda & rundown: 01:15–02:48
• Attack on Iran, legal basics: 03:31–06:33
• Constitution/War Powers deep dive: 06:33–16:44
• International law assessment: 19:25–25:20
• Congressional checks & risk of precedent: 25:20–29:15
• Immigration orders and judicial backlash: 30:58–41:12
• NYC student search incident: 41:12–47:16
• Law firm blacklisting, First Amendment: 50:43–58:46
• DOJ reverses on appeal? 58:46–59:48
• Reporter’s device search: 59:51–67:59

---

Overall Tone and Closing Thoughts

Frank, urgent, and unvarnished—the episode underscores that legal norms, government accountability, and the very idea of the “rule of law” are under unprecedented stress. Both hosts, together with expert guest Tess Bridgman, hammer home the stakes: as Trump’s new administration sidesteps both legal and institutional checks, Congress and the American public must step up to defend Constitutional balance and democratic norms.

Essential takeaway:
The legal infrastructure is straining—if the system is to work, Congress (and ultimately the people) must respond before dangerous precedents calcify. Every instance in the episode is a new exhibit in a larger pattern: executive overreach, mass non-compliance, legal rationalizations afterwards, and the growing need for robust, vigilant institutional resistance.

Transcript

[Andrew Weissmann]

Why have I asked my H Vac guy I found on angie.com to change my grandpa's trachea tube? Because I was so amazed by how quickly he replaced our air ducts. I knew I could trust him to change Pop Pop's tube while I was on vacation.

[Mary McCord]

Make it quick young man.

[Andrew Weissmann]

Aw, see, Pop Pop trusts you.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

I think we should call a doctor. Connecting homeowners with skilled pros for over 30 years. Angie, the one you trust. Define the ones you trust. Find pros for all your home [e-mail] pancetta mushroom tortellini.

[Mary McCord]

You can eat smart still fit in your bikini.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

I ordered blue apron. I've been happy ever since they sent pre portioned meals.

[Mary McCord]

I don't make no measurements.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Saute the pancetta then I add the mushrooms.

[Mary McCord]

Large skillet cause you can't have too much room.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Garlic pesto tomato paste Calabrian chili Season to taste Order Blue Apr Foreign. Welcome to Main Justice. It is Tuesday morning, March 3rd. I am Andrew Weissman. I'm here with my co host Mary McCord and I'm going to say hi Mary. What's on our agenda?

[Mary McCord]

That's right, we are not going to engage in chit chat because we have too much to talk about and we're going to get right to it. We're going to start by talking about the attack on Iran. From the weekend we are going to have our good friend and expert who will be known to our listeners. Tess Bridgman, international law expert, formerly in the White House office of Legal Advisor, knows all about this kind of stuff, international law, domestic law. We'll talk about all of those things with respect to that attack and the ongoing war that we are in. Then we will move on like we do every week to immigration decisions, including judges in multiple places, getting very frustrated with the government's continued refusal to abide by court orders.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Again and again and again and again,

[Mary McCord]

again and again and again. It is a quote and last up we will turn to the Department of Justice's decision to drop its appeal of all of the rulings against it against the President's executive order blacklisting law firms. They had lost every case in the district court. They had filed an appeal and they have now dismissed that appeal, which means the law firms that challenge the executive orders have conclusively won. They have prevailed because their First Amendment rights had been violated. And then we will talk about the seizure of a Washington Post reporter's devices and how a court resolved the issue of balancing the First Amendment rights of the reporter against the government's rights that it had probable cause to search for regarding classified information that someone else had provided to the reporters. So that's the fastest we have ever done our rundown.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

And now, Tess Bridgman. We're going to make this a really quick introduction. It is a great pleasure to have Tess Bridgman back. Let's just say, suffice it to say she has been in the room where this happens. She has the chops and the expertise to give us the issues involving the law, the issues involving policy and what it's like when you're actually making these decisions. What are the pros and cons and the things that go into it as a lawyer and as a policy matter. With that, let's get to it. Tess, thank you so much. I know that you are really busy right now, given what's going on. Thank you so much for taking time out to talk to the audience about these issues. Mary, you want to start us off?

[Mary McCord]

Sure. Just to be clear, in the room meant in the situation room in the White House, right. As the legal advisor to the National Security Council. So, you know, we have talked with you, Tess, before about what is the legal authority or lack thereof for strikes in the Caribbean Sea and in the Eastern Pacific against alleged members of drug cartels. This is different in kind, it seems to me this attack on Iran that happened over the weekend. And I guess I'd love you to kick us off with how do if at all domestic and international legal authorities differ in this situation? You know, domestic, is this war in the constitutional sense that only Congress can declare and in the international sense, you know, is there a self defense argument? What is the argument? And I will say that's confusing because this administration keeps giving us a whole lot of different rationales for what this attack was premised on or justified by or why we're even doing it and what our goals are?

[Andrew Weissmann]

Yeah, they do. And thank you both for having me. It's an important set of questions. I think you're right, Mary, that this is different in kind than what we've seen before. But some things are important through lines just from the policy perspective and sort of from the context of what this administration is doing, and that is taking the nation to war without regard for international or domestic law in ways that fundamentally shift how we conceive of the constraints imposed by either and lead us to a situation where unless Congress actually steps up and starts responding, we are in the converse situation of what the Constitution intended, which is one man can take us to war on his own whimsical, even in violation of our international obligations, ostensibly whenever he wants. And that's why this has become so dire, is it's, it's both become a pattern. And this is kind of the high point, right, A high watermark for his doing so in ways that are irresponsible. And I just want to start by saying, you know, there's been a healthy, decades long debate about our war powers, the separation of powers between Congress and the President, who has the authority to bring us to war, how that's kind of changed over the centuries. As you know, the President has accreted more power, is able to act quickly, has a military and intelligence apparatus at his disposal. Right. Congress is slow, Congress is in many ways broken. All of these things have been true for a while, they're just worse now. And so there's been this argument, well maybe it's okay, maybe the status quo is fine, that Congress is slow and the President acts quickly. And really in the big wars they'll still step in and provide authorization. Right when there's going to be an Iraq war, an Afghanistan war, they're going to come in and provide authorization. But otherwise maybe it's okay that the President can more or less do what he wants. And I think if anything puts the lie to that critique of war powers reform, it is this. And to be clear, I think it was made in good faith at the time, but we're now way past the point where anyone could argue that the system is working because of how different we are now.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Tess, could you just level set on what is it that the Constitution provides just so people understand? I thought that the Constitution was clear that the power to declare war belongs to Congress. We just spent our last episode talking about Neil Gorsuch's opinion ending about why Congressional power is so important, why the Constitution gives things to Congress and not the President, even though the President may be quicker and it may be more expedient. So if the power to declare war is in the Constitution for Congress, is there a nuance that I'm missing as to what is war? Is there nuance because if it's in self defense, somehow the President can act? Or is this just a blatant violation? And if it is, what can anyone do about it? I mean, is it only Congress that can do something about it? By the way, as you know from the last time you were here, we only ask compound questions.

[Mary McCord]

Yes.

[Andrew Weissmann]

Okay, I'll try to start at the front and work my way through those. They're all very important. So you're right, Andrew. The Constitution is extraordinarily clear on its face that it is Congress that has the power to take the country to war. And it's not just the actual declare war clause, which these days is more effectuated through AUMF's Authorizations for Use of military force than declarations of war for reasons we don't need to get into. But it is Congress that authorizes the President to use force through AUMFs. And it's not just that authority. There's a host of other war related, war adjacent authorities that are given explicitly to Congress in the Constitution that are intended to ensure it's Congress that actually also polices those slippery slopes into war. And that's important because the founders recognized, right, that there are a lot of situations where war can be something you walk into backwards. And they didn't want that to be something that the President controls either. So they put a lot of power in Congress's hands with respect to war. But they Left in Article 2, right, a sort of understanding. And this is implicit, it's tacit, it's not even stated in the text of the Constitution, but it's read in through a couple of clauses, most notably including the Commander in Chief clause, that the President does have the authority to repel a sudden attack on the United States. And that's your self defense question, Andrew. It's when can the President act if Congress hasn't done so yet, when can he use his unilateral authority in Article 2 to use the military's armed forces? And that answer historically was to repel sudden attacks. But even then there was sort of a, a little bit of a gray zone around that of other similar types of things, maybe rescuing US Nationals in peril abroad.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Right.

[Andrew Weissmann]

Think today of situations like a hostage rescue, an embassy evacuation. Those are on pretty solid ground as consistent with even the more historical understanding of what that zone of presidential authority was in the absence of Congress having acted. And I'll note that even for those types of things, right, if the President was repelling a sudden attack but wanted to engage in what was actually going to become a war, he still went to Congress. And that's what happened post 9 11, right. So even W. Bush, right, went to Congress right after 911 and said, I need the authority for what's going to be a full fledged war. This isn't going to be, I'm just going to take all the US nationals out of Kabul. It looked very different than that. So the question for executive branch lawyers over the decades was how do you craft a theory around what that set of circumstances is where the president can act unilaterally? And over the decades, what you got was DOJ's Office of Legal Counsel crafting a set of opinions. That short version got broader and broader and broader as to what the president can do unilaterally without going to Congress.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Can I just interrupt you just to make sure people understand that those Office of Legal Counsel broader and broader and broader memos happened under both Democratic and Republican administrations. I just want to make sure people understand it's not unique to one party or another. Is that fair in your experience?

[Andrew Weissmann]

Correct. I would say there was a. Prior to Trump, there was actually a high watermark in the W. Bush administration as well. But certainly the case that Democratic presidents have stretched this theory broadly as well, and that both parties can share blame, as can both. Right. Co equal branches of government. So Congress is not blameless here, but it did in 1973 with the war Powers Resolution kind of try to right the balance. And it said explicitly that the president only has the authority to use force in these kinds of defensive situations.

[Mary McCord]

Right.

[Andrew Weissmann]

To protect a nation from. From armed attack, imminent armed attacks. And that's not one of the kind of operative phrases in the War Powers Resolution that's seen as having teeth, but it certainly reflected Congress's understanding as recently as the 1970s.

[Mary McCord]

Just before you move on, just for listeners, there is actually a provision of the War Powers Resolution that says the constitutional powers of the president as the commander in Chief to introduce the US Armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances are exercised only pursuant to. And they list three things. One, a declaration of war. Right. That would mean by Congress that hasn't happened. Two, specific statutory authorization. So something like the aumf, the Authorization for the Use of Military Force. Or three, to your last point, a national emergency created by attack upon the United States, its territories or possessions or its armed forces. And the reason I wanted to read that is there's a lot of stuff floating out there in the Internet and social media sphere that suggests that this doesn't exist in the War Powers Resolution. And now some administrations have argued this War Powers Resolution is unconstitutional and Congress can't put those limits on and those kind of things. And I'd love to be able to get into that. Maybe we can't, but like it is there.

[Andrew Weissmann]

Yeah. And short version on that is that most presidents have accepted the overall constitutionality of the War Powers Resolution while quibbling, for example, with perhaps the Termination clock and prior to the law having changed in a lot of ways in this regard to the joint resolution mechanism that enabled Congress to cut off uses of military force by the President without enacting a law that gets presented to the President for signature or veto. That's all changed. Now. You do need to present that to the President for signature or veto and you need a supermajority to override it to cut off a war that the President has started. But that's backwards land, right?

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Yeah, yeah, that's. We're not there yet. Maybe a way to frame this is in your view, is the war that has started. Do you think it is a war? And do you think it is a violation of domestic law? And if you don't know the answer to that, not because you don't have the intellectual heft we know you do, but are there facts that you would want to know that have not been revealed yet that could change your view one way or the other?

[Andrew Weissmann]

So yes, yes and yes. Let's start with it's a war and there's two ways in which it's a war. And this gets used as a term of art. So let's just unpack this very briefly. First of all, it's a war in the international law sense. When two countries, armed forces are engaging each other in hostile acts like this, when there is bombardment of another country, it is very clearly a war as far as international law is concerned, triggering application of say, all four Geneva Conventions and other law applicable in what's called an international armed conflict. So there is no doubt.

[Mary McCord]

Right.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Because we have nation states here. I mean, a lot of times we're not dealing with a nation state. And the work that Mary used to do at the National Security Division, she was not dealing all the times with a nation state.

[Mary McCord]

Yeah. We were battling a foreign terrorist organization. Right. And this is. And that's also part of the issue with the strikes in the Caribbean Sea. Right. That's not about nation states. This definitely is.

[Andrew Weissmann]

And it's not actually an armed conflict, whereas this absolutely is. And the threshold for being in an armed conflict or a war is much lower when it comes to nation states than when it comes to non state actors for a host of reasons we don't need to get into. But this is clearly a war in the international law sense of the word. Now, DOJ's Office of Legal Counsel has to. Your point, Andrew made a simple thing complicated for us by using war as this weird domestic law term of art. And they have this test and to be Clear. I'm really glad, Mary, you read from the War Powers Resolution because Congress has a view on when the President can act unilaterally. They're not acting from a blank slate here. There's the Constitution itself. There's the practice after it for decades that was consistent with that view of let's just read the text, right? That did shift over time. There's the War Powers Resolution. So you can look to plenty of places to find that Congress does in fact have a view, but the executive branch has a view too, and they speak louder and they speak often after having put the US Military into the air or the high seas or even the boots on the ground. And so that voice is very loud. And here's what that voice says, right? It says, well, the President has the authority to do more than repel sudden attacks. Clearly, it's when the President can act unilaterally without going to Congress. It's when these two things are met. It's when there's a sufficiently important national interest, Part one and part two, when what the President is doing with the military doesn't constitute, quote, war in the constitutional sense. And here's where they've made the word war into this strange domestic law term of art where it's squishy and it's hard to pin down its meaning. But what they mean by that these days, and sorry to back up the reason they said that is because even OLC acknowledges that Article 1 of the Constitution still exists.

[Mary McCord]

Right.

[Andrew Weissmann]

There is still a declare war clause. It still goes in the Congress column, not the President column.

[Mary McCord]

So they're trying to stay out of the Congress column by saying this is not a war in the constitutional Article one sense.

[Andrew Weissmann]

That's right. So a war in the constitutional sense, in their view, is one that gets you back into column one where you have to go to Congress. But if you want to stay in column two and the President can act all by himself, you just have to argue that it's not a war in the constitutional sense. Right? So now you can see that while Article 2 gets bigger, and I'm sorry,

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

but I'm going to channel like my inner non lawyer because right now I'm one of the courses I'm teaching is for 1Ls, and I love teaching 1Ls because they still come at the law with a lot of they're not channeled yet into this kind of stuff. They're still thinking big picture. How is one country bombing another country? And I thought the President of the United States said this could last for weeks. And how is that not a war?

[Andrew Weissmann]

So it absolutely is. And when you look at executive branch precedent going back, I think there's been too much made, in fact of the squishiness of the OLC test because of the way it's been loosened in very recent times. Right. So the OLC used to look at things like whether you're using force against a nation state or non state actors.

[Mary McCord]

Right. Check, Check.

[Andrew Weissmann]

Right. Whether there's a risk of escalation.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Check, Check.

[Andrew Weissmann]

Whether there's a risk of US casualties. Check.

[Mary McCord]

Done.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Done.

[Mary McCord]

Already happened.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Right.

[Andrew Weissmann]

Whether there might be a prolonged duration as opposed to a much more limited use of force. Things like these. Kind of.

[Mary McCord]

Check.

[Andrew Weissmann]

Right. Over the horizon, one off strikes.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Right.

[Andrew Weissmann]

Check. The likelihood for a full scale regional conflagration.

[Mary McCord]

Check, check.

[Andrew Weissmann]

Checkmate is my point. Right. So there's no world in which this is not a war in the constitutional sense, even according to the Executive branch's extraordinary elastic test. And what they've done is driven a truck through it by saying, well, since it was always just factors, maybe we can always still find one factor that isn't met. I don't think you could even do that in the Iran case, quite frankly. I think that's why I think, Mary, to your initial question, we've crossed the Rubicon here into there just not being a test. Because if this isn't war in the constitutional sense, such thing does not exist. And I'll just note that Brian Egan, my boss, when he was the legal advisor to the nsc, subsequently State Department legal advisor, we wrote a piece last summer when the US was bombing Iran in more limited circumstances than these and said if this isn't war in the constitutional sense, we don't know what is. Yep, we're past that now.

[Mary McCord]

Yes.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

So is there a legal justification? What's the best argument? Because it doesn't sound like it's not a war. Even if you go down there, that seems like it's off the table for all the reasons you just articulated.

[Mary McCord]

Right.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

What is the argument? Is there a self defense argument? We've been hearing inconsistently, to Mary's point, this sort of. Well, there was some sort of imminent attack and if it wasn't on us, maybe it was on Israel. If Israel attacked, then Iran would attack us. Is there some self defense argument being made and can it Plausibly made and maybe to my question, what facts would you want to know, if any, to decide that?

[Andrew Weissmann]

Yeah. So we're getting into international law now, but just to close off that domestic law Question. It being self defense is interesting. The fact here that this is a war in the constitutional sense means that even if it is self defense, if the President wants to be in a full fledged war in the constitutional sense, he still needs to go back to Congress for authorization. But it's pretty clearly not self defense. Right. And that takes us to international law land. And to your question, Andrew. So when can a state use force against another state? This is not a new question in terms of the boundaries, of it being notoriously difficult, but Trump has just blown through those boundaries so boldly, so many times now that there's not a gray area here where we're really struggling to wrap our heads around it. It's just quite clear. Right. So he and his senior most advisors, including Stephen Miller, have said things about strength, force, power. Right. As opposed to the niceties of international law that make clear they want to take us back to before the UN charter. Right. Before states following World War II got together and outlawed the use of force as an instrument of international policy. They want to take us to some really dark ages, right. Some really dark times when civilians didn't matter.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Pre law.

[Andrew Weissmann]

Pre law. Because this body of law has been developing for centuries, by the way. It crystallized in that post World War II era, but it's been developing for centuries. They want to take us back to this time when you can destroy another country's population, you can kill civilians, you can install a puppet leader through the use of force. Right.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

So under that theory, what Russia is doing in Ukraine, I mean, this is goose gander time.

[Mary McCord]

What China might want to do with respect to Taiwan, I mean, the press here is extremely dangerous, Right.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

We have no ability to say what's happening to Ukraine is a violation of international law. It is something that is wrong.

[Andrew Weissmann]

Right.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

If we are saying here that might makes right.

[Andrew Weissmann]

Well, and let's be clear, you know what Germany did to Austria and Poland and right. This is, that's World War II if you want to take it back there.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

So add in a whole host of other countries.

[Andrew Weissmann]

Yes, exactly. So the thing that they're sort of hinting around at that is not just a naked might makes right, therefore we can do it thing. The reason they're using words like threat and imminent and defense at all, and they're doing it in a kind of a legal mad Libs kind of way. But it's because there are two exceptions, right, to the bedrock prohibition in international law against the use of force, and those are with UN Security Council authorization, which is not at issue here. Or in legitimate self defense. And what self defense means is that there has been an armed attack or is there's an imminent threat of armed attack. That's where the word imminent comes in here. But you still need that armed attack, right? There still needs to be an armed attack that's imminent and that it has to be necessary and proportionate to repel that attack using military force. So if non forcible means would be sufficient, you don't have a self defense case. So there's a lot of questions that I'd want to ask and we published some of those last night with Ryan Goodman and Kate Brannon at Just Security

[Mary McCord]

and those will be in the show notes folks, because that does lead us to our ultimate question. I wish we had so much more time, which is what can be done now if like you say the President is sort of blowing past domestic law, blowing past international law, except to do the mad libs of self defense? And one question I have is, is building back nuclear capability an armed attack or an imminent threat of an armed attack? I think the answer is no. But that's one of those. So where are we now? And I think that's why you publish those questions because it's kind of now in Congress's hands, Right?

[Andrew Weissmann]

It's definitely in Congress's hands. To be the primary actor in the system that enforces public law. That includes domestic law and international law. It means the Constitution. Right. And the UN Charter rules that we signed up to for a reason. It's Congress and it's the people. We can come back to that in a minute. But what are the things that they need to enforce? Right. So it's very clear here that there was not an imminent armed attack against the United States. And to your point, Mary, very important for listeners to understand that having a weapons capability is not the same thing as there being an imminent armed attack. Who has nuclear weapons on this planet? Raise your hand. Well, we have to raise our hands, right? Are they pointed at other states? Sure are. Right. Could we destroy the whole globe times over with our nuclear weapons and ballistic missile capabilities? Of course we could. Does that mean that any state that feels adversarial towards us could bomb us at any moment, decapitate our leadership, et cetera? Right. So it's absurd.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Nor should we want the rule to be if you are operating in a rule of law system where you wanted people to act out of principle and not out of a might makes right

[Andrew Weissmann]

view of the world. That's right. And just to be clear, the principles underlying the UN Charter system, the prohibition on the use of force and the principles underlying our constitutional system. Right. You don't have to be an originalist and you don't have to be a strict textualist to say no. It's those principles that really still matter. And if anything shows why those principles matter. Right. It is this situation that we find ourselves in where the President has taken the nation to war without asking any of these questions. So let's just briefly touch on some of them. Why are we doing it? What is the goal? We don't know. What is the end state that's desired? What are the off ramps and the exit strategies? What does the President hope to achieve with respect to this use of force? What made it necessary? Because if it was a ballistic missile threat, that's certainly not the war that they then engaged in. Right. They went straight in for Khamenei in the first strike. That's a regime change war. It's not a war to take out a ballistic missile pointed at your bases in the region. And if anything, you know, folks are saying, tactical success, they killed all these people in the first round. You could also look at it as a strategic failure. Right. That they started with the people and not with the missiles, which again puts the lie to the kind of war that they were trying to launch and why. So there's a host of questions about what they're doing and why that are completely unanswered.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

That sort of goes to the issue of what is success? If you don't know the goal, what is the purpose and how will we know we achieved it? And that, I have to say, goes to both an issue of the lack of accountability of the executive branch, not actually articulating one consistent position to the American people as to what they were doing and why, and also the legal basis for it. If they're not complying, they're just saying, we don't comply with the law. They owe us that explanation. But it also is Congress. They have the tools. Just to quote Robert Jackson, he said, we can give you all the tools, but the tools belong to the person who uses them. And we can stand up for your rights. But if you're not going to use your rights, it's all for not. I just want to give you a quick shout out for the work that just Security. Tess is one of the co managing directors with Ryan Goodman. The piece that she and Ryan and Kate Brennan put out, which is a long series of questions, is so good. It is such a wonderful way for everyone who's listening to Learn more about these legal issues and the facts that have not been provided. But I also would say to the extent that reporters are listening to this and people, staff or members of Congress are listening to this, it is such an invaluable piece to be. These are the questions you need to be asking if you're a reporter. These are the questions that if you're in Congress or Stafford of Congress that you need to be demanding answers to. So thank you so much.

[Andrew Weissmann]

Oh, no, thanks for that, Andrew. And we do think that these are a really important set of questions and I want to emphasize they should have been answered before the war began. Most of them, a number of them are the kinds of things. And back to your allusion to the Situation Room, Mary. I mean, we would not have undertaken anything like this in any past presidency, Democratic or Republican, without a long considered interagency process. And again, there would still have to be a self defense rationale and you'd have to go to Congress. But assuming you were getting into a campaign like this or looking back at the counter ISIL campaign, for example, you don't get into this kind of thing, you know, not knowing what the plan is, not having worked with regional partners, not having a plan for civilian evacuations in the region, not having a plan for what the day after looks like in myriad ways. And they haven't, not only haven't considered any of those things, they don't seem to care. The cavalier nature of this is really striking except for some folks who still seem to have both the rule of law and also the risks to American, American service members. Right. To others. Right. It looks like General Kaine raised some important questions prior to these strikes beginning about the risks and the reckless nature of what this unleashes in Iran, in the region, for the United States, for Europe, for our economy. There's a whole list of questions there that it's not too late to be asking those questions, demanding real intelligence, verified answers that make the case to those members of Congress who are still willing to listen to reason that we need to find an off ramp now. Okay, he did do it. The dam has been broken. That doesn't mean you can't stop before it spirals further. And I think it's really important that we don't just throw up our hands and say, well, it's futile because he's done it. There's gotta be a way out and the sooner we get out the better.

[Mary McCord]

And Congress does have the power of the purse and some other powers. And Tess, this has been fantastic discussion. We've been on like warp speed in it and there's so many more things we can talk about and per the President and the Secretary of Defense, we will be talking about this for a while I think, and we would love to have you back on in a future episode as we see what develops and we have so much more that we could add. Thank you so much.

[Andrew Weissmann]

Always happy to join you both.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Thank you so much Tess.

[Andrew Weissmann]

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[Andrew Weissmann]

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[Mary McCord]

Welcome back. As we switch gears now, Andrew, one of the things we have talked with Tess about and that we have talked here on this podcast about is particularly with respect to immigration, that the enforcement and particularly the heavy handed use of excessive force targeting of protesters for engaging in First Amendment rights. This is something that the American people don't support. The polling has been very, very clear and I think that's one reason why the Minnesota surge ended was because of that lack of support and not just by the American public, but also many, many, many rulings against the government by judges there. And at least based on the initial polling, and obviously it's only been a couple days, I don't think the Americans support us going to war with Iran. And that can be the voice that is louder than any legal arguments that we can make because it does, as we've just been discussing with Tassels and as we are going to discuss with respect to immigration enforcement. In many ways, this administration is just ignoring the law, but it can't ignore the American people.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

I agree. I do think that the through line to the immigration cases that we're going to touch on because there's so many that we can't possibly explicate all of them, is this idea that we are dealing with a regime that seems to at least best be giving lip service and at times not even both in what we just talked about in the international context. But now we're going to take it into the domestic context. And it is not from me, it is from judges all around the country saying, you're not following the law. And this is one where I do think what the American people think and what the law requires do relate to each other because it turns out that people on immigration have a view which is that's not what we signed up for. It's one thing to get out the worst of the worst from the country where you're saying, oh, if they actually are a violent felon and they shouldn't be here legally, then they should be deported. But with process, that does not mean you shoot Alex Preddy or Renee Goode. And it doesn't mean that you detain people who are not a danger and a violation of the law. And that's why you're seeing just so many judges react this way. But I do think what's going on is that the administration is banking on this sort of macho. We've got a big club. We take action. And forcing Democrats and the rule of law people, whether they're Democrats or Republicans or Independents, to be viewed as somehow namby pamby, that they're somehow saying, hey, you can have all these policies, we may disagree with them, but you have to comply with the law. And that's where I think that Neil Gorsuch opinion and the end of it is so important because in so many ways this country is about due process. So with that, it's so interesting that we're just jumping to the big picture. And I think it's in many ways because what we're about to say and talk about they're new and they're not new, they're new cases, but they are just continuing to be repeated exhibits to the problem. I wanted to maybe just jump into a case out of, not Minnesota, but out of the Southern district of West Virginia. Yes, you heard that right, the Southern District of West Virginia.

[Mary McCord]

Although people will be familiar because we talked about a case out of that same district last week.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Exactly.

[Mary McCord]

By the same judge.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Exactly. And there he says he's talking about a particular individual. And he cites, by the way, numerous other judges who have made the same findings. And he says, how is it that I'm continuing to see people being locked up who should not legally be detained while yes, you can try and deport them and have deportation proceedings, but they are not legally allowed to be detained. And he says, after, I don't understand how this is all happening after this date. Certain when I have ruled, Judge Chambers has ruled. He goes through all of the other judges who have said, you cannot do this, you cannot do this. And he repeats it over and over on pages five and six. And he says, but yet even though by February 12th of this year, all of these different judges who said you

[Mary McCord]

can't do it, including me as a judge. Right, because what the other judges said as fellow district court judges would not be binding on you.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Exactly. And he says, but on February 12, 14th, 17th, 18th, 21st and 22nd, 2026, the government arrested non citizens already in the interior of the United States. And the government continues to wrongfully detain those petitioners without due process. And even now, the government incredulously asserts that the federal district courts do not have jurisdiction, that petitioners cannot raise due process violations, and that the government has authority to mandatorily and indefinitely detain noncitizens in local jails, the government is wrong. Judges in this district have said that over and over and over again. I have said it myself. And each of those overs he cites cases, the judges explicitly saying that. And he says rulings by courts unconstitutional issues are not advisory opinions. They are not suggestions, they are court orders. And he ends the opinion. You'd think it would actually say you're in contempt. It doesn't. But it says this memorandum opinion and order. So this decision serves as explicit notice to all officials, state and federal, involved in the detention of individuals whose cases come before the court. And it says, if you continue to do this, you can be subject to contempt of court and the exercise of this court's full inherent authority to enforce constitutional compliance, including contempt. So we'll see what happens.

[Mary McCord]

And there's something else important, too. He's putting even jail officials on notice that you could be civilly liable for violating due process rights. And that means you would not be entitled to qualified immunity. Now, we have not had an extensive discussion of qualified immunity on this podcast. We do need to do that. But generally a public official can claim they're immune from civil liability where they would personally have to pay money unless a constitutional violation was so clear that they really had to know that they were violating the Constitution. So what he's doing here is he's saying, I am telling you right now directly to you, yes, that this is a constitutional violation, so you won't be able to say, I didn't know it wasn't clear, et cetera. I think that's a big, big deal. And the other thing I think this is a big deal about this opinion is because he has footnotes to the attorneys appearing in court, the DOJ attorneys, and saying basically they're admitting that they are continuing to make the same legal arguments as, and this is a statutory interpretation argument. We talked about a few weeks ago about whether a particular statute that has never been interpreted to allow detention of those who are apprehended in the interior, whether it can now be interpreted to allow for those detentions, that's been rejected roundly, except for by the 5th Circuit. Guess what? We're not in the 5th Circuit in West Virginia. And counsel for the government, in response to one of his sister judges court's inquiry, said that the respondents, meaning the government, intend to continue to arrest and detain people in this district under the same circumstances and based on the same legal justifications that all four district judges to address the matter have found to be illegal and unconstitutional. Didn't your judge that they're basically like, we're just going to keep doing it until we get an appellate ruling, but that is not how this works. And he actually calls out the attorney in court and says, basically, you've been candid with me that this is what your clients are going to do. And I appreciate that you've upheld your professional responsibility obligations to be candid with me about this. So it's an extraordinary situation, but it's not unlike what we just saw in Minnesota as well when you talked about over and over and over again. There was a similar decision in Minnesota by a judge that is saying, we've had these habeas cases every single time we, we're ruling against you. We're telling you government that you need to let somebody out. You need to release them. You need to get them back to Minnesota. You need to give them back their property. And that is not happening. And she does the same thing. She says, you're coming to me. Government saying, we're so overworked. The lawyer in court, we're so overworked. Please give us some grace here. Because something slipped through the crack. And she says the government asked the court to exercise its discretion and good graces based on the understaffing and oversized caseloads in the U.S. attorney's office. But since the beginning of Operation Metro Surge, the government has offered that excuse to this a court again and again and again and to other judges in this district again and again and again and again and again and again. That's a quote. To excuse its oversights and disobedience of court orders in immigration habeas cases. And every again has a footnote, and that footnote cites a case. And so these are judges saying, you are just not complying with the law, and you must. And in this case, she held the lawyer in contempt with a fine every day until he could actually ensure that the person who had been released in Texas without helping this person getting back to Minnesota and had been released without any of his identification documents or anything, that those things had to be returned. Because can you imagine, you're released in Texas and you've got to get to Minnesota and you have no identification.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Good luck. Yeah, see ya.

[Mary McCord]

How do you get on a plane? How do you get a ticket? You have no credit card. You have nothing.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

This is the same version of what we saw with Abrego Garcia, which is not a responsibility. It's enough that we released you, having wrongfully detained you. The chief judge of the district court in Minnesota, the one who said that there were 96 orders that had been violated while the U.S. attorney there had said, oh, you overcounted, and I don't think that's right. And so the judge formed a bit of a committee, went through it and said, you're right, certain ones could be questioned. But they also did a fuller search. And instead of the U.S. attorney saying, I'm sorry, instead of saying, look, we have violated people's rights that we have to make do better, et cetera. Instead, it was quibbling around the edges of the numbers, only to have the chief judge say, yeah, well, guess what? We went back, and you know what we found? 113. 113 more orders that ICE has violated. So that's like, okay, really? You want to come back. And you want to tell us that we're wrong because you're right. It might be the count is going up. But what that judge is doing is that is why you are seeing the case that I talked to you about, that Mary just talked to you about. This is happening around the country. So if you don't think that we're in an administration that is just violating the law and not owning up to it and doesn't seem to be taking it seriously, everything we talk to you about with Tess and the issues raised there that you're seeing internationally, judges are seeing here with real life consequences to people. And just to be clear, as we talked in the past, these are not the worst of the worst. Don't let people fool you and think, oh, they just want to detain people who are murderers and rapists. That is not what's going on. And the alleged change in the law is not targeted at that group of people. And so you're seeing that kind of lawlessness. Mary, should we talk briefly about one other example? It's in my hometown of New York City where another student was detained. And this is a bit of a bookend to something that happened months and months ago when this issue first arose. But this is a case where Elmina Agajeva, and I apologize if I am screwing that up. So she is a student at Columbia University, and the acting president of Columbia went on a video disseminated widely, including to the entire Columbia University family, of which I am part of, having gone to law school there. And it's a wonderful video where she says what happened was that when DHS showed up at the Columbia facility, the dorm, to gain access. She says now DHS denies it. I don't know what proof they have because we haven't seen any contrary proof. So they say it didn't happen. But remains to be seen whether they have contrary proof. You would think if they wanted to be sure, they would have videotaped it and had a recording to show what they did. But according to the president of Columbia, in order to gain access, they said they were at the facility and they wanted to gain access to a private dorm. In other words, not a public dorm. This is a private facility, saying that, will you let us in? Because we're here looking for a minor

[Mary McCord]

child, a missing child.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Yes. And so they gained access, according to the president, through false pretenses. Just to be clear, the way that you can get onto private property if you're a government actor is either consent or you need a warrant or there has to be some unusual exception, like a real emergency that is going on. This wasn't any of those things. This was getting consent through false statements, if the president is correct. And it was a huge, huge deal.

[Mary McCord]

Yeah, let's talk about that. Because voluntariness is a key part of consent. And so the question that this raises is, if you get that consent, does it matter if it was based on false pretenses, if it was a ruse, if subjectively, the officers getting the consent had a different motive for why they were seeking it than what they told the person who gave the consent? And decades and decades ago, the Supreme Court that said under the Fourth Amendment, consent to a search of private property must be voluntarily given and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all of the circumstances. Now, it is the case that a ruse or false pretenses alone does not necessarily mean that consent is not voluntarily given as the law has developed. But it is one of a set of factors. And very often in cases where this argument is made, it really is the dispositive factor, the factor by which the courts conclude could not have been voluntarily given because you lied to the person, you lied to the person who gave you consent, and you lied about what it was.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

In a material way.

[Mary McCord]

In a material way. Right. And so the question here, if this were to be something now, again, it does not appear that the student is being prosecuted now, who knows what else might happen? Doesn't appear that she is even right now in more proceedings. I think that's pretty unclear. She was released, I think, the same day. But the question would be, given this ruse. Right. Given the misrepresentation, serious ones, Right. We're searching for a missing child. I mean, that's a pretty serious misrepresentation. If it's a misrepresentation, and again, that fact is in dispute, the question would be, is it really a voluntary consent?

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

This is how this administration, if what the president has said of the president of Columbia said is true, this is an example of how this administration is treating higher education institutions to lie to them in order to arrest a student. Now, the student was released. Ultimately, after Columbia spoke with the governor of New York, they spoke to the mayor of the city of New York. It's been reported that the mayor spoke to Donald Trump personally. And ultimately the person who's released, it shouldn't take that. This is not sort of, oh, noblesse oblige where the king dispenses the favor to release somebody who is if they were improperly arrested. You don't have to seek the sort of approval of the king to get it undone. I mean, the whole thing so, so unseemly that that is how this has to get resolved when it shouldn't have happened to begin with. Final note, we mentioned Abrego Garcia, just briefly, the hearings are ongoing with respect to his claim of vindictive and selective prosecution. There was a witness that testified, several witnesses, yes. We don't have the transcript of that. And so, you know, we want to read it carefully. But there's no ultimate decision yet from the judge. There may be more hearings. So stay tuned for that. We just wanted a flag for you that that is ongoing and don't worry, we have our eyes very much on that case. But we also want to read exactly what happened so that we can tell you sort of our take of the exact testimony.

[Mary McCord]

So how about. Let's take a break. When we come back, we will talk about the government's about face and dismissal of its appeal of all of the injunctions against the orders blacklisting law firms. And we will also talk about a ruling in the case involving a seizure and attempted search of a Washington Post journalist, all of her devices supposed by the government and what the court had to say about that.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

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[Andrew Weissmann]

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[Mary McCord]

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[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

So, Mary, you mentioned that with respect to the four executive orders at the beginning of the second Trump administration, the four executive orders with respect to four law firms, the ones that were challenged by these various law firms, they were all at the district court level. They were all unanimously struck down as violating the First Amendment. And they had some slight differences as to the breadth of the findings. But all of these executive orders were found to have been taken because of the First Amendment activity of the law firms. I should just note that one of them was. I was named quite prominently in one of the executive orders, the one with respect to General and Block. That was also one that was struck down. That decision by Judge Bates actually found that my personal First Amendment rights were violated by the executive order. I wanted just full disclosure because normally I don't like to be part of a story, but I just want to make sure people are aware of that. So after those four executive orders were struck down, the government took an appeal. Well, just like a New York minute ago, the government has withdrawn and dismissed its appeal.

[Mary McCord]

That's right. And just to go back, these were orders that were targeting law firms based on attorneys they had employed. That was your situation. Exactly who were attorneys they perceived to be adverse to the Trump administration administration causes that they had brought, in other words, lawsuits and things that they had brought that challenged the Trump administration and really just targeted at those law firms that it just disagreed with. It didn't want them doing these things. And what the blacklisting did, and the reason I call it blacklisting, is it directed the government to not let those law firms or lawyers at those law firms into government buildings, which if you have business with the government, as many, many lawyers do, you've got litigation against the government, you've got a contract dispute with the government. There's all kinds of times where you need to go meet the government in a government building. It also cut off federal government agencies in many cases from even having contracts with those lawyers. And it also took away security clearances from lawyers at those law firms. So when I say blacklisting, it's because this combination of things was meant to drive these law firms out of business. And so four of them challenged it. It was Jenner and Block, it was Wilmer, Cutler, Pickering and Hale. It was Sussman, Godfrey, and it was Perkins, Coey. And each one of those law firms that challenged this, they first went in on an emergency TRO. They got those TROs from four different district court judges in record time, sometimes in a matter of just hours. The latest, I think, was a day after that. Proceeded then to final judgment in each of those cases, because those were temporary restraining orders. Proceeded to final judgment. The government took a long time before it decided to appeal. It noted its appeals in those cases. Its briefs would have been due this Friday. And every single judge, and we've talked back at the time that these things were happening, was so strong in their language about how this violated the First Amendment rights of these lawyers and law firms, because the practice of law is part of the First Amendment. It is speech. And they also talked about what damage this would do to the adversarial system, because what the effort here was to not just put those law firms out of business, but to chill other law firms from representing people or causes that were opposed to the administration. And we both know that there are a lot of firms who really change their pro bono practice after that and just change their practice more generally to not take on people and causes that were challenging the administration. A lot of that fell to nonprofits. It fell to state attorneys generals who've been doing most of the litigation as opposed to the law firms. And that is all about making sure that when you're in court, there is nobody on the other side. Right?

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Exactly.

[Mary McCord]

There are lawyers representing the government, and they really want to make it so. The adversarial process is really frozen. So this, I think I would love to have heard the discussions in the Solicitor General's office about why they needed to dismiss this appeal. I would almost certainly opine that the Solicitor General, John Sauer, realized these were going to be big losers in the circuit. There's no way they were going to prevail on this, and certainly not something they would want to take to the Supreme Court and lose there, because they just started a little bit of a losing streak. I guess it's not a streak with one case, the tariffs case, but still, first merit's case of this administration was a big loss for the administration, and

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

this would be very, very ugly. So quick thing for people to understand is the way that cases that are challenging administration actions, very often a pro bono group or an NGO is supported by a big law firm, and they do a lot of the legwork. They can have very big substantive roles, but a lot of the backup work. And so you have that marriage. The result of these executive orders, although unconstitutional, uniformly, no judge found them to be constitutional. Absolutely struck down is that it's a number of Things one, as everyone knows, a whole series of big law firms, primarily big law firms with large corporate practices, caved and agreed to various types of settlements to give a certain number of pro bono hours in the millions to the executive branch. So you've gotten a lot of public attention to the law firms that have caved. And the New York Times has an editorial today naming them all and calling out what happened here and talking about how abysmal those firms look. But what you don't see is that behind the scenes, lots of law firms, especially large law firms, have also caved. They haven't been called out, they haven't received the publicity, but they're no longer willing to be publicly seen as opposing the executive branch. They might do the work behind the scenes and off the record. In other words, to say, as long as we're not filing a notice of appearance and publicly seen on the case, where we may help. But big law firms are basically have taken themselves off the field. And that means for law firms like Covington and Burrowing, they deserve a ton of credit. Law firms like Munger Tulls deserves a ton of credit because they are there voting with their feet. They are publicly representing people.

[Mary McCord]

The firms that challenged it. Right. They represented those law firms.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Exactly. But it is useful to know that the group of law firms that have basically engaged in appeasement, I call the Neville Chamberlain law firm. It goes way beyond just the group of 10 or so big law firms that have caved. There are lots of firms that just decided, I'm going to keep my head down so that we're not targeted. And that has had really dire consequences to the legal profession, as the judges pointed out, has had real dire consequences in terms of the courts being able to see and have forceful advocacy on whether a particular program by the executive branch is constitutional or not. It really fits very much with what we've been talking about with Tess and what we talked about in the immigration context, because this really undermine so much of the legal profession. And they're not willing to even say in an appellate court we're right in terms of what we were willing to do.

[Mary McCord]

Because they're not right.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Exactly.

[Mary McCord]

Well, everyone, it's Mary again. And I sound different because I am not where I was when we recorded this episode. But there is late breaking news that directly affects the last piece of our segment, and that is that apparently after the Department of Justice actually filed the motion for voluntary dismissal of its appeal of the four different cases involving the blacklisting of the law firms, they have now reconsidered and the reporting is, and this is not confirmed with any filing in court yet, but the reporting is that the administration is changing its mind about that and is planning to actually file a motion to withdraw its notice of a voluntary dismissal and seek additional time to file its opening brief again on appeal of the unanimous decisions of four different judges involving four different law firms that the executive order blacklisting those law firms was a First Amendment violation. So we'll see if they file this or if they don't file this. But that's our late breaking news.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Should we talk about our last topic?

[Mary McCord]

Yes. So we talked a couple of weeks ago, I think, about the seizure of all of the devices, laptops, cell phones, even, I think like, you know, an Apple Watch or Garmin Watch, the kind that is connected up to your cell phone that has data on it of a Washington Post reporter, Hannah Natenson. She is somebody who had been very active in reporting on the impact on federal government employees of the firings and the retaliation, the destruction of federal government agencies. And she had openly put herself out there as someone that federal government employees could reach out to privately, confidentially, over encrypted forums like Signal to provide information to her. And the government executed a search warrant, seized these devices based on its allegations that there was probable cause that classified information, national defense information, had been shared with this reporter by another person, another person who is now facing criminal charges, who was working with the federal government for the federal government, and who's alleged to have leaked classified information to Ms. Natenson and maybe others when he's not entitled to do that. Right. So nothing about this suggested that she had committed a crime, that there was probable cause that she had done anything wrong, but there was probable cause that evidence of the crime that this other person committed would be found on her devices. Now, that is not an unreasonable thing to seek to obtain. And this is one of the things now, when the judge ruling on the Washington Post coming in and saying, hey, hey, hey, we want to get all these devices back. This reporter had a First Amendment interest. The government can ask by subpoena for anything that's classified, and we can provide it to the government, but she should get all these devices back. The court, I think, fairly carefully weighed things here, and we don't have time to go into everything of this opinion. But the court said, you know, we've got two interests here. We have a very, very strong interest of the press in the First Amendment, the ability to report, the ability to engage in speech, et cetera. But we also have the government's interest in tracking down where classified information may be that it shouldn't be and prosecuting if there is a prosecution. So the judge, I guess we could say sort of split the baby by saying we're not going to give you all the devices back. Washington Post but government, we're also not going to let you be the one that looks through all of the devices, even with a filter team. And we've talked about filter teams before. The government said, we'll come in, we'll have a team of attorneys look through everything. They will only filter out for the prosecutors those things that are actually responsive to the search warrant. In other words, evidence of classified information being improperly shared with the Washington Post reporter. We'll filter everything else out. Trust us. And I will say, and I'm sure you would say, Andrew, that many times in my career when we had seized devices or files, and oftentimes this happened, if you were seizing things of an attorney because you needed to make sure there was no attorney client privilege material that could get through the prosecution, you would have a filter team of DOJ attorneys that would filter that out and make sure the prosecution never saw it. You would explain that protocol to the judge and the judge would approve it. But here the judge is like, not so fast. There's so much information that you have seized. You know, she's been soliciting information from government employees for such a long time. And you've already government retaliated against government employees who have spoken about what's happening. And the perception if I were to leave it to the government to do this, filtering is not good. And here's what he said, and then I'll stop talking and turn it over to you. Allowing the government to search through the entirety of a reporter's work product when probable cause exists only for a narrow subset would authorize an unlawful general warrant. Moreover, the appearance problem identified in another case that talks about the appearance problem is amplified here given the documented reporting on government leak investigations and the government's well chronicled efforts to stop them. Meaning leak not just of classified, but leak of any information right about firings and retaliation. Allowing the government's filter team to search a reporter's work product, most of which consists of unrelated information from confidential sources, is the equivalent of leaving the government's fox in charge of the Washington Post's hen house. The concern that a filtered team may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom Values at stake. And so the judge concludes, the court will do the filtering here.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

And this is yet another decision where the court says the presumption of regularity essentially is just not going to be adhered to. We saw intimations of that in the tariff decision. We saw it in the immigration material. Same thing. Quick comments on what the judge did here. Essentially, the court is saying, look, there's some quantum of evidence that is relevant in your entitled to government, which is the communications between the target of the investigation, who actually has since been charged, and the reporter. But there's a lot of surplusage, and it's that that we don't want you rummaging around. And essentially I don't trust you to rummage around. And so I am going to do that review myself. And you are precluded by court order from accessing that information. The backdrop to this case is, remember, this is the case where the government did not tell the judge, and it's this judge, the one who has signed this opinion, did not tell the judge about a law, the acronym is the ppa, did not tell the court about the PPA that had certain restrictions. And it's too complicated to get into exactly how it works. But the judge candidly says, look, the government didn't tell me about that law. Yes, I screwed up. I mean, the court is very good about saying, I should have found it. I didn't have experience with this. I had a very busy docket. But it's on me that I didn't find it. But that doesn't relieve the government of its obligation because it surely is aware of the law. And in footnote four, not only is it that the court says, you didn't tell me about this law, but even now the federal prosecutor stood up and said, I didn't have to tell you about that because our position, and I was told this, was that the reporter is actually a suspect. And when the reporter is a suspect, these provisions of the law don't apply. That is directly contrary to the government's position. Once this all blew up and the Washington Post and the reporter went to court saying, what on God's green earth happened? They were like, oh, no, no, no, no, you're just a witness. You're not a subject. And so the court lays this out in footnote four, that discrepancy where it really looks like this was a pretext, where the government said, well, we don't have to tell them about the law because we can always just say that the reporter is a suspect and get around it. But that interchange, that lack of telling the court about the law, that discrepancy as to how they view the reporter and whether they were using that as a facade to get around the law. That is why you see the court saying, you know what, I'll do the review. That's right, not you. In so many ways this is an episode about sort of the legal veneer is off. In each of these instances you are seeing the administration act in a way where at best it appears to be a fig leaf at the end for administration. That only does it because in case somebody is worried about it, here it is. But that's not what's animating them.

[Mary McCord]

Yeah, much more on that. This has been jam packed episode and we still didn't get to cover everything we wanted to. But time to wrap.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Welcome to every week of this administration. So thanks everybody for listening. Remember, you can subscribe to MSNow Premium on Apple Podcasts and you can get this show and other MSNow Originals ad free. And you'll also get subscriber only bonus content including a new premium episode from us and it'll be out before next Tuesday and we'll be looking at elections integrity heading into the midterms. And one personal note, you can now pre order my book out in May. The announcement went out yesterday on Substack.

[Mary McCord]

So exciting.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

I know it is. And so it's called Liars how to Stop Trump's Deceit and Save America. And we'll add a link in our show notes for where you can pre order it if you so choose.

[Mary McCord]

Yes, yes. This podcast is produced by Vicky Bergolina with production support from Donnie Holloway. Our associate producer is Rana Shabazzi and Colette Holcomb is our intern. Greg Devins II and Hazik bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the Executive Producer for Ms. Now Audio.

[Co-host (possibly a legal analyst or commentator, name not explicitly given)]

Search for Main justice wherever you get your podcasts and follow follow the series. Why have I asked my electrician I found on Angie.com to bury my pet hamster? I was so moved by how carefully he buried my electrical wires. I knew I could trust him to bury myself. Sweet nibbles after his untimely end. This is very strange. Angie, the one you trust. Define the ones you trust. Find pros for all your home projects at Angie Combination.