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Main Justice
Liar’s Kingdom: A $1.776 Billion Theft with No Disciplinary Consequences?
00:51:03
The reality of Trump’s “Anti-Weaponization Fund.” Plus: DOJ sues the DC Bar and oral arguments in the appeal over Trumps’ effort to blacklist law firms.
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A
Subscribe to MSNow Premium on Apple Podcasts for early access, ad free listening and bonus content to all of MSNOW's original podcasts, including the chart topping series the Best People with Nicole Wallace. Why is this Happening? Main justice and more. Plus new episodes of all your favorite msnow shows ad free and ad free listening to all of Rachel Maddow's original series, including Rachel Maddow Presents Burn order. Subscribe to MSNow Premium on Apple Podcasts.
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B
Well, hello, Mary McCord. Welcome to Main Justice. It is. This is so weird because not only
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C
are you seeing you, you're right, I couldn't touch you.
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B
We're in the same room. It is Monday, May 18th. I'm busy looking at a script, which by the way, is what we normally do, except that we are live. There are two things that, that are different today. One, we are actually in a room together, which is so lovely, which we've done for live audiences, but rarely have we done it in a room together. And the other people are going to see us. People are going to see us. And we never do the podcast where they can see us. So this is our inaugural YouTube, not just audio, but video. So we had to clean up for this.
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C
Yes.
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B
So. So this is one where normally people can see like I've got. We have a little script with our wonderful producer.
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C
The top and the, the intro and outro. As people know, we don't otherwise script things I cut and pasted quotes I wanted to use because I only have one screen, one laptop instead of multiple screens.
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B
So it's a challenge. This is, we're really challenged. And this is actually a lot more like when we do something before a live audience. So anyway, it's so nice to see you.
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C
Same, same. We have a lot. We have a lot.
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B
You know, that's so rare.
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C
I know it is. And actually, you know, we will start out with a shout out to your new book, which is I think the topic of this podcast, which is just lies, Lies, more lies. Not that your book is lies, but it is about lies.
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B
Absolutely.
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C
And we will start once we talk briefly about your book with what breaking news today, which is that this morning Donald Trump dismissed his $10 billion lawsuit against the IRS.
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B
Is that good of him?
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C
Would be. Except that he, you know, did that to avoid the court saying you don't have any case here and instead settled with his own Department of Justice based on a lie about. In many ways, I think based on a lie about Biden and his Department of Justice weaponizing the department. So he's going to create a 1.7 billion with a B dollar weaponization fund to pay people who apparently were victims. And we know exactly who that means.
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B
Wait a second. I'm going to speak for myself. So I'm going to put in a claim.
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C
Well, you are a victim. I mean we'll get that's topic too.
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B
So I, I, let's see. I have a federal judge who has found that my First Amendment rights were violated by this administration. Yes, that's Judge Bates. Yes, from and so but just to be clear, I'm being somewhat facetious, but there's tons of people who can legitimately say that because they have the facts and the law on their side here. What we're talking about, not to jump the gun and get triggered because God knows I would never do that. I mean, we're going to say that about everyone in January 6th who is criminally prosecuted and convicted either by a jury or from their own mouths. How is that weaponization?
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C
Well, that's the theme. Lies, lies and more lies. But you jumped already to topic two because the topic two is the oral argument in the case that involved the blacklisting of four different law firms in violation of their First Amendment rights. And very long argument, two hour long argument that was slated for 15 minutes per side. No one seems to care about time time lim anymore. They, they don't think about those of us who have to listen to it. Now I did listen to it at
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B
one point in I think we've been victimized again.
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C
I do too victimized. So I'm going to, I'm going to get a claim on that. Then we will talk a little bit about another sort of extraordinary suit. This is the Department of justice suing the D.C. disciplinary counsel to try to make him stop investigating Jeffrey Clark, who was of course a high level Department of Justice official in the first Trump administration who wanted to run with Trump's lies on our theme, lies, lies and more lies. Lies about the election to reach out to states and ask them to investigate election fraud. And so he's being investigated by the DC Bar and DOJ doesn't like it. So they're suing the DC Bar and
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B
I'm going to not be triggered. And I'm because I have so much I want to say about that. I think that's such an important thing to keep our eye on. It's like trying to remove one of the last checks, which is that people of the Department of Justice should be ethical. But going to our theme, it seems like maybe we should call this podcast episode, Liars Kingdom.
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C
Oh, gosh. Liars Kingdom, whatever could that be about? That, dear viewers and listeners, is the name of Andrew's new book launching this week. In fact, I did want to ask you a couple of questions. There will be one more segment if we get to it, on more lies. And that is about the continued efforts of Judge Boasberg to engage in contempt investigation going way back to the removal of alleged members of trend on planes to a terrorist detention camp in El Salvador. Again, why was he looking at contempt? Because he was worried he'd been lied to. Right. And the D.C. circuit panel put a stop to that. And now there's an exact, There's a theme there. Liars Kingdom. Okay, so this book, your book, really does go through the state we are in of just so many lies being told by politicians and in particular, of course, Donald Trump. But you started your introduction talking about a conversation you had had with your parents at lunch here in New York City, right after, I guess, you had finished up your stint with the Mueller investigation in the Mueller team and you'd come back to New York. And that was in 2019. And when I read that, that was actually one of the, I, I don't know, it's just really resonated with me. Like the things that your parents were worried about. One a scientist, one a psychologist. And, you know, why did you start there? I thought made it might be a good story.
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B
You know, it's funny, that intro is very, very personal. And even though podcast, by the way, I do and it's very personal. And one of the things that I've learned since leaving the Department of Justice is how to better communicate these things. Because, you know, this book is very much. There's a legal argument I'm making about what else we can do about political lies, but I needed to put it in context. And so I start with a conversation with my parents where, I mean, I still remember it. I asked them about at that time what their view was as to where we were in the country and comparing it to the McCarthy era that they lived through. And I still remember their take on it, which was that they thought that the McCarthy era was worse at that point, just to be clear, because I do a fast forward. And the reason they said was they said it's true that Donald Trump is the president now in 2019. He has obviously more power on paper than a senator, than a senator, Senator McCarthy. But they said the difference was that you were terrified during the McCarthy era because no one was saying anything. No one was speaking up, that you felt isolated and alone. And something that's now resonates so well, which is that you could be targeted and no one was going to come to your defense. But they said like you could feel in 2019 that half the country understood what was going on and was was vocal about it. Fast forward, we didn't see the caving of media companies, of major newspapers, of law firms, the complicity corporate C suites across the exact multiple industries, the end of like DEI universities. I mean, just the amount of complicity and caving is one where I said, I just knew that if I could have that conversation now with my parents that it would be a very, very different conversation. And that set the stage for. And I'm not going to, by the way, we're going to move on to other things. But it's. I wanted to think about and I wanted folks to think about structural things we need to do differently, that if we ever get out of this, we really have to think about on our 250th anniversary of this country, things that we have taken for granted, norms that don't work anymore. And if there's one, I won't say blessing. But one thing we've learned from Donald Trump is where the fault lines are in our current systems. And so I was trying to address and proposed thinking about what we might do about political lies. That is not the end all and be all. There are obviously many, many, many other ideas and things we could do. But I really wanted people to think about changes we have to have if we're going to continue as a country and not be an authoritarian regime.
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C
Yeah. And you know, you looked to other countries, Brazil, France, Germany, England, to see what had they done about these. None of them has a First Amendment the way we have a First Amendment, which, you know, if you didn't know it, spoiler alert. Like, it protects lies, but should it be able to protect a lie when we're talking about elections? Right. Politicians telling lies in elections. And is there a way, as you have proposed, if you're regulating not so much the person's speech, but what you have to do to qualify to be able to run for election? Maybe that's a way to get around some of the First Amendment challenges.
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B
And so probably the wonkiest part of the book is I talk about the sort of leading Supreme Court case on that and the fact that a whole series of justices say that there is no First Amendment protection itself for a false statement, that the reason you may protect a false statement is because of the spillover effect on the chilling effect on truthful statements, but that the false statement itself is not protected. And that, you know, what I go through is what I was thinking about is I was thinking about my experience, which you've had as a prosecutor. And I was thinking, God, I've prosecuted so many people for lying in Enron. The leaders of Enron lied about the state of the company. And it's like they're lying about just stock and they can go to jail. They were held civilly responsible. Rudy Giuliani was civilly held responsible for lying about Ruby Feedman and Shane Moss, the Georgia election workers. Roger Stone lied to Congress.
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C
Let's be clear in all of these, though. These are lies to a law enforcement official or lies to Congress or lies to a government agency. And that's the part. That's the punishable part.
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B
Exactly. And what I will say there is Enron officials lie to the shareholders. And so that's a public forum. And that is both civilly regulated and criminally regulated. So my point on that is just that there are lots and lots of ways that we deal with lies where we don't just say, oh, the remedy for a lie is just more truthful information. We actually do.
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C
Marketplace of ideas.
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B
Exactly. So that's part of the. I talk about that and sort of. But that's in some ways the least original part of my book. People want to sort of read more and learn more about this anomaly of like why we sort of leave. Leave political lies, you know, out in the wilderness to sort of fend for themselves. And you just sort of say, well, it'll come out in the wash. But we don't do that in so many other cases. One of the fascinating things that I learned was how many states not. I basically am dealing with states and federal government. And the federal government does, you know, nothing.
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C
Right.
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States are kind of like way ahead. So they're like England. So in England they have a law that's been on the books for decades and decades that if you lie about your opponent, lied not made a mistake, you have to intentionally lie, you can be pulled out of. You're barred from running for office. So one of the things I found fascinating in New York, which I'm from, as you know, the same statute says if you are currently a public official, not even just elected, but if you are a public official, elected or not, the same statute says that you are automatically removed from office. Here are two examples. If you die, you're automatically removed. And the other is if you've convicted of a felony Out.
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C
Yep. So if Donald Trump had been a public official in New York instead of the President of the United States. Well, there you go. He would.
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B
Exactly. So I love the theme that this is like liars kingdom, you know, but now we're going to apply it to what's happening today.
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C
Can I level set us on how we got to this today? And so much talk.
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B
Let's level set.
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C
We'll talk about the wave tops. You know, this time we're going to talk about more than the wave tops. Lots of like, DC Isms.
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B
We're going to go into a deep dive. Right.
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C
So Donald Trump, we talked about this a week or two ago, filed litigation along with, I think his sons and the Trump Organization suing the irs because a number, number of years ago at this point, a contractor with the IRS leaked information about Trump's and his organization's tax records, as well as other people unrelated to Trump, by the way, who have also sued. And you can sue, bring a cause of action for, you know, the IRS not taking enough care that for one of its employees to not leak information about, you know, someone's tax returns.
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B
And what normally happens when. Let's just say this kind of lawsuit happens frequently.
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C
Yes.
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B
And usually what does the department do? Do they give you $1.8 billion?
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C
They do not. They would make different defenses to that lawsuit. And maybe if you really did have a good case, they would ultimately settle. Pretty sure. Not for 1.7 billion. And let's just start with the 10 billion to begin with. Just a kind of pulled out of the sky, I thought, until I read
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B
a little bit more. Yes, this is a PG show stratosphere.
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C
His thought was, well, it was the New York Times who published the information and there had to be, you know, a million people. Right. Who saw that. So I'm going to ask for $1,000 per and, and ask for $10 billion. Was it a million or 100 million?
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B
Now, I'm not saying, just to be clear, leaking that information is bad and is wrong. But you then have the second issue, which is, I mean, there are all sorts of defenses. But even if you can get through all those defenses, what's the damage? Like, how was he harmed?
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C
No, he's the President of the United States now. Clearly it didn't impact the election.
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B
Exactly. And so what, like, was his reputation hurt? What is the harm to him?
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C
And he hasn't put in, you know, he really has never established that. So where we were before today was that a judge had said, I Am not sure that there is actually a case or controversy here because the President and the Department of Justice seem to be like on the same side and
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tell people though in case what a case or controversy is.
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C
Yeah, exactly. That means the parties need to be adversarial to each other. And so the doj, of course, was representing the IRS and she had, the judge had a question about whether there was really an adversary relationship here. Remember, the president's been very clear and he made lots of public statements about I'm sort of suing myself. I know it's kind of a real thing and that means I'm in charge of the settlement. So the judge had asked for briefing. She had appointed amicus Curie, so had appointed lawyers to brief whether that's a problem, whether the parties are actually ever serial and if not, maybe the case would have to be dismissed. And then she also asked the Department of Justice and the parties themselves to file a brief by, get this, two days from today. So at the end of last week and over the weekend, in came the briefs for from the amicus Curie, as well as other amicus briefs on behalf of former public officials, including a former IRS commissioner, a former head of the Tax Division, the assistant attorney general for the Tax division at doj, and also briefs by the amicus saying first that the court really needs to do a fact intensive inquiry to determine if the parties are adverse to each other. But then I think more importantly for my purposes, the amicus briefs from the tax officials were like, there are real defenses here. This lawsuit was filed late. You have two years to file. It's been known for years that this particular contractor leaked this information and other people have already sued and you came in too late. They're saying you can't use this suit against somebody who is a contractor and not an actual government employee. There's an argument also that the 10 billion is completely, you know, unsupported, pulled out of the sky or some other such place. And that you can't also have a Privacy act claim, which Donald Trump does, because the Internal Revenue Code says when it's a case about, you know, disclosed tax returns, you don't have a Privacy act claim, you have other remedies for it. And this brief points out that in those other cases suing about the very same leaker of their information, the government has defended against those.
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B
Exactly. So that to me is the key.
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C
Yes.
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That in those situations, the government has said no and now it's Donald Trump. And the issue is why go forward?
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C
So here we Are right. And this is before they're brief.
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B
And we said, we had said when we covered this, which is, oh, the judge is not playing ball. The judge is asking questions. And both of us had the same point, which is like, well, they don't even need the lawsuit. They can just do a private settlement.
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C
And that's exactly what happened. But it started first with them going into court, because the problem is if they didn't dismiss the case, the court might then get into kind of a looking into whether it's.
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B
And as a hook. And has a hook. Exactly.
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C
So first thing that happened this morning is Donald Trump goes into court, files a notice of dismissal under the federal civil rules, Rule 41A 1A1, which does not require court approval.
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B
This is why I love doing this podcast with you. It's like, I'm like, I know there's a rule and I know what it says, but I didn't remember that it's a one, a one, a one, a one, a one.
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C
And so you know why that's so important? Because people might remember when Emile Bove, I think, ordered the dismissal of the criminal case against Eric Adams. That's under a criminal rule that requires leave of court.
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B
Exactly right.
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C
And the court then appointed.
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B
But civil isn't civil. It's really unclear how the court has jurisdiction, because the civil rule seems to suggest that it's as of.
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C
Right, yeah. As long as the other side hasn't filed a response. And they have. And that's the entire point of their notice of dismissal. They said, we're not making it as a motion because this does not require. Require and cannot even you, as the court can't even review it.
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B
Now, there are potential legal remedies here and legal issues here, so we should all be keeping our eye on what Congress does, because Congress is the one who authorizes payments to the Department of Justice. As you and I know for years, when you're in the Department, you're very aware of the pots of money that have been allocated to. I mean, in some ways, when we're supervisors, that's a huge part of what you do, is think about what money is at my disposal and what can I use it for. Because there are all sorts of bells and whistles that Congress puts on what you can do. And so Congress can say, wait a second, this wasn't authorized for payments of something collusive.
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C
And by this wasn't authorized, we're talking about what we said at the top, which is this settlement. Because the next thing that happened today is, oh, we got a press release about a settlement agreement and it says the U.S. department of justice today announced that as part of the settlement agreement in President Donald J. Trump vs. Internal Revenue Service, the attorney general established the anti weaponization Fund to provide a systematic process to hear and redress claims of others who suffered weaponization and lawfare. And they do make clear, just in
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B
case you're wondering, they're looking after me.
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C
It's without regard to party or politics. So, yes, you can seek a claim.
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B
So that means that Letitia James and James Comey could do that. The Southern Poverty Law center, when their case is dismissed notice because I think it will be they may do it Jerome Powell and the Federal Reserve because we have on record. Again, I'm just taking cases where there's. In this situation, there's judges who have said that you have A.O. garcia who's a victim because he was removed from the country.
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C
It's a panel that will review the claims of five people appointed by Donald Trump and he can remove them. So do you think he's gonna let them settle those claims or do you think this is really for like the J6 defendants and Steve Bannon and Michael Flynn?
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B
So there's so many issues to unpack here. So wait for congressional action on this. The way it is distributed and whether it's done politically is subject to challenge. You and I, before we started, in a rare instance where we actually talked about what we're going to say talked about both of us are were alive to remember Attorney General Sessions. So Attorney General Sessions was the first Attorney general for Donald Trump in I was still working. Me too.
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C
Yes, that's right.
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B
And one of the first things that Attorney General Sessions did is he said no more settlements where we pay out to third parties. And notably Todd Blanche in justifying what's happening now, cites back to that memory and is saying, well, this has happened before and look at the Obama administration and they did something similar to this. Well, Attorney General Sessions was like, no, that's exactly what we don't want. We do not want a settlement where there's a suit of like Andrew weisman sues Mary McCord and the claim is like leaking tax returns. The payments for any settlement have to be to like you for the.
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C
So if we settled it, that I then have to pay the producer. That would be to a third party.
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B
Exactly. Or if you just said, you know what, I really like the Southern Poverty Law center. So can you also give them money?
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C
That's right.
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B
And so you're giving some unrelated money.
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C
Unrelated to the litigation.
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B
Exactly. Or it's sort of tangentially related. It's like, oh, I want to generally help people in this situation. That's exactly what's happening here.
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C
This is a quote from Attorney General Jeff Sessions in the press release where he announced this new policy.
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B
We are so this is, by the way, three years later, we still are. Like, not only do we have all of this, but we quoting this. Wait, wait, so I have.
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C
Yeah, yeah, yeah.
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B
Okay.
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C
So here we go. Here's what he said. When the federal government settles a case against a wrongdoer, any settlement funds should go first to the victims and then to the American people, not to bankroll third party special interest groups or the political friends of whoever is in power. Yes.
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B
I'm sorry. So this was the Democrat, Jeff Sessions. Right.
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C
This was a very conservative attorney general under Trump 1.
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B
I mean, it's like a terrible.
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C
This administration has no shame. They don't care about that policy. And so there may be some challenges. I. I keep thinking the judge should appoint an amicus to at least research and analyze and file a brief on whether the collusion here gives her any foothold and to keep on.
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B
And if it's a violation of the emoluments clause, then.
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C
Or the appropriations clause.
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B
Exactly. Then the idea that it's like you're going to get rid of the case, but it's for doing something illegal. Right. But again, I really do think this is one where Congress could step in because this is one where it's. They are control of the purse and
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C
there's no question they could limit this. They absolutely could.
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B
More to come after the break. Stay with us.
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A
Subscribe to MSNow Premium on Apple Podcasts for early access, ad free listening and bonus content to all of MSNOW's original podcasts, including the chart topping series the Best People with Nicole Wallace. Why is this happening? Remain justice and more. Plus new episodes of all your favorite Ms. Now shows ad free and ad free listening to all of Rachel Maddow's original series, including Rachel Maddow presents Burn Order. Subscribe to Ms. Now Premium on Apple Podcasts.
- [25:43]
B
So Todd Blanche, who's the acting Attorney general and people under him have filed this lawsuit. And so the impetus, as you mentioned at the outset, is that Jeffrey Clark is the subject of a disciplinary proceeding. Now backdrop, the context is. I know it may not feel like this, but lawyers are part of a profession. The judge I clerked for used to say this all the time. It's like, we are in a profession. We are not hired guns. We have an ethical obligation as members of the bar. We have to adhere to those ethical rules that govern what it means to be a lawyer. We have ethical obligations to our clients. We have ethical obligations to the court. All of that is something that if we violate the courts that have admitted us to the bar. Because you have to, when you go to law school, you then have to be admitted to the bar of a court. And so I'm a member of the New York State Bar, District of Columbia Bar. And then you get admitted to individual courts as well.
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C
And you have to follow their rules of ethics and professional responsibility.
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B
Exactly.
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C
It's your obligation. And it's also the right thing to do.
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B
Well, it wouldn't. This falls into the category of why would you complain about this? Were you planning on not doing that? And so here, Jeffrey Clark will continue to have the opportunity to say why the adjudication in the disciplinary proceeding is wrong and is erroneous, and it all can get appealed.
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C
In other words, he has due process.
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B
Exactly. And so he will have an ability to say that he never intended to violate the law, it was a good faith dispute, that the penalty is too harsh, that it's not comparable to other people. They make an argument in this brief that it's not comparable to the lawyer in the FBI general Counsel's office who they say got a slap on the wrist because he couldn't practice for a year. Of course, he hadn't submitted an opinion against the. As I understand it, against the wishes of the Attorney General and the Deputy Attorney General in support of an insurrection overthrowing the 2020 election. Not to put a thumb on the scale of what I think about this, but if that were to be found, which it was, by the disciplinary panel, they could, as I understand what they're doing, they're saying it's more serious.
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C
Yes, that's right.
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B
But again, he has the right to say that. And he has the right also to say something which I did actually think was concerning in the brief, which is that the makeup of, like, they focus on one of the people who's related.
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C
Can we hold up for a second? Because I think we should talk about what the claims are. Because they made a big deal about that, but it's kind of not really relevant to their actual claims.
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B
Yeah, so I wanted to talk about that. Cause I always looked very carefully as, what are they claiming? Because there's one thing to say, that Jeffrey Clark is being treated unfairly, but that is a claim that Jeffrey Clark will make on his own.
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C
This is not Jeffrey Clark bringing this. It's the Department of Justice.
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B
Exactly. And so my point on sort of focusing on that is Jeffrey Clark is going to have all the process to do that, including in a court. And so they latch onto that. But this is what they're asking for. There should never be sort of bar association and bar review of anybody at the Department of Justice.
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C
Well, let me read. Here's what they say. Weaponizing state bar discipline against executive branch attorneys in this way to chills them from giving candid legal advice to others in the executive branch, including the president and Attorney general, to permit these proceedings is to allow state bar authorities to control the executive branch. And then do you know what they do? And you know, this is one of yours. And my pet peeves, they rely on Trump versus the United States, the absolute, which doesn't matter, immunity case. But they say that immunity that constitutionally required, immunity that that case provided to the president would provide little protection if executive branch attorneys could be targeted for executive branch deliberations.
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B
But here's the problem, and I have a hypothetical I want to raise because I think it reveals how wrong this is. In any individual case where there was weaponization, there is a remedy, there is right. If that is, if you have that specific where you were targeted by a bar association, there is process to deal with that. It's not that you sit there and go, like, throw everything out. And this is why you don't throw everything out. Here's my hypothetical. The attorney general comes to you, Mary, as the head of the National Security Division and says, I want you, even though we have no legal authority, I want you to target only black people. I want you to target only Democrats. I want you to target only poor people. Like, let's just assume it is something. And you say, I know that is wrong and I am a lawyer and I know that is unconstitutional and I cannot do it, but you want me to do it. I'm going to do it. And by the way, do you want an opinion that says it's okay? All right, I'll write one for you that says it's okay, even though let's assume it's all on tape. So there's no question that this all happened under the Todd Blanche view of the world. The Bar association could not investigate. And even though your truthful answer to them would be, I was asked to do something illegal, I knew it was illegal and I did it anyway.
- [31:33]
C
And just to be clear, there is not any allegation that I'm aware of that Jeffrey Clark ever said, I knew there wasn't actual fraud, but I did this anyway. So we're. This is a pure hypothesetical.
- [31:45]
B
This is a total hypothetical. The reason for the hypothetical is because there would be under. There is.
- [31:52]
C
They're reading DOJ's reading.
- [31:54]
B
Exactly. There's no bar association consequences yet for the thing they're worried about, which is weaponization. There is a total remedy. There is procedure for that.
- [32:04]
C
So this is such an unnecessary case, but it flows pretty naturally from the recent, you know, notice of proposed rulemaking that they want to be able to step in. Department of Justice. When a state bar disciplinary council in any state investigate any Department of Justice lawyer and say stop, they think they can do that and they think otherwise. The actual claims here are unlawful regulation of the federal government, unlawful discrimination against the federal government, interference with executive authority under Title two.
- [32:34]
B
So I just, you know, this is going to fail. This will not win. Just to be clear, I didn't look at this and say, oh, this is why they're right. This is why Todd Blanche is right. I just thought, oh, isn't there an appearance of an issue here? Should that person have a role in this if what they say is true? So talk to me about what you were saying.
- [32:55]
C
Yeah, so this is what you brought up earlier. And you know, their theme here is that this is necessary. It is necessary for DOJ to intervene because these bar disciplinary councils are weaponizing their tools.
- [33:06]
B
One, one of them, but they really only had one.
- [33:09]
C
That's right. They say this about in their rule. Right. But yes, and then they have quite a lengthy discussion, including like screenshots and everything. Apparently one of the assistant disciplinary council within the D.C. disciplinary council's office likes to post things on social media. Horrible idea. You know, if you're going to be investigating anyone in this administration to be posting things about Donald Trump, but he posts a lot of political things on his social media. And so they understandably, just like we point to things that the administration officials put on their social media that are overtly political or suggest unconstitutional activity. We pointed out, and they are pointing out too, some of these statements and social media posts, et cetera, to support their argument that this is pure weaponization. And, you know, if I were in their shoes, I would have done that too. But it is not actually relevant for the reasons you said that would be relevant for Jeffrey Clark to say, I was targeted, you know, because this person doesn't like my politics. It's not really a reason for the government to say, you know, this is a pre decisional Memo within the executive branch. And so you just can't review it at all.
- [34:19]
B
But I will be interested to see what the response is like, you know, have they curtailed that person's role? I did think that raised an issue, but I agree with you. It's unrelated, but it raised an issue. And I would be concerned if I were running the bar association about how to clean this up. There was one thing that I thought was very rich that they were pointing out about this person. They said, and they're even trying to. They're trying to solicit new members on their committee, but by using social media. And I'm like, who else is. Who else is so depleted? The Department of Justice, that jobs that you would have given your eye teeth to get, they're now pleading with you.
- [35:00]
C
They're giving you bonuses to sign.
- [35:02]
B
Right, exactly.
- [35:02]
C
Giving you bonuses to stay and. Okay, we'll take a quick break right here. More on the other side.
- [35:17]
B
Artificial intelligence is moving very, very fast, and it's raising new questions just about every day about what it is, what it isn't. When all is said and done, what is the end game? I'm Chris Hayes, and as part of my podcast, why is this Happening? I'm speaking with leading experts each week to help ground that conversation.
- [35:33]
C
We're right now in a situation where it's very difficult to understand what is real and what's not real.
- [35:38]
B
Why is this happening? The AI Endgame, a special miniseries from Ms. Now. Start listening today, wherever you get your podcasts.
- [35:51]
C
So you put out a hypothetical that made me think of our next segment, actually, because it reminded me of a hypothetical that one of the judges in the three judge panel that was holding oral argument on the government's appeal of the four separate district court orders and joining these blacklisting executive orders, one of those hypothetical law firms. Four law firms. Right.
- [36:13]
B
One of which, just full disclosure, as we did before, but I just want to make sure everyone knows I used to be a partner at one of those law firms and executive order of Jenner and Block. You know, I'm featured prominently because one of the, you know, big sins of Jenner and Block was having hired. Really bad judgment to have hired me. So that's why they're blacklisted.
- [36:37]
C
Yep.
- [36:38]
B
So.
- [36:38]
C
And other reasons, but that was. That was definitely one.
- [36:41]
B
So.
- [36:41]
C
And we've talked lots and lots throughout this podcast about these. Each of these orders did things like pull the security clearances of all the lawyers at the firm. They claimed to pull yours, but you didn't have one Anymore because you'd been out of government. So it's just performative.
- [36:55]
B
Can I just say, I was also the subject of a prior executive order.
- [36:59]
C
That's true.
- [36:59]
B
Twice.
- [36:59]
C
They pulled your non existent security claims.
- [37:01]
B
That one is very funny. I write about that. Not to plug my book, but I do write about that in my book because it was. That was one where one, you know, I was in far more exalted company. But when the dni, when Tulsi Gabbard had to implement it, she dutifully announced to the president that she had pulled the security clearance of Andrew Weissman, misspelling my name. So I just want to take this opportunity right now to apologize for being the cause of that. Andrew Weissman having security clearance, you know,
- [37:37]
C
so he's probably going to sue you or something.
- [37:39]
B
He doesn't have to sue me. He can go to the victim fund.
- [37:41]
C
Oh, he can. He can go to the victim fund.
- [37:43]
B
Exactly. Okay, so you. We both listen to that oral argument. Can I just give you one funny take? So this, everyone will remember, is the case where the government at one point on a Monday said, we're not actually going to appeal anymore. And that got tons of press. And then the next morning they're like, it's like Gilda Radner and Saturday Night Live. It's like, never mind.
- [38:06]
C
Yep.
- [38:07]
B
And so, so embarrassing. It's like, what's all this I hear about Russian jewelry? Do you remember that? It was like, so anyway, so they actually went forward. But the reason I'm raising that is that you would think if they're going forward, they would have defended each and every part of the executive orders. And I would say with no exaggeration, 98% of the argument argument was about one specific thing which had to do with security clearances because the orders did other things right.
- [38:43]
C
It talked about directing the eeoc, that's the Equal Employment Opportunity Commission, to investigate the law firms for their DEI policies. It talked about doing a review of whether government or lawyers at any of these firms ought to be allowed access to government buildings.
- [38:59]
B
Any government building. Any government building. Post office, Department of Justice. Not contracting with the law firms. Not contracting.
- [39:08]
C
That's why we called it blacklisting.
- [39:09]
B
It's like, made it so you couldn't represent your clients with people who contract with. And it was like two orders down. I mean, so the least of it was. I mean, not, I won't say the least of it, but a smaller part of it was this security clearance. And the reason that took so much time is that is the One area of the law where there is so much deference given to the President of the United States. But I think you're going to refer one of the hypotheticals which was really similar to mine. It's why I was sort of thinking about that.
- [39:40]
C
That's why I thought about it immediately.
- [39:42]
B
Yeah, go to you.
- [39:43]
C
Yeah, yeah. So. And they, and there were different versions of this, but essentially it was, look, I get it that there's tons of deference. And the, the Supreme Court has said the executive has pretty much complete plenary authority over who gets a security clearance and who doesn't. And the courts will not look behind the reasons for that security clearance because it's up to the government to determine, can somebody be TR with our national security, with our secrets, with the classified intelligence? And we're not going to look behind those decisions. So the hypothetical was, what if, you know, because the, because the, the executive said, I'm not going to give this security clearance. I'm not worried about this person not being trustworthy with classified information. I'm not going to give the clearance because the person is a particular party or a particular race or a particular ethnicity. Like, what if they were that explicit about it? And what was the answer of government
- [40:39]
B
president can do it? And this is remarkable. It's in a federal court of appeals, some people say sort of the Nation's like number two court. It's the D.C. so Washington, D.C. court of Appeals. It's sort of like the first among equals of the, you know, 11 circuits. And you have two judges asking the government words the effect of. And sort of this direct. If the President says, I want you to target and do this because I want black people to not have security clearances, it has nothing to do with an assessment of their trust, their trustworthiness. It's like just retaliatory or racist.
- [41:21]
C
Yeah.
- [41:21]
B
And so the best the government could come up with is say, well, he can do it. There may be other challenges like based on protection. And. But it was remarkable because what they, the judges were getting at is, doesn't there have to be a limit? And of course, the government was just like, there's no limit. This is an absolute thing. The case was argued by Paul Clement on behalf of the law firms. Law firms.
- [41:49]
C
And, you know, a very conservative lawyer. Excellent advocate.
- [41:52]
B
Excellent advocate.
- [41:53]
C
He also argued in the Eric Adams case when the judge appointed someone to the amicus. Yes, as amicus, exactly. That's right.
- [42:00]
B
We could go on and on about his style and stuff because he is, he is fascinating. The government Lawyer. It was. This was really his swan song. He's about to step down and leave the government. And the one thing that was very clear from what's going on is that at least leaving the security clearance piece, there is no question that this court, the D.C. circuit, is going to uphold what the four district judges did, which is finding that these violated the Constitution. That was absolutely clear. The fact that there was almost no discussion of it. Even the most conservative jurist, I'm going to be fascinated to see because she was not making a lot of noises, which I would have expected to say that there's some part to resurrect some part of these executive orders. So it was sort of fascinating how much these were a huge deal when they came out. The legal profession, I think, looks like garbage in terms of the. Exactly the sort of capitulating, the weighing, the sort of, you know, obeying in advance we have talked about. And I think it's really important to foot stomp this, which is that a lot of firms have, that have not gotten a lot of press have obeyed in advance because it is very hard. If you talk to organizations that do this work on a pro bono basis, they're not getting the kind of support they used to get from big law firms because they don't want to be suing the federal government, which used to be their bread and butter, which was that they. Because like they do that, that's part of the pro bono practice that you take on all sorts of things and you make your arguments in court. And also the government didn't retaliate. It was like that's just part of the litigation. You, you know.
- [43:48]
C
But that's the difference. The government didn't retaliate in the past and now they know that if we do this, we could be at the butt of one of these orders too.
- [43:56]
B
And that is why I think that there will at least be two judges, if not three of the three, that for almost all of this, if not all of it, are going to say that these all violated the First Amendment and maybe other parts of the Constitution as well. I think it's going to be pretty resounding.
- [44:15]
C
The district court judges, folks will remember, made their decisions on the immediate tros for a few of them literally within hours to issue temporary restraining orders. They thought it was so clear. The retaliation, because the retaliation is basically in the section one of each one of those orders that's like where you're named and Robert Mueller was named with respect to Wilmer Cutler, like other people, Mark Elias with respect to Perkins Coey. So it was about the people who they hired and the causes and people they represented. And so we will track that. Okay. Lies, lies and more lies. The government may have lied to Judge Boasberg more than than a year ago when he really did direct them to not, you know, not remove people, not just from the territory of the United States, but if anybody was on a plane that was, you know, carrying people alleged to be members of Trend Aragua who had had no. No due process, that plane either needed to be turned around or if it landed, they could not deplane. He left that up to the government.
- [45:15]
B
Meaning don't relinquish authority over those people.
- [45:18]
C
That's right.
- [45:19]
B
That was the clear message.
- [45:21]
C
And the government did relinquish authority, gave those folks over almost 200 people to El Salvador.
- [45:27]
B
So the status of this is that there was a decision two to one in the same D.C. circuit saying essentially that there's no way that under this set of facts, this could be contempt. And so we're ending it right now.
- [45:43]
C
This was on a petition for Mandamus to reverse Judge Boasberg simply wanting to get to the bottom of it, wanting to investigate, to determine whether he should make a. Refer a contempt prosecution. And they just put the halt to it.
- [45:55]
B
Exactly. Saying that there's no set of facts that could justify this because of the ambiguity.
- [46:01]
C
Alleged ambiguity.
- [46:03]
B
Exactly. That's what that. Exactly. And so we talked about this in
- [46:07]
C
a prior episode, too.
- [46:08]
B
Exactly. And so there is movement afoot. And the real issue is whether the D.C. circuit is going to hear this, what's called on bunk. Because people who listen to this know you can have a decision from the three judges, but one of the parties who lost can say, I'd like the whole panel of active judges to take this up. And so in part, there was such a strong dissent, there have been filings, including by.
- [46:35]
C
Was it 175, 74 former judges, federal one too many federal and state, really talking about how, you know, fundamentally this. What they said is the panel's ruling creates a means for the government to defy an order and then curtail the court inquiry into the government's conduct on the basis of post hoc justifications. Those justifications, meaning we thought it just meant you couldn't remove them from the territorial US and once they got a certain distance on the plains, your order was no longer in effect.
- [47:08]
B
And that, to me, is kind of the strongest part of that brief. And the biggest problem with what the two judges had done, which is it just isn't true. As, I mean, you and I did trials. It just isn't true that there's no set of facts. You could say, oh, there was not contempt. And that's. To me, it may be that after the court has a right to do an investigation, they cite all sorts of law that it's integral to the court's role. Obviously, they have to be able to do an investigation to find out if their orders have been violated. And it may be very well be that after that investigation's done that the judge says, you know what, I don't think there's anything to refer, and I'm not gonna do it. It's insufficient. But to stop it now, to me, smacks of, oh, I'm stopping it now because I don't want you to have the ability to put under oath people to find out what they were really doing. Exactly. And remember, we have a whistleblower now because Erez Reveni, he has said he refused to follow Pam Bonney's instruction to call Abrego Garcia a terrorist unless there was evidence of it. And he was removed from the case even though he had been loyal completely. And it was by no means some far left radical.
- [48:32]
C
He'd been doing these immigration cases.
- [48:34]
B
Exactly. Ones you and I might very much disagree with.
- [48:37]
C
That's right.
- [48:38]
B
But to his credit, it's like, yeah, so he had a different view on that policy, but he also had a view as to what his obligation was to the court. And so he has talked about things that make it sort of. I think if what he said is true, that it was that they all knew that what the order was what the court ordered. Yes, exactly. And they all knew it was an order. And so saying, oh, no, it's ambiguous now, wasn't what, like the issue was
- [49:02]
C
that people thought in real time.
- [49:04]
B
Exactly. And so. So that is really the point of what these judges are saying is that you nip this in the bud too soon and that you're allowed to go forward. And it really reeks of protectionism. And so it just makes them look so political.
- [49:19]
C
Yep. I mean, they talk about, the judges say, and we can end on this, is that the panel's decision to halt the district court's criminal contempt inquiry undercuts an essential power of the judiciary to enforce its rulings and the rule of law. And that's particularly dangerous, they said, when it's the executive branch. So much more to come. There were other amicus briefs filed in support of the petition for rehearing on Bank. And so the court will have to decide if enough judges call for rehearing on Banc, then they will have a whole nother briefing and probably a whole nother argument.
- [49:51]
B
So a lot of things we talked about today are very much going to be on our radar screen. We will keep everyone posted on this effort to have, like, the bar association stand down. So we'll keep everyone, you know, up to date on what's going on there. Mary, this was great. It's way. It's always so nice to see you. I don't. I had not physically been in a room with you for a very, very long time. And then.
- [50:15]
C
Although, you know, I do see you.
- [50:17]
B
I know. That's. I know. But you know what?
- [50:19]
C
It's not the same. You actually now have a body attached to your head.
- [50:22]
B
So I. I put it. I do that every now and then. I sort of attach it for you when I go out.
- [50:27]
C
Yes.
- [50:28]
B
I think it's sort of a nice look. So it's great. This is like going to be our. Our. You know, it's so funny because so many other people do it, but it's like, like we, we're usually because we, like.
- [50:37]
C
Because we have all our screens in front of.
- [50:39]
B
We have screens and. And you know, we usually don't dress up.
- [50:43]
C
That's true. At least sometimes I'm just back from a run, so it could get. It can get really?
- [50:47]
B
You're back from run? As everyone knows, that means I'm just getting coffee. So it's like.
- [50:51]
C
So we look about the same.
- [50:52]
B
We should do this. We should change from doing it in the morning to like here. We're going to start recording at like 10:30 at night.
- [50:58]
C
Well, that would be after wine then. So that wouldn't be.
- [51:01]
B
That could actually be. Oh, okay.
- [51:04]
C
You know, have you ever been to drunk Shakespeare? That would actually be funny. Okay, we'll talk to the producers about that.
- [51:09]
B
I think. I think I would be really dangerous.
- [51:11]
C
Yeah, sometimes we're dangerous without that. So.
- [51:14]
B
Okay.
- [51:15]
C
All right.
- [51:15]
B
Okay.
- [51:16]
C
Thank you.
- [51:17]
B
Well, thank you for listening. And remember, you can subscribe to Ms. Now premium on Apple podcasts to get this show and other Ms. NOW originals ad free. And you'll also get subscriber only bonus content. And as a reminder, we are also available on YouTube. And this week and this week only, it's like, you will see us. You will see us, not just hear us. That voice you heard, if you want to see the face attached to that voice, go to YouTube.
- [51:50]
C
That's right.
- [51:51]
B
So head to Ms. Now Main justice to listen.
- [51:55]
C
This podcast is produced by Vicky Virgolina and Danny Holloway Nicholas Vinuela Yodar is our associate producer, Bob Mallory 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.
- [52:14]
B
Search for Main justice wherever you get your podcasts and follow the series.
- [52:34]
A
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