← Main Justice
Main Justice
Mueller's Legacy, Press Freedom, and the Showdown Over Mail-In Voting
00:54:10
Robert Mueller’s legacy, a big win for journalists, and SCOTUS hears the mail-in ballots case.
Loading summary
Transcript100 lines
- [00:00]
Opendoor Advertiser
Cash now, more later From Opendoor gives you cash up front for your home, plus all the profit later. That's no chaos now. No cash left behind later. Skip the showings now. Pocket extra profit later. This is so simple now. This is so awesome. Later or sell fast now and pop the champagne later. Cash now, more later. Now available nationwide. Start your offer@opendoor.com radio profits calculated after fees and costs. Eligibility and offer price may vary.
- [00:32]
Range Rover Advertiser
Mud, sand, snow, the track. Places where excuses don't work. Where capability is something you prove one race at a time. Off road racing, Formula one, different worlds that pose the same question. What are you made of? Every ground is our proving ground. Ready, set, forward.
- [01:04]
Andrew Woisman
Hello and welcome back to Main Justice. It is Tuesday morning, March 24th. I am Andrew Woisman and I'm here with my co host, Mary McCord. And Mary, we have something, we have actually two special things to announce and neither of them is that this is the week after my birthday.
- [01:24]
Mary McCord
So last week's coverage of your birthday was inadequate. So now we're in the pageant. We're in birthday pageant. So yes, we are still celebrating his birthday. So another positive thing. Although I guess we could decide whether or not it was a positive thing that we ever had to start this podcast. But we are, we are now three years in. This week is our three year anniversary.
- [01:45]
Andrew Woisman
Isn't that unbelievable?
- [01:47]
Mary McCord
It is, it is.
- [01:48]
Andrew Woisman
So for the loyal, loyal, loyal listeners who've been stuck with us for three years, thank you. And for even new people, thank you for listening. But Mary, when we left government, did you ever think that this is what we'd be doing?
- [02:01]
Mary McCord
I did not. I did not. But when I got the call about the widely expected indictment of Donald Trump by the Manhattan District Attorney, Alvin Brad, asking, hey, would you like to do a podcast with Andrew to talk about this? I thought, well, of course. No, we did not know that would turn into three years of podcast. Two years as prosecuting Donald Trump and now a little more than a year of being Main Justice. But it's been a really great experience. It's fantastic to do it with you. And, you know, so long as we can keep talking about things that are relevant to the American public and the world, frankly, as long as we can keep doing that.
- [02:37]
Andrew Woisman
We will.
- [02:38]
Mary McCord
Yeah.
- [02:38]
Andrew Woisman
It is great to be able to both give our insider perspective, having been at the Department of Justice, and to give a sense of how that works and then to translate just a lot of legal concepts in cases that are so important to the country, whether it was before his reelection or now after actually that was one of the things. But there's another thing that we're doing and it's great. It's sort of like a new thing to start off beginning our fourth year. I can't believe we're saying that.
- [03:10]
Mary McCord
That's right. Starting today, you can find us on YouTube @MS. Now. Main justice, all one word, main justice. This is our initial launch of the podcast on YouTube. And no, you will not be seeing us recording it, at least not just now, which is a good thing because I don't look camera ready this morning. But it does open up another platform for people to access the podcast. So we're excited to expand our range that way.
- [03:37]
Andrew Woisman
Yep. And that's the MSNow channel. So there are lots of other offerings there. There'll be a link to the Main Justice YouTube access in our show notes so people can go to that.
- [03:47]
Mary McCord
And of course, you can still get it on Apple and Spotify and all the places you get your podcasts, all
- [03:53]
Andrew Woisman
those old fashioned ways.
- [03:54]
Mary McCord
That's right, yes. So what are we going to talk about?
- [03:57]
Andrew Woisman
We have actually some substantive things to talk about, but what's on our dance
- [04:01]
Mary McCord
card, Mary so we will start, of course, everyone who listens knows that you and I spent a very long time at the Department of Justice and you also spent a significant amount of time as general counsel at the FBI. And so both of us in all of those roles and more worked with Robert Mueller, the former FBI director, a longtime prosecutor, most recently the special counsel investigating Russian interference in our 2016 election, where of course, you worked closely with him, Andrew. And so we will talk and really pay tribute to what is, in my opinion, a person who epitomizes public service in every possible way. And so I think we both have a lot of things we want to say about Bob Mueller. We will then talk about an opinion issued at the end of last week by Judge Paul Friedman in the district court here in D.C. that was about the New York Times challenge to the new Pentagon Department of Defense policy of basically saying if you want to press pass here to cover the Pentagon and to have an office in the Pentagon, you have to pretty much acknowledge and promise you're not going to ask anybody any questions. You're just going to take the information that we, the Department of Defense, provide you and that's what your reporting will be. And they said that's a problem for us.
- [05:14]
Andrew Woisman
The policy that was being implemented basically said that if you just do your job, the risk is that you lose your credentials. And that's right. So we'll get into all of that.
- [05:25]
Mary McCord
And many people I'm sure, read last night and this morning about the argument in the Supreme Court. Yesterday it was about Mississippi's law. But it's a law that exists in some form or another in 30 states which allows people to mail in their ballots. And so long as their ballots were postmarked by election day, they can still be counted, even if they don't actually get to the election officials until days after election Day. So this is all about whether when Congress set Election day, that means ballots have to be just cast by election day, or does it mean they actually have to be received by election day? And we will dig into those oral arguments. And I would say right now, to me, that decision is very much up in the air. There were tough questions on both sides.
- [06:12]
Andrew Woisman
They were. So should we start with a discussion of Robert Mueller? I think most people who listen to this have a good sense of his resume. But then I think both of us want to take you a little bit behind the scenes. But just briefly, here's a man who was born into, you know, he had a lot of advantages and he went to very good schools, graduated from Princeton, got a master's at nyu, and then he volunteered to serve in the military. He was a Marine in Vietnam.
- [06:44]
Mary McCord
In Vietnam.
- [06:45]
Andrew Woisman
He was decorated there. One quick anecdote at his FBI office on the seventh floor of the Hoover Building, when he came in, on the wall just to his left, he had the pictures of people who served under him who had died. And I think it's going to speak to a lot of things that we have to say. But there was a very, very meaningful time to him and a meaningful experience. But then he spent his entire life in public service, almost exclusively in various roles in the Department of Justice. Obviously, he's very well known for having spent 12 years as the director of the FBI. He started a week before 911 and was in charge of really transforming the FBI into an intelligence, not just a criminal apparatus. And to be thinking about how to prevent, not just to catch after the fact. He had served, as you said, Mary, in various U.S. attorney's offices, as a federal prosecutor in Boston, in San Francisco, at Main justice, he has served as a prosecutor of homicide in the D.C. u.S. Attorney's office. So an incredibly glittering experience before he did something after he left the FBI, but which is he's probably most well known for publicly, which is being special counsel, where he had been selected by the then existing Department of Justice administration. Rod Rosenstein, a Republican deputy attorney general, having been selected by Donald Trump and asked Robert Mueller to do this. And Robert Mueller, as is his want, which is when call to service did that. And he's a very private person. He used to say, live by the press, die by the press. He was just a very quiet person who didn't look for the limelight. So that's obviously how he's most well known to the public, even if you and I and many, many people in the Department of Justice know in many, many other ways before he had that very public role. That's just a brief overview, but it doesn't really tell you about the man fully.
- [08:59]
Mary McCord
That's right. And just to start with, my earliest memory is 1995, when he came to the U.S. attorney's office in D.C. where I had only started in 1994. So I was still at the very lowest levels doing misdemeanors and then gun and drug cases. And this man, who had already been a presidentially appointed Senate confirmed United States Attorney in Boston, he had already been the head of the Criminal Division at Main Justice. And in Washington, D.C. in the 1990s, we had a very serious crack epidemic and homicide problem, much of the homicide driven by the crack cocaine market. And he saw that problem and he reached out to the U.S. attorney, Eric Holder at the time, who was the U.S. attorney. Later, of course, people know he became the Attorney General of the United States, but He was the U.S. attorney who hired me. He's the person who Bob Mueller reached out to and said, I want to come prosecute homicides. Now, just to be clear, in D.C. the U.S. attorney's office not only prosecutes federal crime, it also prosecutes the equivalent of state crime. D.C. is not a state, and most homicides are state crimes. So in DC Means DC Crimes. That means they're not litigated in federal court, they are litigated in D.C. superior Court, a bustling, busy city court like every major city has, where people are coming and going all day long because there are trials going on on every floor of the courthouse. You know, that's where I cut my teeth. That's where every prosecutor in D.C. learns how to be a prosecutor before you actually start prosecuting in federal court. And he went the reverse direction. And so to me, even as a junior prosecutor in that office, when I heard that Bob Mueller was coming to prosecute homicide cases, it was just sort of staggering to me that somebody would see that calling and that need and say, I'm going to go jump right into the trenches in the middle of a real crisis in D.C. and that means getting out in the communities. That means interviewing the families of victims. It means interviewing witnesses at a time and a place where witnesses often did not want to talk to the prosecutor because they were afraid, right? They did not want to talk to investigators. And he did what he thought needed to be done, and he did a very good job at it. He then became the head of the Homicide division, but he then went on from there, right? Went back to federal prosecution and ultimately, as you had already indicated, just a week before 9 11, became the FBI director.
- [11:27]
Andrew Woisman
So I know Director Mueller, who at the time kept on saying, just call me Bob, but no one did. He was Director Mueller for the FBI. And I knew him because I first was this special counsel. He had one special counsel at the time. And I reported directly to him on essentially special projects, whatever he needed. And I went back as the general counsel and then I worked with him, as you noted, when he was the special counsel appointed by Rod Rosenstein. So I was trying to think of, and there's so many anecdotes, both personal and professional, and I was trying to think of one that would give people an idea of who he is. And here's one illustration. When I got to the FBI, there had been a problem. I mean, of course, there's 36,000 employees. There are going to be problems. And this is an illustration of something that he instilled in all of us about what to do when you have a problem. The issue was that it turns out that the FBI had put together training material that had said things about Muslim and the Muslim community. This was post 911 that were just simply both wrong and inflammatory and just should never, ever have been in the training material. And Mueller being Mueller said, okay, we need to do a complete scouring of all of our training material. We need to determine how this happened. We have to fix it. We have to then come up with a system to audit that. However we're fixing it, it's not going to reoccur. And then we need to do one thing more. We're going to meet with the leaders, various leaders in the Muslim community groups, and he didn't delegate that. I still remember his going into a room, taking off his jacket, which already is a big deal because he's, you know, he's a very proper, buttoned up person and he was not going to be interrupted. He canceled everything until every single person there had an opportunity to ask him every single question they had and to hear from the director of the FBI. He wanted them to know how important this was to him and what they were doing and what had happened with no sugarcoating of the problem. And he wanted to make sure that they heard it from him. And he also wasn't going to say somebody else has to do this. It was important for him that he do it. He also did something that started with Louis Free, which had to do with training new agents. Louis Free had insisted that new agents, as part of their training, go to the Holocaust museum in Washington D.C. you know, the idea was new agents should not be that young. They should have some experience. We've talked about this in connection with sort of hiring practices. But he wanted to instill in them what can happen when you don't understand checks and balances and limits on authority and what can happen when you have a sense of your power too broadly. And he wanted them to see that Mueller wanted them to do something else. He wanted them to go to mosques. He wanted people to see other religions, other experiences. He didn't want it to be foreign to people and to understand the diversity of America. And it's, to me, both of those things are such a reflection of the man and final thought I had, Mary, is I've been listening to a lot of people talk about Mueller and saying that, you know, this is sort of the end of an era and a dying breed. And I understand that. And I understand it. If you were saying that, do we see people like that in leadership positions in Washington? But the one thing I disagree with is that one of the legacies of Robert Mueller is people should understand you. And I revere him. And we are not exceptional. We are not aberrational. We grew up in a Department of justice where Robert Mueller was revered and his values are instilled in so many people and are still instilled in us.
- [15:45]
Mary McCord
That's right.
- [15:46]
Andrew Woisman
And so of course he's exceptional because he's exceptional at him being that role model. But I think his example is really something that lives on in hundreds if not thousands of people who worked with him and also just knew him by reputation, which was so sterling for us growing up.
- [16:06]
Mary McCord
I a hundred percent agree. And you know, the last thing I would say is the thing that you indicated so many people now think of him and associate him with is his final role as special counsel in the investigation into Russian interference in the 2016 election. And think about this. He had left after 12 years. He had been extended two years by President Obama, a 10 year term, but he had been extended two years, which Congress readily said that's Fine. He had just left. He was going to private practice, which he never really wanted to do, but really is kind of retiring and going into private practice. And then he gets asked to do this by the acting attorney general because Jeff Sessions had recused as Attorney general over, very famously, investigation. And Rod Rosenstein was in those shoes. And he's the one who asked Bob Mueller to do this. Imagine getting that call. You know, Donald Trump has just fired James Comey. You know that he's done that mostly because of this Russia investigation. You know, this is going to be in many ways a thankless task that you are going to be in the President's sights the entire time. You're going to take withering comments from him and criticism. And did that cause him to hesitate? Not at all. Nor did it cause you to hesitate. Andrew Wiseman, when you went to work
- [17:20]
Andrew Woisman
for Robert Mueller, this is, as a friend of mine said, which is true, you do not say no to Robert Mueller.
- [17:27]
Mary McCord
Well, that's. That's a good point. And I was interviewed by the Mueller team. In fact, I remember passing you in the hallway that day when I was there to be interviewed.
- [17:34]
Andrew Woisman
I'm like, well, hi, Andrew. And I think that is maybe a good note to end on, which is that for Robert Mueller, public service wasn't just a calling, it was a privilege. And he drove himself so hard and took it so seriously and worked so hard, and he required that of the people who worked for him, too. But because you knew the person who he was driving the hardest and held to the highest level was himself. And you knew what he was saying is that I demand and the public demands for whom we work, nothing less. And it exuded every single moment you were with him.
- [18:14]
Mary McCord
Yes.
- [18:15]
Andrew Woisman
Was that sense that it wasn't just that he wanted excellence, it was the sense that he needed excellence because of the honor to have the mission of working for the public.
- [18:26]
Mary McCord
That's right. Let's take a break and come back and switch gears to Judge Friedman.
- [18:39]
Range Rover Advertiser
If you want to make an impact, you set an example. You take the lead, you adapt with intention. And when you move with that kind of purpose, you drive a vehicle that does the same. The Range Rover Sport. With a design that's distinctly British, it blends power, poise, and performance, delivering a drive that feels as refined as it is responsive. Defining modern luxury, the Range Rover Sport features the latest innovations in comfort and convenience, from the air cabin purification system to active noise cancellation, creating a quieter, more controlled experience. Built with raw power and agility, the Range Rover Sport responds with precision 7 terrain modes powered by terrain response 2 fine tunes performance to meet challenging roads ahead choose from a range of powerful engines, including a plug in hybrid with an estimated range of 53 miles. Like you, the Range Rover Sport was designed to make an impact. Build your Range Rover Sport@range Rover.com USSport
- [19:39]
Opendoor Advertiser
Cash now more later from Opendoor gives you cash up front for your home plus all the profit later. That's no chaos now. No cash left behind later. Skip the showings now. Pocket extra profit later. This is so simple now. This is so awesome. Later or sell fast now and pop the champagne later. Cash now, more later now available nationwide. Start your offer@opendoor.com radio profits calculated after fees and costs. Eligibility and offer price may vary.
- [20:09]
Apple Mac Advertiser
There's nothing like your first Mac. Here's what people online are sharing, Rhain says. Everything is just so smooth and fast. I still can't get over it. Syncing stuff between my phone and this is just chef's kiss. Rincredible488 says Apple Silicon basically cures low battery trauma. That's how they felt with their first Mac. How will you introducing the all new MacBook Neo, an amazing Mac at a surprising price. Find out more on apple.comMac.
- [20:43]
Andrew Woisman
So Mary, let's switch gears. There was a decision by Judge Paul Friedman out of again in Washington, D.C. in federal court. And this is a case where the New York Times and a reporter had brought a lawsuit relating to new regulations that were being instituted by the Pentagon, which he correctly talks about the Department of Defense. I immediately thought of you, Mary, because the executive doesn't get to change the name. Little little aside, it's a little bugaboo. Exactly. When I was reading this, I was like, Mary's gonna love this. So turning to this subject here is what is it that the Pentagon wanted to do with respect to reporters and the New York Times and a particular reporter brought this lawsuit. It is noticeable, however, that their position was joined in by a wide range of media outlets.
- [21:44]
Mary McCord
That's right.
- [21:44]
Andrew Woisman
Which is to be commended because it wasn't just CNN but also Fox. In other words, you had mainstream media all being as we've talked about when we talked about law firms and universities here, you saw mainstream media lock arms in terms of what it is. But let me not sort of bury the lead. What is it that the Department of Defense was doing with respect to these outlets that caused them to say, no, we think this violates the First Amendment, the fifth Amendment, and something called the Administrative Procedure Act. But we're going to really talk mostly about the constitutional issues, the first Amendment and the fifth Amendment.
- [22:26]
Mary McCord
So for decades, the Pentagon has always, you know, given press credentials to members of the press, even provided space for many of the outlets to have. In the case of broadcast news, often they had built their own broadcast studios within the Pentagon. I didn't, I say built the studios like equipped with recording equipment and cameras and everything where the print journalists, they had dedicated space. And these are journalists from, you know, like I said, outlets across the spectrum. Those journalists went there and were there every day because there's so much news always coming out of the Pentagon and they had had that type of access. There were places in the Pentagon they couldn't go as makes perfect sense. It is the Pentagon, after all. But they were able to talk to people and ask questions of people. And so this new policy came after, you know, a whole lot of criticism by not only Secretary Hegseth, but press folks within the Pentagon and others, criticism of the way that the press was covering not only Secretary Hegseth before he was confirmed and after he's confirmed, but also covering things that the department was doing and didn't like that type of criticism. Now, I will say this is not the first time that journalists have ever criticized anything that the department or the Secretary of Defense has done. But nevertheless, this apparently got Under Secretary Hegseth's skin. And in 2025, the Pentagon announced a new policy, this was in September, that basically said that these credentials, these press credentials could be denied, revoked or not renewed if the journalist was reasonably determined to pose a security or safety risk to department personnel or property. And the way they defined what a safety risk could be would be that if somebody, if a journalist got had unauthorized access, attempted unauthorized access, or unauthorized disclosure of department information. So what does that mean? Well, that's part of the whole issue. But the way it was interpreted by the members of the press is, and I think the way Judge Friedman definitely interpreted it when they challenged this policy was if we ask anyone any questions and they give us any information that maybe they shouldn't be giving us, then we could be deemed a security risk. And basically we're being told the only thing we can report without risking being deemed a security risk is what you spoon feed U.S. department of Defense, what you put out in your own press statements or your own press conferences in the designated press conference area of the Pentagon, and anything else, we risk being deemed a security risk. And then the policy also required the journalists, if they wanted these press credentials, to sign an acknowledgment that they understand the requirements of this new policy. And their view was, we don't understand these requirements. We can't agree to this because you're basically saying we cannot do journalism. Journalism is asking questions. Journalism isn't sitting there waiting for the department to again, spoon feed some information with the department's own spin on it and then just print it in the paper. We have to be able to do journalism and to get to the constitutional issues. They said this is a violation of the Fifth Amendment due process because this is so vague, we don't know what is going to cause us to run a foul of this policy. And when a statute is so big that it doesn't give the people who are governed by that statute adequate notice of what is prohibited and what is not, then that is so vague it violates due process. And then they also said this is a First Amendment violation.
- [26:14]
Andrew Woisman
Can I interrupt you just before we get to the First Amendment?
- [26:16]
Mary McCord
Yeah. Let's break these down.
- [26:18]
Andrew Woisman
Yeah. There was a second piece that's very, very in the court and Judge Friedman said this very related to this issue of vagueness, which is essentially the journalists don't know when they ask a question are they going to be getting information that the Pentagon thinks is unduly sensitive or not. Then they won't know that. The person giving it may know it. But you may then actually bar the New York Times or cnn. Or let's just take. Conversely, let's assume this is a different administration and you don't want Fox News to be barred because of improper consideration. The second piece that goes with vagueness, the court said, is abusive discretion. Is the idea that this can then lead to the Pentagon applying this in all sorts of discriminatory ways and saying, well, yes, it could apply equally to the New York Times and Fox News. But one administration is going to say, well, I just, I'm going to bar Fox News. And another administration is going to say, I bar the New York Times and you need to have standards that are sufficiently laid out that it cures the vagueness problem. And it doesn't lead the Pentagon to have unfettered discretion. That leads to the problem of essentially it's like viewpoint discrimination that is being masked by having so much free reign. Then that sort of leads us directly, Mary, to the issue of the First Amendment issue. And there before we get to I just want to give a little backdrop on the law that I thought was really important in looking at what the Pentagon did in the First Amendment context. The court cites Supreme Court law that says it's not just what is on the face of the regulation, but it's how it is also implemented. And in this situation that is really, really important because facially leaving the issue, we just decided, the Fifth Amendment issue about vagueness and discretion, leaving that aside, the issue of whether there's viewpoint discrimination that doesn't exist on the face of the regulation. It's not like the regulation says we do not want liberal coverage or we do not want conservative coverage, et cetera. But the issue was how it got applied here, where the court looks at that issue and notes, for instance, that once it was applied and that we're bringing in all sorts of notable journalists. That, by the way, is my sarcasm for the day. The notable journalists who got brought in were Matt Gaetz. Yes. President Trump's one time choice for Laurel Loomer, an influential pro Trump activist. This is how she's described by the court. Mike Lindell, the CEO of MyPillow. Those are just examples of the, quote, new journalists who are all being licensed. And as the court noted, the Pentagon says these are all people who are with the program, essentially that these are people who are going to support Donald Trump. Well, that is viewpoint, that is what it means to have viewpoint discrimination.
- [29:24]
Mary McCord
And the First Amendment point here, right, as you said, is the policy can be neutral on its face, but when it's applied in a discriminatory manner, that can still violate the First Amendment. And I should just back up a minute to say people might be thinking, well, how is it that there's a First Amendment right to even be in the Pentagon, a government building and reporting and asking questions of Pentagon officials to begin with? Isn't that a building that could just close off to reporters and yeah, they could, but they haven't historically. Right. And so once the government says we are going to open this up, it doesn't make it a public forum where anybody can come. It's still a non public forum. But they have opened it up in certain circumstances to journalists. And so once they've made that decision, they can't do that in a viewpoint discriminatory way. So it's not that we all have a right to go muck about the halls of the Pentagon and ask questions, but when they have opened it, they can't through this process of getting press credentials, they can't do that in a discriminatory manner. And Judge Friedman talks about the evidence that shows the undisputed evidence that the policy is viewpoint discriminatory. He says the evidence tells the story of a department whose leadership has been and continues to be openly hostile to the, quote, mainstream media whose reporting it views as unfavorable, but receptive to outlets that have expressed support for the Trump administration in the past. And then he gives an example. In response to reporting by the New York Times on Secretary Hegseth's alleged misuse of the messaging platform Signal, Remember that everyone giving details of an operation, a sensitive military operation overseas. Mr. Parnell, the department's press secretary, posted on X to call out the Times and, quote, all other fake news that repeat their garbage. He decried those news organizations as, quote, Trump hating media who continued to be obsessed with destroying anyone committed to President Trump's agenda.
- [31:27]
Andrew Woisman
Could you just repeat that last part? Because that really, to me goes so much to this idea that as applied that getting to the idea of what's the purpose of the world, because on its face, it is neutral.
- [31:39]
Mary McCord
Mr. Parnell decried these news organizations, the quote, unquote, mainstream media, as Trump hating media who and this is a, quote, continue to be obsessed with destroying anyone committed to President Trump's agenda. So right there, like you say, it's just putting the quiet part out loud in front. This is viewpoint discrimination. And then in terms of what the penalty for this is, in other social media posts, Judge Freeman says, leading up to the issuance of the policy department officials referred to journalists from the Washington Post as, quote, scum and called for their, quote, severe punishment in response to reporting on Secretary Hegseth's security detail. Severe punishment.
- [32:20]
Andrew Woisman
Here's another example of why this is viewpoint discrimination. And you have the following quote that the judge gives on page 13, and it's that we want to make sure that we have the absolute best people working in to protect Americans and that they're on board and willing to serve our commander in chief.
- [32:45]
Mary McCord
Is that the role of a journalist in an independent press? Right.
- [32:49]
Andrew Woisman
And so this was the press Secretary Wilson who was quoted as saying that. And again, I want to make sure that people understand that this is a reason that you had Fox and CNN and the New York Times all saying that this is inappropriate, which is admirable, that they saw this as a real attack on the First Amendment and the shoot can be on the other foot. And this is what the rule of law means and to have respect for the First Amendment. And to your point, which Judge Friedman notes, this idea that the government said to the court here, well, it's a privilege to be in the building. It's not a right to be in the building. That was the Department of Justice's view in defending this. And the judge says that's wrong. Once you open it, as you said, Mary, it's like you could ban everyone, but once you open this, you have to respect the First Amendment and you cannot say it's open, but only to people. I agree with.
- [33:51]
Mary McCord
That's right. And a good illustration of this is one of the things that the Pentagon said that would not be okay under this policy is for gave an example of the Washington Post essentially soliciting from military officials and employees at Department of Defense a tip line, soliciting tips. Fill us in on things that you think the public should know. They said this would violate the policy. When Laura Loomer did essentially the same thing and posted, hey, tips, call me, they said that's okay.
- [34:21]
Andrew Woisman
Right. And the distinction that the government tried to draw is they said, well, Laura Loomer is asking for tips from anybody in the government about any government program, whereas the New York Times was focusing on the Department of Defense. I'm sorry, how is doing it in a smaller way going to be worse than doing it all encompassing? So the judge didn't buy that as a distinction. So, Mary, what was the remedy that he imposed you.
- [34:48]
Mary McCord
So the remedy is he vacates the parts of the policy that we've been discussing, the parts that would say that a person can lose their press credentials based on security risk. And these things that we've been talking about that Judge Freeman said are just the acts, the business of doing journalism. And so, so far, we have not yet seen, at least I checked this morning, a government appeal. I suspect there will be one. The judge did give the government until March 27 to report to him about how they're implementing this change of policy. Right, because this could result in a lot of different journalists and media outlets getting access again that they haven't had since last September. And so we'll see where we go from here. And I'm sure we'll be saying much more about it. I do want to close out with one acknowledgement, though. Judge Freeman understands that there are important government interests here. He's not suggesting that the government doesn't have national security reasons to want to have policies about the press in order to protect national security. But he's saying there also needs to be some access. And I think his conclusion puts it nicely. He says the court recognizes that national security must be protected, the security of our troops must be protected, and war plans must be protected, but especially in light of the country's recent incursion into Venezuela and its ongoing war with Iran. It is more important than ever that the public have access to information from a variety of perspectives about what its government is doing so that the public can support government policies if it wants to support them, protest if it wants to protest and decide based on full, complete and open information who they're going to vote for in the next election. As Justice Brandeis correctly observed, sunlight is the most powerful of all disinfectants. So he's saying you cannot close off the department to viewpoints because it's important for the public to have multiple viewpoints.
- [36:47]
Andrew Woisman
So this decision, you can put in the context of other things that we've seen, for instance, the pressure by the fcc, television outlets and other news organizations. So this idea that if you control the flow of information, if you control the messenger or denigrate the messenger, you can essentially just get one word out and not any contrary words. And in this particular media environment, where we already have a problem of media bubbles, the decisions like Judge Friedman's are so important in order to maintain some access to a divergence of viewpoints. And that would be true if this was a case that was brought by Fox against some so called Democratic or liberal administration that would do the same thing. This is what it means to have a fourth estate. And you and I and Bob Muller, as who we've been talking about, part of being in the public eye is you're going to be criticized and if you don't want that, don't take the job. I mean, that's what happens. And you need to develop a thick skin. The answer isn't you don't get to speak where you don't get access that you can't speak.
- [38:11]
Mary McCord
That's right.
- [38:12]
Andrew Woisman
And so it's useful to step back and realize how this fits into a general strategy that I think there's lots of evidence, we see it playing out. And so kudos to Judge Friedman. We'll keep an eye on this and report back as we see developments. Mary, should we take a break? And there was just a fascinating, fascinating Supreme Court argument yesterday and potentially hugely consequential. Right. So huge. Huge. This is one where it's both interesting legally, but just so important in terms of the upcoming elections.
- [38:46]
Mary McCord
That's right.
- [38:47]
Andrew Woisman
So let's take a break and we'll come back and talk about.
- [38:59]
HomeServe Advertiser
Never happens at a good time. The pipe bursts at midnight, the heater quits on the coldest night. Suddenly you're overwhelmed. That's when HomeServ is here for $4.99 a month. You're never alone. Just call their 24. 7 hotline and a local pro is on the way. Trusted by millions, HomeServe delivers peace of mind when you need it most. For plans Starting at just $4.99 a month, go to homeserve.com that's homeserve.com not available everywhere. Most plans range between $4.99 to $11.99 a month. Your first year terms apply on covered repairs.
- [39:28]
Gold Belly Advertiser
Hey guys, have you heard of Gold Belly? It's this amazing site where they ship the most iconic famous foods from restaurants across the country, anywhere nationwide. I've never found a more perfect gift than food. Gold Belly ship Chicago deep dish pizza, New York bagels, Maine lobster rolls, and even Ina Garden's famous cakes. So if you're looking for a gift for the food lover in your life, head to goldbelly.com and get 20% off your first order with promo code GIFT. That's goldbelly.com, promo code GIFT.
- [39:59]
IXL Advertiser
If you're a parent and want to help set up your child for success, then IXL is right for your family as an effective and affordable online learning program. IXL covers math, language arts, science and social studies using interactive practice problems for kids from Pre K to 12th grade. Listeners can get an exclusive 20% off IXL membership when they sign up today@ixl.com 20. Visit ixl.com 20 to get the most effective learning program out there at the best price.
- [40:34]
Mary McCord
Welcome back. In teeing this up, I think it's important to sort of understand what the Constitution says about Election Day and what Congress has said about Election Day, because the issue in the case in front of the court that was argued in front of the Supreme Court yesterday was essentially what is Election Day? And has Congress, by setting an election day, preempted states from counting ballots that are received after Election Day, even if they were cast by Election day.
- [41:05]
Andrew Woisman
So right now I think a lot of people who are listening to this are thinking, well, I have early voting in my state and I can go and I can either cast my vote in person beforehand or I can send an absentee ballot beforehand. But they also are thinking, I can send an absentee ballot and as long as it's postmarked by Election day, meaning the sort of final day by which you have to have cast your vote, as long as it's postmarked by, then it can be received afterwards within a certain limit. So there's that spectrum of ways to vote. Mary, what did Mississippi do and what's the federal law on this.
- [41:44]
Mary McCord
Yeah. So I'm going to do these in reverse order.
- [41:47]
Andrew Woisman
Okay.
- [41:48]
Mary McCord
The federal law, we start with the Constitution. And the Constitution has a role for Congress in a couple of ways. Even though elections can are largely administered by the states, there is the electors clause. Right. Which is a clause that allows for the states to appoint in a manner that they decide the number of electors. Right. Electors. These are in presidential elections. This is what becomes the electoral ballot, the electoral college ballots. Right. This was what was such a big issue in 2020, when we had alternate slates of electors. So the states can determine how they're going to appoint electors. But Congress has the power under Article 2, Section 1, to determine the time of choosing the electors and the day on which they shall give their votes. Now, that day, the Electoral College day, is not the date of the election that the rest of us vote in. But that's relevant, and I'll tell you why in a minute. There's another section of the constitution in Article 1, Section 4, that says the times, places and manner of holding elections for senators and Representatives shall be prescribed in each state by the legislature thereof. Which sounds like a state can decide what day is the election. Right. But the Congress may at any time by law, make or alter such regulations, except as to the places of choosing senators. In the early years, the states did choose different dates, but then over time, Congress decided it would exercise its authority to choose the election date. So first came in 1845. Congress instructed that the electors of President and Vice President shall be appointed in each state on the Tuesday next after the first Monday in the month of November. Right. That was the first statement of election day.
- [43:30]
Andrew Woisman
Right.
- [43:31]
Mary McCord
And that is a date that the electors are appointed. It's not the date that they then meet to cast their electoral college votes. That's a different day. But that's the day that they, like, become the electors. And we all know that that's how it works, because when we go vote, we're actually voting for the electors in our state, not directly for President. It's kind of a weird fiction, but it's not a fiction.
- [43:51]
Andrew Woisman
That's our system.
- [43:52]
Mary McCord
And we know the popular vote does not always win the Electoral College vote.
- [43:56]
Andrew Woisman
Right.
- [43:56]
Mary McCord
All right, so that was the first time Congress fixed that date, but that date was just for the choosing of electors for President and Vice President. Then after the Civil War in 1872, Congress extended the rule to the House of Representatives, setting the same date. Right. The first Tuesday after the first Monday in the month of November. So now we have 1845 1872, 1914.
- [44:18]
Andrew Woisman
Can I just say so one of the things you can imagine why Congress would be interested in setting some uniform dates when it comes to something like president is so that you don't have, well, Mississippi is going to choose people on X date, but New York's going to choose them on Y date and New Hampshire is going to choose it on Z date. And they can all see what's happening
- [44:40]
Mary McCord
in other states and it could influence the election.
- [44:43]
Andrew Woisman
Right, exactly. And so it's sort of like everyone has to vote together. That's right.
- [44:47]
Mary McCord
And that last dot on the map is 1914, when they extended the election day to also the elections for senators. Right. So we have Congress three times saying, here's election Day. All right. That's just the beginning of the issue, though, because the question here was what does election day mean? And the delta between the parties. And this is the state of Mississippi, through their Solicitor General defending their statute. Right. Which says if your ballots are postmarked or delivered to an election official, it could be through the mail, but they're postmarked or given to a common carrier, FedEx, whatever, by election day, they can still be counted even if they are not recycling received by the election officials until up to five business days after the election. And as we indicated at the top, there are 30 states that allow mail in ballots. Many states have different numbers of days after the election day that they will still count the ballots so long as they were postmarked or the decision made by election day. So this all came down to, does election day mean the date that you make your decision as a voter and cast that ballot, or does it mean the date that it is received by officials? That's what the entire argument was about. And it came down to, did Congress in those three statutes I mentioned, 1845, 1872, and 1914, by setting an election day, did that mean they have preempted states from counting ballots received after election day, even if the choice was made by election day?
- [46:23]
Andrew Woisman
And so here that backdrop is so important for people to understand because, and I hope you agree with me, this is where I thought Justice Jackson just put her finger directly on the issue. And I thought your history points to the same thing, which is you've got the Constitution saying the states get to do what they want and get to decide this absent Congress saying you cannot, and preempting the field. So it all is a question of we know what the states are doing, we know what. Here it's a question of Mississippi. But the court asked Lots of questions about other states and other state practices. So we know there's all these different state practices. But the question is, was that somehow preempted by Congress? Did Congress say anything that this is not allowed, that they directly said, no, we are preempting this and not allowing the states to have votes counted after the election date if even though submitted as required by the state in whatever fashion it is by election day, but they're not received. Or as many of the justices focused on the issue of voting ahead of time, and there were a lot of justices saying, well, if we're going to go down this route of reading all this stuff into this imagined congressional statute that doesn't say anything about this issue specifically, and we're going to start reading stuff in where do we stop? This issue is really one of let's look at the congressional statute. And if the congressional statute isn't barring what the states say, then we've got a Constitution to follow. And as everyone knows, the Constitution is the top law and Congress is less than that. They can't override the Constitution. The default is the states get to do it absent Congress having said no, you cannot.
- [48:25]
Mary McCord
And we started out right off the bat with questions of the Mississippi Solicitor General about, well, what does it mean? Who do you have to submit your ballot to? Could you submit it to your neighbor? And that means that's the decision and the choice that you've made. Could you submit it to a political party operative and that's the date you made your decision? And what about if you submit it in the mail, but the US Postal Service allows you to recall your mail? And so, you know, have you really made a decision? Have you really made a choice by election date if there's this possibility of recalling your vote? And one of the things the Mississippi Solicitor General says is under our law in Mississippi, we don't allow any recall. But then there's questions about, well, how would you even know? And all of these questions that all raise policy issues that Justice Jackson tries to speak to. And another policy issue also that you indicated, which was something that the Chief justice asked both the attorney for the Republican National Committee and the Libertarian Party, which are the challengers to this Mississippi law. And he asked this of the US Solicitor General, John Sauerkraut, who has weighed in on the side of the challengers to this law. He asked, as you teed up, what does this mean for early voting? Because people make their decision really early, and you're saying election day is one day and that's when the choice has to be made, then how does that impact early voting? And that's what Justice Jackson is getting to in this excerpt.
- [49:47]
Andrew Woisman
Yeah, it was so interesting because there are lots and lots of policy issues, but that's not what a court does policy issues or that's what Congress does, or that's what the state legislature in Mississippi gets to do. Coming up with policy issues is like, that's fine, but what does that to do with the court decision? So I think we have now adequately.
- [50:08]
Mary McCord
We teed it up. Yes, we teed up.
- [50:10]
Andrew Woisman
Let's go to Justice Jackson.
- [50:12]
Justice Ketanji Brown Jackson
I guess I'm a little confused about those kinds of policy questions. And I guess I think that the Constitution's allocation of responsibility here actually makes this case about who decides. I mean, there are a lot of policy questions. Justice Alito ran through several of them. Who gets to receive the ballot? How long after can they be submitted? Does it have to be postmarked? I suppose we can add is recall allowed, et cetera, et cetera. But the question of, I think is whether Congress has precluded the states from making those calls, drawing those lines. And your position, as I understand it, is no?
- [50:59]
Andrew Woisman
That's correct, you, Honor.
- [51:00]
Justice Ketanji Brown Jackson
That the scantness of election Day in the federal statutes actually is a point in your favor because it indicates that Congress was leaving it to the state to draw the various lines that might arise in this circumstance. Is that right?
- [51:16]
Andrew Woisman
That's right, you, Honor.
- [51:17]
Mary McCord
So as Justice Jackson, I think pretty persuasively says, of course, obviously I'm putting my thumb on the scale. All of the limited thing that Congress said in 1845, 1872 and 1914 about election day indicates it was leaving it to the states to draw these various lines that might arise in various circumstances. And I think really another important point point here, Andrew, is that Congress has seen states doing these things for years and years. We've had a hundred years of absentee voting by mail. Has Congress ever stepped in and said, excuse us, wait a minute, we meant Election day is the only day that people can cast their ballots. And if the ballot is not there by election day, either in person or in mail, it's over, it's done. Congress could have done that in any of these ensuing years, and Congress never did that.
- [52:07]
Andrew Woisman
One of the things that's interesting about this case, it was very hard to tell where the chief justice is on this issue, where Amy Coney Barrett is on this issue. Lots of people think they are the key votes here because it's very clear where Justice Kagan, Justice Sotomayor and Justice Jackson are on this issue. But one of the issues is if the court were to rule against Mississippi and say that you cannot have these votes counted after, is whether under this other doctrine, whether you could implement this in sufficient time to be in effect for the upcoming midterm elections. And that is sort of a very separate issue. Obviously, the challengers to this have said, oh, there's ample time. You could rule by June, and that gives them tons of time to change the ballots and put people on notice.
- [53:02]
Mary McCord
That is not tons of time for something this major. Right.
- [53:06]
Andrew Woisman
It is very separate. I did think it was interesting that that was not a main part of the discussion. And I'm going to go out on a limb and say I am cautiously, with a heavy, heavy, heavy underlying, cautiously optimistic. And part of it is that there wasn't a discussion of that point, that it is obviously the case that I could be wrong. It is also the case that justices might rule against Mississippi, but say it's not going to go into effect for the midterms, and so that's why they didn't raise it. But it also suggests that if you're somebody like Amy Coney Barrett and you're thinking, I don't see the argument here against Mississippi that she would have asked more questions about a necessary thing for the challengers to prevail on if they want this to go into effect by November. I don't know how you felt, having listened to it, the whole argument.
- [54:04]
Mary McCord
I think it was only Justice Kavanaugh who asked this question, and he asked it of Paul Clement who represented the challengers. And Paul Clement kind of brushed it off, like you said, and didn't take it very seriously. But maybe that might be the case if it was one state that would be implicated by a ruling against Mississippi. But that is not what would happen. Because if what the court says is that Congress, by choosing election day, preempts the states from counting ballots received after election day, even if the choice is made by election day, that is actually going to impact 30 states and something we haven't talked about yet, that can also very much impact the votes of our military and US Citizens living overseas because they vote absentee, they vote by mail in ballots. And those votes, if the state allows them to be counted after election day, so long as they were the choice was made by election day, then if the states can no longer do that, then that calls into question all of those votes.
- [55:05]
Andrew Woisman
Yeah. And there you know, Paul Clemente, who is obviously incredible Supreme Court advocate was just like, no, no, no, don't worry, you're pretty little heads about that. Separate statute, separate issues. Because obviously, just from a perception and politically, it is unacceptable to be saying, oh, wait a second, we're going to disenfranchise all of those people. That's why there was a lot of discussion of you wouldn't use the phrase disenfranchise here. And no, don't worry about the military. We're not going to hurt them. But to me, the principle seemed very, very similar, if not identical, in terms of if Congress was intending to do that, it really hit Justice Kagan's point, which is there's an expression in the law, which is it's a slippery slope, which is once you open the door to something, the slippery slope, it's very evocative, which is you just slide all the way to the abyss. And so where do you stop? And so there was a lot of questioning about that, of, well, if you do it here, why is this not going to mean all these things get gobbled up, whether it's military ballots that get submitted and counted after, whether it's
- [56:14]
Mary McCord
in person, early voting.
- [56:16]
Andrew Woisman
Exactly. So it was a fascinating argument, it was a smart argument, and it was enjoyable to listen to. But all of that was the legal piece. But there was such an elephant in the room in terms of what was going on. Because as I think it's also Justice Jackson said, we've had these practices for so long and no one ever thought in Congress to ever question it. No one's ever brought a lawsuit questioning it. And now we're supposed to suddenly find this newfangled obligation that you have to have voted on a certain day and submitted it by that day, which no one had realized, but we're about to announce it to all of you.
- [57:00]
Mary McCord
So with that, and we could have spent the whole episode on this, really an interesting argument. So if people have the chance, they should have a listen.
- [57:07]
Andrew Woisman
FYI, you can go to the Supreme Court website and there you can can get a transcript for free. And you can also listen to the oral argument for free.
- [57:17]
Mary McCord
Yep.
- [57:18]
Andrew Woisman
With that, thank you for listening and following us. It's really been a great privilege. And Mary and I want to thank the incredible team at msnow that makes this possible and puts up with us day in and day out and makes us sound as good as we do. And remember to subscribe to MSNow Premium on Apple Podcasts and you can get this show and other Ms. Now originals ad free. You'll also get subscriber only bonus content and as we mentioned at the outset, we are now available on YouTube. You can head to Ms. Now Main
- [57:54]
Mary McCord
justice to listen this podcast is produced by Vicki Vergolina and Donnie Holloway. Colette Holcomb is our intern with additional production and support from Rana Shabazzi. Greg Devins II and Hazik Bin Ahmed 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.
- [58:17]
Andrew Woisman
Search for Main justice wherever you get your podcasts and follow the series.
- [58:41]
Zepbound Advertiser
Snoring, Gasping during sleep? Feeling fatigued? Wake up to Zepbound Tirzepatide, the first and only FDA approved prescription medicine for moderate to severe obstructive sleep apnea in adults with obesity. Zeb Bound is an injectable prescription medicine that may help adults with moderate to severe obstructive sleep apnea and obesity to improve their osa. Zebound should be used with a reduced calorie diet and increased physical activity. Zebound is Approved as a 2.5, 5, 7.5, 10, 12.5 or 15mg injection. Zetbound contains Tirzepatide and should not be used with other Tirzepatide containing products or any GLP1 receptor agonist medicines. It is not known known if Zepbound is safe and effective for use in children. Do not share needles or pins or reuse needles. Don't take Zepbound if allergic to it or if you or someone in your family had medullary thyroid cancer or multiple endocrine neoplasia Syndrome Type 2. Tell your doctor if you get a lump or swelling in your neck. Stop Zepbound and call your doctor if you have severe stomach pain or a serious allergic reaction. Severe side effects may include inflamed pancreas or gallbladder problems. Tell your doctor if you experience vision changes, depression or suicidal thoughts before scheduled procedures with anesthesia. If you're nursing pregnant, plan to be or taking birth control pills. Taking Zepbound with a sulfonylurea or insulin may cause low blood sugar. Side effects include nausea, diarrhea and vomiting, which can cause dehydration and worsen kidney problems. Talk to your doctor, call 1-800-545-5979 or visit zepbound.lilly.com Zepbound and its delivery device base and QuickPen are registered trademarks owned or licensed by Eli Lilly and Company. Its subsidiaries or affiliates.