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B
Welcome back to Main Justice. It is Tuesday morning, January 27th. I'm Andrew Weissman and I'm here with my co host, Mary McCord. Hello, Mary.
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C
Good morning, Andrew. It's a little more somber today.
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B
Yeah. So we're going to go right into it and we're actually going to focus obviously on Minnesota. There's so much to talk about and we're definitely going to cover the legal aspects, but we're also going to start by talking about sort of the necessary factual prerequisites that get you into legal issues. Mary, do you want to explain sort of how we're going to break this up?
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C
Sure. There's so much that has happened that it's almost hard to figure out what order to put it in. But obviously we will start with the absolutely tragic shooting of Mr. Pretty in Minneapolis on Saturday morning. Many of us were just kind of up and about when we got the news of that. And then I and many others, including you, Andrew, as we were texting back and forth throughout the day as people found new videos, new footage, you know, looking at it, analyzing it. Anyway, we'll talk about that. We'll talk about the fact that the federal government tried to basically block out the state and local investigators and the Bureau of Criminal Investigation from doing its own investigation, talk about where that leads. That spurred its own emergency motion on Saturday to make sure that the federal government wouldn't destroy evidence. We'll talk about that. We'll move on to so much of the other litigation that is happening in Minnesota, there have been cases we've already talked about, like the Tincher case, where protesters on behalf of a class brought suit challenging the unconstitutional and unlawful and First Amendment retaliation that they were experiencing. They got an injunction that's now been staged by the 8th Circuit. Yesterday there was a hearing in the case brought by Minnesota and the cities of Minneapolis and St. Paul alleging 10th Amendment violations and equal sovereignty arguments to try to get Operation Metro Surge just stopped. Those hearings are particularly interesting because of a letter that the Attorney General sent to the governor that really does suggest that this is not really about actual immigration enforcement.
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B
The extortion letter.
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C
The extortion letter, yes, absolutely.
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B
Mary. I interrupted you, Dave. Was there any more?
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C
There is just a little bit more just to roadmap for people. Other news that came out in the last several days has been that DHS general counsel has issued a memo that suggests that it is okay to enter into someone's home, their actual residence, not with a judicial warrant, but with an administrative warrant, which is simply the executive branch saying, we think somebody's unlawfully here. It's not signed by a judge. And that's a core principle of the Fourth Amendment. So we'll talk about that. We'll talk about some extraordinary statements and orders by the chief judge in Minnesota in federal court, who has ordered the director of ICE to be in front of him by this Friday because of ice. Not following. I shouldn't say ICE every time. We tend to say that Department of Homeland Security underneath, beneath it is ice, Customs and Border Patrol Enforcement and Removal Operations. Those are all under dhs. But DHS has not been obeying court orders to give people who have been arrested bond hearings. And so he's bringing Mr. Lyons into court on Friday to address these problems and suggesting that he'll be held in contempt if he can't answer this and if people are not released in accordance with court orders. And there was a whole back and forth exchange conflict over the federal government's attempt to criminally prosecute protesters who interrupted a church service on the weekend. And a magistrate judge refused to sign arrest warrants for several of those protesters who were arrested. And not just protesters, journalists. Including Don Lemon.
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B
Don Lemon, right. People may have heard of that because the Don Lemon piece managed to break through the news. It did. Why don't we start? Because our job now is to slow this down and try and give you an overview of some issues that have been concerning us, and then to highlight key legal things that have happened. And then what we're looking at.
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C
That's right.
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B
Mary. I'd like to start by just talking briefly about some facts. And it's very hard to talk about Preddy without putting it in the context of Goode.
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C
Renee Goode.
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B
Yes, exactly. Thank you. So the administration, with no investigation at all immediately in both situations, came to the defense of the federal agents. They immediately made conclusions with no investigation. They immediately came to describe both individuals as domestic terrorists.
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C
Both individual victims, let's just be clear.
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B
Oh, absolutely.
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C
And protesters and observers were terrorists and they justified both killings as self defense with zero investigation. I think that is just so important to Footstep.
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B
Exactly. And the other thing, I think that's important because there seems to be an effort to scapegoat the Secretary of Homeland Security, Kristi Noemi and Agent Bovino. And God knows, I'm not saying that they don't deserve accountability, but it doesn't stop there. And to our point about the conclusions that were reached with no investigation, Stephen Miller said about Mr. Preddy that he was a domestic terrorist who tried to assassinate federal law enforcement, unquote. He shared a post claiming that Mr. Preddy, quote, likely intended to, in all caps, like his boss, massacre law enforcement. Those words in all caps. Massacre law enforcement. Vice President J.D. vance reposted Miller's comment. And Stephen Miller made one of these posts in response to Senator Chris Murphy criticizing ice. And then Stephen Miller responded, quote, an assassin, an assassin tried to murder federal agents. And this is your response, unquote. The reason I'm going over that is I want people to understand that what happened is not just about the agents on the ground and it's not just about Agent Bovino and it's not just about Secretary Noem. You do not have people at the senior levels going, wait, wait, wait, stop. Don't describe them that way. We need to have an investigation first. I mean, they were following orders. I mean, that is sort of the context. And then, Mary, if you just would indulge me for one second, because I just wanted to contrast that with you mentioned one of the litigations, which I know we're going to turn to. I just wanted to contrast that very briefly with one of the filings that you know very well, which is immediately really great lawyering was done to get eyewitnesses, not just the posting of videos that have been widely shared and disseminated, that have caused the New York Times, the Wall Street Journal, all sorts of major news outlets to say that the videos disprove what has been said, but also eyewitnesses on the scene said that, and I wanted to quote from one of them and then briefly talk about the doctor who was there. When I quote from this, when the person says the man, that's a reference to Mr. Preddy. She doesn't know his name because she just arrives at the scene.
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C
She was a witness. Yes, exactly.
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B
And she gives this sworn statement. So contrast that to what we just talked about. I and the man who was observing and helping direct traffic were standing in the street. There was a phone in the man's hand recording a video. An agent approached and asked us to back up. So I moved slowly back onto the sidewalk. The man stayed in the street filming as the other observers I mentioned earlier were being forced back by another ICE agent, threatening them with pepper spray. The man, again, Mr. Preddy, went closer to support them as they got threatened. Just with his camera out. I didn't see him reach for or hold a gun. Then the ice agent shoved one of the other observers to the ground. Then he started pepper spraying all three of them directly in the face and all over the man. Mr. Preddy, with the phone, put his hands above his head and the agent sprayed him again and pushed him. Then the man tried to help up the woman the ICE agent had shoved to the ground. That I just have an aside that is the last thing that Mr. Preddy did on this earth. The man tried to help up the woman the ICE agent had shoved to the ground.
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C
And we've seen that. You can see it on the videos that have been posted.
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B
The ICE agents just kept spraying. More agents come over and grab the man who was still trying to help the woman get up. All three of the observers looked to have been badly affected by the pepper spray. I could feel the pepper spray in my eyes. The agents pulled the man on the ground. I didn't see him touch any of them. He wasn't even turned to them. It didn't look like he was trying to resist, just trying to help the woman up. I didn't see him with a gun. They threw him to the ground. Four or five agents had him on the ground and they just started shooting him. They shot him so many times. I don't know why they shot him. He was only helping. I was five feet from him and they just shot him. The video I recorded of what happened accurately depicts the events leading up to the agents shooting him and several minutes afterwards. The video is attached as Exhibit 1. I have read the statement from DHS about what happened, and it is wrong. The man did not approach the agents with a Gun. He approached them with a camera. He was just trying to help a woman get up and they took him to the ground. There's more to that, but that's the gist of it. And then the doctor who is finally allowed to see him, who is also at the scene. I thought the thing that was remarkable was Mr. Preddy is now riddled with bullet wounds and holes, I believe. We don't know the exact number, but it appears about 10 times. He is being shot repeatedly while he is motionless on the ground. Flashback to Renee Goode, where whatever you think of the first shot, the second and third shot were ones when she is past Agent Ross. So here. And the doctor is finally allowed to come in and says the following. I asked the ICE agents if the victim had a pulse and they said they did not know. And what he recounts is when he came up to them, they weren't checking for his pulse. They were counting bullet wounds. They did not know whether he had a pulse. It is so reminiscent of the cursing that we hear on one of the videos in the Renee Goode case.
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C
I was just gonna say that. And the agent who shot her getting in his vehicle and driving away. Just to be clear, like, there's so many things that are horrible about this. And obviously the shooting is the worst. The just killing of this man who was not posing any threat to immigration officials. But even when there is a justified shooting, even one where the law enforcement had a reasonable belief that their life was in danger, it is still the obligation of law enforcement to bring aid to the person shot. Right? You don't first go look and count bullet holes. You check is the person alive, is the person have a pulse and you get medical aid there. Because our system isn't about killing somebody, you know, even if it's justified, it's self defense. And you still, this is a human being and in America who needs aid. And if it's a human being who was committing a crime, then there's a justice system to deal with that. It's not that you shoot someone and kill them. So even in a justified killing, this wouldn't be the proper approach. And I wasn't there. I don't know if there was any ICE agent who maybe was checking a pulse. There's so much we don't know. But that points out another thing that is so wrong with this. In both of these killings, the federal government has come in. Local investigators have come in as well, because that's what they do. This is their state, this is their city. They investigate crimes. We've had people shot and killed in both locations. Normally, the federal government and the state and local bureau of investigations would jointly work together. They would gather and categorize all the evidence. They would secure the crime scene. And in each case, we've seen this incredible first carelessness among federal agents about preserving the crime scene. That means you don't grab the gun. And if there was a gun that Mr. Preddy had, and there is evidence that he had been carrying, holstered, he was lawfully carrying a holstered gun in a state where he was registered to carry and where it is lawful to carry the gun. The photos that circulated on the Internet are just this gun lying on the seat of a car, not tagged for evidence.
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B
Evidence.
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C
Yeah, exactly. Totally being contaminated.
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B
Former FBI agent. First thing they said is like, what the hell?
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C
That's right. And then the scene would be secured with tape. There'd be all kinds of measurements taken and things happening. And instead what we saw here is that witnesses were apparently whisked off to the Whipple Center. Unclear whether it was voluntarily or not. Voluntarily. Local and state investigators were forbidden from accessing evidence and accessing the witnesses.
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B
Mary, can I just stop on that? What is the reason? What is the legitimate reason? I could understand if there's only one copy of something and you're sitting there going, I don't want to relinquish the only evidence. You might say you can have access to it, you can see it, but we're going to hold the only piece of it. But there's no reason I can possibly think of in this case that is legitimate, unless you're trying to have. I can think of an illegitimate which is you want no investigation or you want a whitewash. But it is so routine. Mary, when I was at the bureau, this was just part of our life there. Because you know what there. It's awful, but it happens that guns go off in the course of an arrest. You know, it's very, very rare. But when it happens, it is routine to have an investigation at the federal level. It is routine that it's done by the FBI, but if it's happening in a state that has its own sovereign interest, there's coordination. And especially with evidence that can be really shared, like electronic evidence, they get their copy.
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C
Yeah.
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B
Yesterday when there was this argument in court about preserving evidence, and one of the things that the Trump lawyer said that is Evan reported msnow was there. The New York Times was there, was the federal government took the position, well, these are federal agents. They were in the course of enforcing Federal immigration law. Although just to be clear, there's no immigration violation with the victim. District of Predi.
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C
That's right.
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B
And they said, well, because they're federal officers and they were in the course of doing something involving federal law, the state has no business investigating under any circumstances. And that is just not the law. They're a separate sovereign state. So under their theory, let's take this as hypothetical. Let's assume that the agent just committed absolute cold blooded murder. And in the course of doing this, and I know some of the listeners.
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C
Are going to be like, not such a hypothetical.
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B
Not a hypothetical. That's what I think. But I'm trying to say, look, a true investigation, you want the investigation first before you reach that conclusion. But in that situation, of course the state has an interest. The feds don't get to come in and commit a state crime. Now, there are all sorts of things that could come up, like if you were to actually bring a case, but it's simply not the case that the state has no interest and has to stand down if there is a state crime that's been committed.
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C
That's right. I mean, I will say that this is not the first time that federal authorities have tried to cut off or take precedence over evidence when there has been a fatal shooting by a federal law enforcement in Northern Virginia. There was a fatal shooting several years ago by two U.S. park Police officers against a resident of Virginia. And both the local authorities launched their own investigation about whether the park police had committed an unlawful act by this killing. And there was a civil rights investigation by the Department of Justice into whether those park police officers had committed civil rights violations. And while that civil rights investigation was ongoing, they were saying, we're going to go first. Right. We're going to have the evidence first, we're not going to destroy it, but we will go first. And the local DA had to make his case without access to some of the evidence that the federal government was keeping for itself. So it's not completely unheard of that the federal government says, you know, we have the primary interest here, we're going to go first. But I think what's so remarkable.
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B
Can I just footstep something? You're saying there we're going to go first as opposed to we're not going to do an investigation. And the rate, I mean, a good case, it's, we're not doing an investigation and we're not giving you access.
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C
That's right.
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B
And in the Preddy case, we don't know what that investigation is. No, One has actually said exactly what is being investigated and who is being investigated. I mean, in the Renee Goode case, what we do know from reporting is that there was an investigation, and the investigation was of the victim and the victim's will. It was ongoing, and the governor and the mayor, so you could say there's an investigation there, but it's not actually of the thing that you need an investigation of.
- [19:54]
C
Department of justice announced, we're not going to do a civil rights investigation in the Renee Goode case. So here they haven't said that for sure yet about Mr. Preddy, but they also have not said they are doing one. And that is why the state and the city ran to court on Saturday, the same day Mr. Preddy was killed, to get a temporary restraining order, which was issued Saturday evening by a public judge.
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B
I want judge to understand how smart that is. Like, within that day, they realized they needed to go to court. So I just, again, I would want to footstep what you're saying, which is the day it happened, they were in court.
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C
Yeah. And the court said, you may not destroy any evidence now, the next day or then. The court said, I'll have a hearing on this, you know, on Monday. Government, if you want to file anything, you can file something by noon. And they filed something yesterday at noon. He had his hearing yesterday afternoon. And basically what the government filed was, we've already said we're not going to destroy any of this. Our own policies require us to to preserve this evidence for a certain amount of time. We filed declarations now that show what our policies are. And you know what my response to that is? You've been violating not just policies, but laws and the Constitution now for months and months and months. So why should any judge believe you when you say we have policies against destroying evidence, and so you should give us the presumption of regularity that we will not destroy evidence. And I wasn't able to listen in on that hearing yesterday. But, you know, I think any judge has to be skeptical now about the government saying, we've got policies and we will follow them because we're seeing blatant violations of all kinds of policies, laws, constitutional provisions across all of the immigration enforcement across the country, which will tie into something we'll talk about later with these contempt proceedings based on not following the law.
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B
Also, if you are trying to make sure that the public has confidence in the objectivity and the independence of an investigation you're going to do, let's leave aside that in this situation, they've announced the conclusion before the investigation. So pure Queen in Alice in Wonderland, right?
- [22:03]
C
Yeah.
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B
This is like off with their head trial to follow. To quote Judge Beryl Howell, it may be amusing in a children's book. Not so amusing when you're talking about the American system of justice. But if you had that situation where somebody said, but we have a lot of policies, what's the harm? Then I understand that you might say, you don't need it because we're going to do this. But the judge can rightly say, well, if you're doing it anyway, then why do you care so much?
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C
You should just acquiesce in this preservation order.
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B
Exactly. Because it's not imposing on you anything that you wouldn't do anyway. And you know what? It could be really helpful for the people who don't understand you now get to say there's a court order, because you are telling me that you really, really, really want to preserve things. So this is only going to help you do that. So why are you fighting so hard? And, you know, this goes to your point, Mary, which is you started by saying, you know, there's this judge who's having a hearing where they said, I need to see by Friday, Todd Lyons, the acting director of ice, needs to appear personally, which, by the way, is italicized. And that's because the judge has said that, to quote the judge, the court's patience is at an end. And the judge says it's at an end because there's been so many repeated violations of court orders. So when Mary says that what you are seeing out there, that's not just what you're seeing out there. That is what judges across the country are seeing. And to be clear, not rogue, democratic, domestic terrorist judges. These are judges of all stripes, including judges appointed by Donald Trump in his first term.
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C
That's right. And before we break, people are probably wondering because we have not yet really had a chance to talk about this, even when we talked about the Renee Goode shooting, people are probably wondering, you know, what can the state do? Can the state bring criminal charges? And the answer is, you know, if the evidence is there and the state has it, they can seek a grand jury indictment of federal agents. And then the way the law works is when it's a federal agent who believes that he or she was doing their job as part of their official acts, they can remove that case to federal court and argue, I'm a federal officer, my conduct was under color of law, meaning I was doing things that I was officially authorized to do. And I have a colorable federal defense. And that defense would be that I was again acting as part of my official authority and did nothing more than what was necessary and proper. And then there would be hearings about whether, in fact, what the agent did was within the scope of official acts. Was there an actual operation going on, or was he acting totally outside what he's authorized to do? And then secondly, in this question of in exercising your authority, did you do what was necessary and proper? That is looking at, did you violate the Constitution when you did this? Did you violate the Constitution by using excessive force, unnecessary force that anyone would have understood was not warranted and violation of the Constitution? And so if and when there is a point in time, and we don't have any knowledge of this now, when the state might seek to prosecute, we'll go into a lot more detail about this procedure. Ultimately, if removal is authorized, then it still doesn't mean the state can't try the case. They just try it in federal court, applying state law.
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B
Exactly. That, to me, I want to make sure people understand is that the state prosecutors go with the case. They're just sitting now in federal court, not in state court.
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C
That's right.
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B
And the law that applies is state law. It's not federal law. So the biggest sort of immediate issues are that you have a federal judge overseeing it as opposed to a state judge, and you have the federal jury pool, not the state jury pool, but the personnel doesn't change and the law doesn't change. And just to briefly. And then let's take a break and come back and talk more deeply about what's going on legally in Minnesota, is that people who are listing this may recall us talking about something similar when we were talking about efforts to remove cases in Georgia, for instance, where Mark Meadows. Mark Meadows tried to remove the case. And we had the same thing happen in New York as well. So this removal idea is something that happens from time to time, and there's litigation over it that, as Mary said, if we get to that point, we'll deal with it. One final thing, state murder cases, the statute of limitations is not something that you need to worry about. Meaning that this isn't one where if the state doesn't act within a matter of a year or two years, or three years, I. E. After the next presidential election, it's still alive. And so this could be a situation where you may have justice delayed, but it may not be justice denied. And I know that's not super satisfying for people who want to see vindication now and you know, if I'm the parents of these people, the relatives, the friends, I can't imagine what they're going through. Including the vilification, the unjust vilification. But in terms of the long term prospects, it is there. But Mary, on that sober note, should we take a break and come back and talk through some other legal developments?
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C
Yes, let's do.
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A
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- [29:07]
C
Welcome back. So we're going to shift into some of the civil cases that have been pending in federal courts in Minnesota. And there was a pretty major hearing yesterday in a case brought by the state of Minnesota, the cities of Minneapolis and St. Paul, to try to get a court to just order that DHS cease this operation, Operation Metro Surge. And their arguments, you know, they go into great detail about things we've talked about a lot. All of the excessive force that's being used, the racial profiling when it comes to stopping people suspected of being here unlawfully. And many times those people have turned out to be US citizens or people here with lawful status in this country. They have retaliated against protesters for exercising First Amendment rights. These are all things Detailed in this case brought by the state and the cities that have been impacted. And they've explained how this has impacted the city's resources and the city's obligation and the state's to protect public safety. So it's law enforcement. They have been diverted from what they would ordinarily be doing in order to respond to so many of the things that are being provoked and caused by the. This immigration enforcement surge. They are in their public welfare and health types of services. They are having to respond to the things that are happening as a result of this immigration surge. And by that, of course, yes, I am talking not just about protest activity and the need for law enforcement to be able to protect those First Amendment rights of the protesters while also protecting public safety, but also those who have been stopped. Right. And sometimes stopped unlawfully, sometimes physically harmed, and sometimes they're being detained and then driven multiple blocks away and then let out. And people need healthcare services. People are injured. You know, all this is falling on the state and the cities. And they've had to close schools because of concerns about public safety. So the state and the cities are saying, look, this is in violation of the 10th Amendment, the 10th Amendment that reserves to the states all powers that are not held by the federal government. And one of those core powers is the police power, the power for us to. To actually engage in law enforcement in our state without, you know, being essentially driven to spend all of our resources on supporting immigration enforcement. They also make an argument that this surge has violated the equal sovereignty principle. And this is a novel use of this. But essentially what they're saying is you're targeting Minnesota because of Minnesota's policies and because of the perception of the politics in Minnesota, and that is not treating states equally. You're not going to Texas or Florida with your surges, even though they have more undocumented immigrants than we do in Minnesota. You're coming to Minnesota with this surge for political reasons.
- [32:04]
B
So it's like a pretext argument.
- [32:06]
C
Yes.
- [32:06]
B
And I have to say, the judge here, I really respected the questions. Now, again, I didn't hear it live, but I heard sort of essentially a live feed of people taking down what was being said. What wonderful questions. And she asked really great legal and factual questions of both sides. She ended in such a wonderful way. She said, if I had a front burner on my front burner, that's where this would be.
- [32:33]
C
Yeah.
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B
But I want to tell you, I'm going to work around the clock, but I need to get this right. Yeah. And you just, you had such confidence in her listening to the argument because this is not about who she, as a policy matter, might agree with, and it's not about her reacting to just like what she's seeing on the street. She's being asked, based on a certain provision in the Constitution, the 10th Amendment, to make a ruling. I actually think it is a relatively tough argument under normal circumstances. It's just that this isn't normal circumstances. And the factual record here is very strong for the state. But the legal argument is one that is, they had to admit, was very novel and unique. But they kept on saying it's novel and unique because this has. Hasn't happened.
- [33:20]
C
Part of the reason this is legally unprecedented and is hard for the judge, and she wants to take her time with it, is because the federal government, putting aside the snarkiness in their opposition to this motion for a temporary restraining order or preliminary injunction, it's very snarky and it's, you know, calls the state's claims frivolous and it's very rude. But at core, they're making an argument that is hard to deny exists, which is under the Supremacy Clause, you, the judge, cannot bar the federal government from going into any state and enforcing federal law. And so what we have here is a clash between the Supremacy Clause that says federal law is supreme and the states cannot prevent federal government from enforcing federal law. We have that clashing with the state's 10th Amendment rights to the police power within its own state. And so these are both, like, serious arguments. And the reason it's so unprecedented is because we've never had a situation where the federal government's enforcement of federal law not only seems to be so reckless. Right. And so it's tactics, violating the Constitution, violating statutes, people being killed.
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B
Unprincipled.
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C
Right. Right. You've never had something so strong. And that so impacts the ability of state law enforcement, public health and safety and welfare officials to actually do the job they have of protecting their constituents. And so one of the things that has come out that is requiring now supplemental briefing.
- [34:48]
B
Yes.
- [34:48]
C
Is just a remarkable remark letter by the Attorney General, Pam Bondi, to Governor Walz dated January 24th. That is the day that Mr. Preddy was killed. And it's essentially. I mean, this is what Andrew referred to in the opening as the extortion letter. It says that if you do three things, we will consider pulling ice out or at least reducing ice and CBP's presence in this surge. One is share all of Minnesota's records on Medicaid and food and nutrition services programs, including the Supplemental Nutrition Assist Program data. And this is so that the federal government can investigate fraud. So first, share all those records. Second, and I think this one is actually in many ways sort of the most significant here in signaling why they're targeting Minnesota. Repeal your sanctuary policies that have led to so much crime and violence in your state. These are the Attorney General's words. We've talked before about sanctuary city policies, and they are perfectly lawful. They simply say, and I know Minnesota's, they simply say, we will do what we are required to do by federal law, but we won't otherwise cooperate with federal immigration enforcement because that's a federal thing, not a state thing, and you can't make us cooperate. That would be commandeering. But she's saying, repeal those policies and do these things. All detention facilities in your state should cooperate fully with ice. Honor immigration detainers. Remember the kind of detainers that are not based on a judicial warrant. They're just based on somebody in DHS saying this person's here unlawfully. And permit ICE to interview detainees in custody to determine immigration status. I urge you to reach an agreement with ICE that allows them to remove illegal aliens in custody of Minnesota's prisons and jails and avoids pushing these interactions onto your streets. Now, if they come in with a real warrant and somebody's still in the jail, actually, even if they come in with their immigration warrant and somebody's still lawfully detained, there's nothing preventing them from when that person is released, taking that person into custody. But anyway, I'm digressing. The third demand was allow the Civil Rights Division of the Department of Justice to access voter rolls to confirm that Minnesota's voter registration practices comply with federal law. All right, so three things. Give us access to your Medicaid and Supplemental Nutrition data, repeal your so called sanctuary city policies and give us your voter rolls.
- [37:11]
B
Okay? So by the way, those people who are sentient human beings and are loyal listeners will think back to the Eric Adams criminal case where the federal government basically was like, we're going to dismiss this case, but we're going to want it be done without prejudice because we want to have this sort of Damocles hanging over his head. And what was claimed was that they're doing this so that he will toe the line on the federal government's immigration policies. So this in many ways breathed new life into a very challenging argument by Minnesota. And the judge very much latched onto this and gave the federal government a very hard time about these demands and saying how do you justify this? How can you say this is a valid immigration enforcement when you're perfectly happy to withdraw immigration if you get voter data? How does voter data in any way relate to the immigration problem? And so she basically is like, this is commandeering and extortion. She didn't use the phrase extortion, although she is using the phrase commandeering, because that's a term of art, which the federal government isn't supposed to commandeer a separate sovereign in an impermissible way. And so Pam Bondi, not the smartest letter in the world, but it basically comes down to, once again, the administration saying, I won't even say any more. The quiet part out loud. She's screaming the loud part, full voice, which is that we are planning on using every possible tool to have sort of a gun to your head to do exactly what we say. And this is the party of states rights. Like, let's just remember that this is supposed to be the Republican Party if.
- [38:58]
C
You'Re a state that is aligned with this party, right?
- [39:02]
B
No, exactly. I mean, it used to be about sovereign states and respecting states rights. It is now about respecting red states. Because you don't see any of this, any of this kind of activity happening.
- [39:15]
C
In red states except for blue cities in red states like Memphis.
- [39:20]
B
So you're seeing it in some blue cities and you are seeing it now in Maine. And one of the things is, our colleague Joyce Vance has been pointing out is that the news is so outrageous and so abrupt that some of the sort of outrageous things that she is seeing and observing in Maine is not getting that attention.
- [39:39]
C
That's right.
- [39:40]
B
More on that later. So this is one where I would say, Mary, you and I are keeping our eye on this issue of the Pam Bondi letter and how that plays, because to my mind, legally, this is a hard argument for the state to win. But that letter gave me some pause and I thought gave some real fuel to the plaintiff's claims.
- [40:00]
C
And that's clear by the judge's order for supplemental briefing. She put out an order after the hearing yesterday that says defendants shall address plaintiff's assertion that the purpose of Operation Metro Surge is to punish plaintiffs. And remember, plaintiffs here are Minnesota and the cities of Minneapolis and St. Paul. Is to punish plaintiffs for adopting sanctuary laws and policies, coerce plaintiffs into changing state and local law, compel plaintiffs to direct state and local resources to facilitate information sharing to aid federal immigration enforcement, and cause plaintiffs to direct more state and local resources toward holding immigration targets in detention for longer periods of time than otherwise allowed. The court finds that additional briefing on this issue is necessary because it was explored most clearly in the reply and in light of recent factual developments. And so the federal government has until Wednesday, January 28, 6pm to address these issues, these issues that are raised not just by the Bondi letter. The Bondi letter I think was the real sort of icing on the cake, but also by other statements made by high level officials, also indicating if you do xyz, maybe we will pull back on the surge. And I should be clear. I mean, I was talking about the clear inference from her letter when I talked about if you do this, we'll pull back on the surge. She doesn't explicitly say those words, but she says, I write to urge a change. Right. And the implication in context with everything else going on is pretty clear. I think it's worth pausing here also to just remind people that this case brought by the state and the cities is separate from the case we discussed last week, brought by protesters and observers who had been detained without reasonable suspicion, sometimes very violently attacked and tackled and restrained by federal immigration authorities, and sometimes just for doing things like following cars, they had been stopped. The judge there is the same judge as the judge that heard this case yesterday brought by the state in the cities. And that judge had issued a preliminary injunction which we discussed last week, which basically said you can't detain people or stop people without probable cause. You can't stop them without reasonable articulable suspicion. And when they're engaged in just simple peaceful protests, that wouldn't be that type of reasonable articulate suspicion or probable cause of a crime. You can't pepper spray peaceful protesters. That decision was appealed on an emergency motion to stay. Well, first of all, that decision was appealed to the 8th Circuit. And in also the course of appealing, the government sought a stay of the injunction pending the appeal. By now all of our listeners know all about the stay business because it happens in practically every case.
- [42:49]
B
The stay of a stay.
- [42:50]
C
The federal government loses exactly the stay of a stay. And yesterday the 8th Circuit issued that stay in a very short opinion. And it's a problematic opinion because the panel there said that the grant of relief to a broad uncertified class. So one of the things that that that case tincture was it was brought on behalf of those named plaintiffs who had personally experienced these various things we've been discussing. But they were bringing on behalf of a class of all protesters and observers who had or would face that type of excessive force and unconstitutional conduct by federal immigration officials. And the panel thought that that was too close to the universal injunction that was called into question by the birthright citizenship case of last summer, where the Supreme Court said universal injunctions really should not be granted unless needed for complete relief. And they said class actions are an alternative to that. And Here, what the 8th Circuit is saying at this very preliminary stay posture is that the grant of relief to such a broad, uncertified class is just a universal injunction by another name. Much more to come on this as this case proceeds through appeal. But that is just a misinterpretation of the CASA case.
- [44:08]
B
Yeah, totally. And it was married. Just quickly, it was 2 to 1 on the issue of the pepper spray where there was a judge who said, look, I think the order that you can't pepper spray peaceful protesters is specific enough and valid enough and doesn't violate CASA's holding. And that should have been allowed. There was a lot of concern by all three judges about the sort of. Whether this was a clear enough order. And if you just say comply with the law.
- [44:37]
C
Yeah. Their second basis was it vagueness.
- [44:40]
B
But suffice to say, a very, very conservative court of appeals has now stayed the district court's order. So the district court's order is not in effect. Now. Mary, should we take a quick break and come back and talk about the ICE memo that a whistleblower has leaked, which you sort of previewed. But should we talk about that some more? Because I think it's super, super important and I have to say, as somebody who teaches Fourth Amendment law, it was. What's the word we keep on using, Mary? Triggering?
- [45:10]
C
No. Yes.
- [45:11]
B
But let's take a break and come back and talk about what ICE is now saying about its legal authority to go into people's homes.
- [45:19]
C
Sounds good.
- [45:28]
A
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C
Ollie.
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- [47:03]
C
Welcome back. So it was revealed, as Andrew pointed out, through a whistleblower complaint filed last week, I guess, that back in May, May 12, the acting director of ICE, that's Todd Lyons, who we've already mentioned today, issued a new guidance to all ICE personnel that changes policy quite a bit about how administrative warrants can be used and actually says, and I'll read it and then toss to you, that although the U.S. department of Homeland Security has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the U.S. constitution, the immigration and Nationality act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose. Accordingly, in light of this legal determination, ICE immigration officers may arrest and detain aliens subject to a final order of removal issued by an immigration judge or the Board of Immigration Appeals or a U.S. district Court judge. And that's just talking about a final order of removal in their place of residence. That was remarkable.
- [48:18]
B
So this memo came to light because of a whistleblower, and the whistleblower recounted the contents, the memo itself, and also something that reveals what Mary and I used to in our former life call consciousness of guilt, meaning that they knew something was controversial here because the whistleblower has reported that although the memo purports to be issued to sort of all ICE personnel, it did not go out to all ICE personnel. It was kept under wraps, and people were allowed to see it but not keep it. And so. Hmm.
- [48:58]
C
Why?
- [48:58]
B
Yeah. Yeah. So, I mean, if that's your view of the law, that's your view of the law. It's just so freaking outrageous that you would do that. And frankly, even if you wanted to test the law, you would bring a test case. You would be very public about it. Because you know what? If you're right, great. Wrong Then you're going to comply with the law. But this was basically, we're not going to tell anyone. We're just going to do it and like, catch me if you can. That's what the whistleblower was reporting. Now let's turn to what's wrong with this. So I think to understand this, there's some, again, I'm, I know everyone who listens to this is thinking, oh, you're already into law school. They're like, I've already finished my second year of law school and I'm ready for my third year. But this is one where you really don't need to have, have lots and lots of legal background. So bear with me because I'm going to give you some basics, but it's not that complicated. The first and most important thing is when Mary says that the Department of Justice's view here, what the administration is saying, and here it's coming out of ICE and the Department of Homeland Security is saying that it's enough if the executive branch has made the determination. Because when people say the immigration judges, and if you could see me, I'm using air quotes, the immigration judges have issued an order or the immigration judges have found judges is sort of a misnomer there. I'm not trying to denigrate those judges. I'm just trying to point out all of that happens within the executive branch, that is not within the judicial branch.
- [50:37]
C
But even so, I don't want people to be confused that they think that these administrative warrants are even signed by immigration judges, because they're not. The reference in this memo to immigration judges is that what the guidance is, is you can only execute an administrative warrant at somebody's house where they live if the person has been subject to a final order of removal by an immigration judge or a US District court judge. But those judges, it's not even those judges which still are part of the executive branch. They're not Article three, the judicial branch.
- [51:07]
B
Judges, not the United States District judge, but any immigration judge is just part of the executive branch.
- [51:14]
C
But they're not even sign. Signing these warrants.
- [51:16]
B
Exactly. And the other is, you remember we have a president who says, I control the entire executive branch under this expansive unitary executive. So this is the last administration to argue that, don't worry, they're detached and neutral and independent. Because the president's whole view is everybody in the executive branch is under my thumb. And so this is just the executive branch saying we want to do it. And so there's no oversight. As Mary pointed Out these are just decisions being made by somebody in the executive branch. So you basically are judge and jury.
- [51:53]
C
Yep.
- [51:54]
B
The case law in the Supreme Court of the United States and down is that in order to effectuate an arrest in a person's home, if you want to go into the home. Home to arrest somebody, as opposed to arresting somebody on the street. So if you're trying to go into somebody's home to make the arrest and absent exceptions like consent or flight or some national security exception, because, you know, there's always exceptions. But in the court case where you just want to go in and effectuated arrest, you have to have an arrest warrant. And in addition to that, that the case law is you have to have an arrest warrant, and you must have a reason to believe that the person is home. If you know that the person is not at home because you know that they're on vacation in Florida, you cannot go into the home and use that arrest warrant as an excuse.
- [52:54]
C
And the arrest warrant, to be clear, who has to sign the arrest warrant? Andrew?
- [52:58]
B
A judge, A Federal Judge.
- [53:02]
C
Article 3. Member of the judiciary branch.
- [53:05]
B
Exactly. It is in a different judicial branch. The term of art that you may hear is a neutral and detached. If you could even argue that those administrative warrants are being signed by a neutral person, they are by definition not detached. Meaning the reason for the Fourth Amendment warrant provision, which, by the way, is in the Constitution. Is in the Constitution. It is in the Fourth Amendment. It is the second clause of the Fourth Amendment. This is like, we're not making this up. Go turn to the Fourth Amendment. It's in the language. The framers of the Constitution correctly said that the executive branch needs to have checks and balances, and they cannot be judge and jury. The home is the most sacrosanct place deserving of the highest protection under the Fourth Amendment. And that has been recognized, just to be clear, by conservative and liberal justices for decades.
- [54:07]
C
I want to make sure people understand what this would be like. I think this analogy is apt. This would be like DOJ saying, I want to arrest so and so for a crime that we believe has been committed. We're just going to write up our own little administrative warrant. I, Pam Bondi, I'm gonna sign that, and then you can go FBI and you can go into the person's house and arrest the person. I mean, what DHS is saying is the same as that they're saying exactly. We think this person is unlawfully present. I'm gonna write up a little warrant. Go ahead. Go get him in his House never went before a court, never went before a judge.
- [54:45]
B
I love that analogy. And you know why? Because it just feeds into the second thing I wanna comment on, which is that the general counsel in defending this in his op ed said well one of the reasons that I could distinguish this from Mary, your example, because it's really hard to quibble with what you just said. That's like a really, really good example is the general counsel of DHS takes the position that under the law it's been widely recognized that people who are in the country but can be removed don't enjoy the same fourth amendment rights and that citizens and non citizens have very different rights. By the way, you know the last time I heard something like that was when Stephen Miller said it after the first Muslim ban before it got changed into the second and third iteration. And I remember at the time thinking well let's see, that's not the law.
- [55:41]
C
That has never been held by the Supreme Court.
- [55:43]
B
Exactly. I mean that is just not the current law. And I have to say I don't think it will be the law. And I can give you one of the reasons, which is if you watered down the constitution that way, it's going to hurt all of us. Because a lot of times agents aren't really sure who's there. And so let's say look at that home, there's a citizen and a non citizen there. Well, under the general counsel's theory, you will have violated the citizens rights. And so long story short short, the fourth amendment applies under current law to everyone in the United States.
- [56:20]
C
That's right.
- [56:20]
B
Period. Full stop.
- [56:22]
C
Kind of like the first amendment also applies to everyone in the United States. Period.
- [56:27]
B
That actually is such a great point because we have Judge Young in Massachusetts having to say the same thing. Mary, you and I read over this weekend when we were texting each other and trying to keep up with everything that's going on. Federal judge in Minnesota said the same thing in a decision that this view of ice that they can just go in on some administrative warrant. Nope, no you can't. That you have to have a judicial warrant.
- [56:56]
C
That's right.
- [56:57]
B
And by the way Mary, this is what's so crazy. If you have the goods, if you've got the probable cause, get the friggin warrant. I mean that's the thing that is unbelievable to me.
- [57:08]
C
Me.
- [57:08]
B
Why have this fight? Because if you have the evidence, you and I have been lawyers advising clients. I've actually been in an agency where I'm surrounded by non lawyers. First of all, I think the agents I worked with would be, of course I want to get the judicial warrant. I want that backing. I want cover. I want people to know I did the right thing. But this is where as a lawyer you would be like going, what are you talking about? Why do you want to take a shortcut here? Because you need to have probable cause. You want to be doing the right things thing. So just go to a judge and get it. And if you don't have it, you shouldn't be doing it 100%.
- [57:43]
C
Before we end, I do want to come back to something we have mentioned a couple of times throughout the episode but haven't really explained. And that is other things that have been going on that if involved. The chief judge in the U.S. district Court in Minnesota, that is Patrick Schultz. He was a George W. Bush appointee and he is the chief judge judge. A couple of significant things happened last week. We mentioned that the federal government had sought arrest warrants for five different people allegedly involved in disrupting church services over the weekend, including some very prominent activists, but also including journalists. A magistrate judge had signed two of those. I'm sorry, more than five had signed two and rejected five of them for not having probable cause. The US Government appealed immediately to the district court. It came to Judge Schiltz and he said, this is very, very unusual. He surveyed every Judge in the 8th Circuit, every district court judge, to say, have you ever seen this happen before? Where the US Government would, rather than just go get more evidence and take it back to the magistrate judge or go to the grand jury and seek an indictment, would actually appeal. A magistrate judge's saying there's not probable cause. And every judge apparently said to a him, no, that's never happened before. He didn't say, I don't have the authority to review what a magistrate judge does. A magistrate judge, by the way, is not a lifetime appointed, presidentially nominated and Senate confirmed Article 3 Judge. They are appointed by the judges of a district court for terms of years to act in a judicial role, but they don't have all the authorities of an Article 3 judge. So oftentimes it's their role to sign off on warrants and so they usually can appeal things to the district court judge. But this was so unusual here that he wanted to take some time to think about it and talk with the rest of his judges on his bench about it before he agreed to review these warrants. The US Government then went up secretly and filed a petition for writ a mandamus in the 8th Circuit to demand that These get reviewed or to review them themselves. But he was never even shown this mandamus petition and ordered by the 8th Circuit. He found out about it because the 8th Circuit circuit told him to file a response. So he was trying to guess at what the government was even arguing. This has all now ended because after this big kerfuffle and back and forth, the government has now withdrawn its requests to have those other warrants signed. But one of the things that I think is salient about one of the chief judge's responses to the 8th Circuit was, I am dealing with a number of emergencies, including a lockdown at the Minneapolis courthouse because of protest activity, the defiance of several court orders by ICE and the illegal detention of many detainees by ice, including yesterday a two year old. And I have been given a little over an hour to submit my response to questions the 8th Circuit had to a secret petition. Exactly.
- [60:38]
B
Go back to when you were at the Department of Justice. And let's assume I am one of the attorneys reporting to you in the National Security Division. And I say, hey, Ms. McCord, can I talk to you for a moment? Probably. I'd be like, mary, can I talk to you for a moment? Right. I have an idea. Why don't we file a mandamus, which is already something that's extraordinary, Very extraordinary. But I'd like to do it in secret. Let's not tell the district judge so that we can sort of hoodwink him.
- [61:08]
C
Yeah.
- [61:08]
B
Isn't that a good idea? Because then we won't get an opposition. Right.
- [61:12]
C
Well, I would say no. Hard. No, that's hard. No first step, hard.
- [61:15]
B
No second training.
- [61:17]
C
Yeah, that's right. And so just to follow up on what he's saying, like I'm dealing with this, here's my response. I didn't tell them I wasn't going to review it. I said I wanted to talk it over with my fellow judges and I will give them a response in a few days. But meaningfully saying, I'm busy with some other things. One of the other things he was busy with was the dozens of court orders that ICE had failed to comply with. And that precipitated the order we've alluded to directing the acting director of ice, Todd Lyons, to appear in his courtroom this coming Friday to explain why orders are not being complied with. And here's what Judge Schiltz said. This is one of dozens. And this is in a particular case where a person who'd been taken into custody had received an order that he had to be given a boundary Hearing within a certain number of days. I think it was seven days or released, and the DHS just didn't do it. He says this is one of dozens of court orders with which respondents have failed to comply in recent weeks. The practical consequence of respondents failure to comply has almost always been significant hardship. Hardship to aliens, many of whom have lawfully lived and worked in the United States for years and done absolutely nothing wrong. The detention of an alien is extended, or an alien who should remain in Minnesota is flown to Texas, or an alien who's been flown to Texas is released there and told to figure out a way to get home. He then says the court's patience is at an end. Accordingly, the court will order Todd Lyons, the acting director of ice, to appear personal before the court and show cause why he should not be held in contempt of the court. And I think that the part I read was so salient because this is the consequences for human beings when ICE is refusing to comply with court orders. The burden is then on them. They spend time in detention that they shouldn't have to spend in detention. They have to get themselves home from a place that's 1,000 miles away from where they live. I mean, it's just awful.
- [63:09]
B
Awful. And so. So maybe just to continue to something where there was violations of court order according to two federal judges, but there were results. We're going to move to the Eastern District of Virginia right in your backyard, Mary, where Lindsey Halligan, in spite of the fact that a federal judge had said that she was not lawfully appointed and could, could not serve as the U.S. attorney, she continued in that position and she continued to have her name on papers filed by the U.S. attorney's office all over the place. So lots and lots of filings with their names on it. Wait.
- [63:52]
C
More than one question. The chief just says, now you already were unlawfully appointed as interim, but now even the start of your interim 120 days is over. We're advertising for the position as the interim U.S. attorney in Eastern District of Virginia, and the judges will appoint the person to that position.
- [64:10]
B
And the judges were concerned, saying that this is a form of fraud and that Lindsey Halligan had to stop. This is the quote, masquerading unquote as the Eastern District's top federal prosecutor. The judges said that if people in the U.S. attorney's office continued to file papers with, with their names on it, they could subject themselves to disciplinary action for doing that. And that led to Ms. Halligan stepping down. And the reports are that she is no longer serving anywhere in the Department of Justice. That is reports from NBC News. And so that is an example of the judges actually putting teeth into their orders. It is though, remarkable, remarkable that it took this long.
- [65:01]
C
Yes.
- [65:02]
B
So Mary, I want to thank you so much. It has been such a horrendous, horrendous last couple weeks, horrendous time since Saturday. It's nothing compared to the people of Minnesota and to the families involved. And I know everyone who's listening to it and you and me and the staff here at Main justice. This all our hearts go out to everyone there and thank you all very, very much for listening. These are times when it is so important to stay engaged, but it can be really difficult. So all of us really appreciate your listening. Remember that you can subscribe to Ms. Now Premium on Apple Podcasts and you can get this show and other Ms. Now originals ad free. And you'll also get subscriber only bonus content and once again, if you subscribe before the end of the month. So that's really coming up. So take advantage if you want to. You will get three months free.
- [66:06]
C
This podcast is produced by Vicky Virgolina. Our associate producers are Rana Shabazzi and Iggy Monda. 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 MSNow Audio.
- [66:27]
B
Search for Main justice wherever you get your podcasts and follow the series. Tonight's Meal Tilapia Surprise with Boiled Cabbage. Begin cooking steps 1 through 50 now.
- [66:55]
A
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