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Main Justice
“No Pretense of Evenhanded Justice”
00:51:33
Trump changes his tune on the Epstein files. Plus: Judge blasts DOJ for potential misconduct in Comey case.
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A
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B
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A
Hello and welcome back to Main Justice. It is Tuesday morning, November 18th. I'm Andrew Weissman and I'm here with Mary McCord. So Mary, you are the New York Times quote of the day today. Do you want to tell us what your quote is? And that actually is going to be a perfect segue to what we're going to talk about.
- [01:24]
B
I believe the quote that is the quote of the day is half of the quote that they actually publish. But it's probably the one that most explains what the topic is today, which is there is no pretense of even handed justice. That core principle is gone. And this is what I told Glenn Thrush when he asked me on Friday, in fact, and it was right after you and I appeared together on Deadline. And the quote is very similar to something I said on tv. But Glenn, this was on Friday right after the attorney general, Pam Bondi had, you know, within, I think Glenn reported 218 minutes of the president calling for her to launch criminal investigations against Democrats who appeared in the Epstein files. She said, you know, aye, aye, Captain, thank you. Happy to do it. We're putting Southern District of New York U.S. attorney Jay Clayton on the job and he will get going. And so you know what I had told Glenn and the other part of the quote was, you know, whether you're investigated or prosecuted or whether you are pardoned or your sentence is commuted muted depends on whether you are a friend or an enemy of Donald Trump.
- [02:31]
A
So we're going to talk about that and talk about sort of Epstein in a way that I think is different than the news is covering it. Not to denigrate the news. They're covering important things, but we have sort of different takes on it. But, you know, what's so great about your quote is it doesn't normalize the situation here, and it makes it clear we're talking about the White House directing the Department of Justice. That's one, which is that it's just a political arm of the White House. And two, not only is it a political arm, but it's going to be used to only go after Democrats, which, you know, I think by what I said when we were on deadline with Nicole Wallace was, if I am representing Letitia James or James Comey, and there are pending motions now for vindictive and selective prosecution, this is Exhibit A. Exhibit A. Except that I would say there's only, like, about 400 other exhibits.
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B
That's true.
- [03:24]
A
But this is one you can literally take ripped from the headlines and be like, you think we do not have direct evidence of vindictiveness? What do you think it is when the president says only investigate Democrats? When. Let's just take one example. Let's even leave Donald Trump aside, which is like a huge if. But how about Steve Bannon? You know, all the records show that they were friends, if not good friends, and he's now Democrat. He's, you know, allied with the president. So, again, I'm not saying he did anything wrong.
- [03:56]
B
My point is, if you're going to launch investigations. Yeah, I know we've already kind of talked about that, but we'll come back and talk.
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A
That's our way. That's.
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B
That's our way.
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A
That's our way, Bears.
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B
It is. But we will go on to talk about other things, frankly, that are just so troublesome coming out of the Department of Justice, including the findings by a magistrate judge in, in the Comey case that you were just referencing ordering, and it's fairly extraordinary and rarely happens, ordering that the grand jury transcripts be provided to the defense, the grand jury transcripts of the arguably unlawfully appointed interim U.S. attorney Lindsey Halligan going before the grand jury and presenting that case that resulted in an indictment against James Comey.
- [04:37]
A
And by the way, Mary, I'm so happy we're doing that on a podcast, because this is one where there's so much going on there, and it's good to be able to tease that apart. And I mean, not to pat ourselves on the back, but we have exactly the right background to make sure people understand what is the judge really doing here and what to expect going forward.
- [04:56]
B
That's right. And Then we will turn to more of this, you know, war on the judiciary. We will talk about, first and foremost, Judge James Boasberg now being basically given the green light by the D.C. circuit to resume his contempt proceedings, all related to that weekend in March when the government had flights of alleged members of Trend Aragua that they flew to an El Salvadoran terrorist prison and arguably in violation of his order, and that his proceedings have been on pause for all. All these many months, and they are finally greenlighted to resume. Now, you might say, Mary, didn't you say this was about war on the judiciary? Well, because of. Of what Judge Boasberg has done in this case, we've got some articles of impeachment that have been filed against him by a representative. We have several senators this morning that are asking the chief judge of the D.C. circuit to suspend Judge Boasberg during the pendency of these impeachment proceedings. And we have recent information that the Deputy Attorney General has asked for specific references. Ask a USAS in the US Attorney's offices around the country to give him examples of what he thinks is judicial overreach, judicial activism for reasons unknown.
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A
Yeah. So not to kill the metaphor, but for. He wants ammunition for the war.
- [06:15]
B
Yes, that's right. Perfect.
- [06:17]
A
Okay.
- [06:17]
B
So shall we jump in to what we've already dived into?
- [06:20]
A
Yes. So should we start with Epstein?
- [06:23]
B
Yes.
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A
We are moments away from a vote that will be taken.
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B
And vote in the House would still have to go to the Senate and be signed by the President.
- [06:33]
A
It has to go from the House to the Senate. The President says he would sign it, and it's unclear exactly how much would be produced and what would be redacted. There are limits that you would expect, such as names of victims. There might be names of innocent third parties that might be redacted. There may be grand jury material. If there were classified information. Let's speak if that obviously could also be absent it being declassified, that also could be redacted. So we don't really know that piece of it yet. We'll see. One thing that's just fascinating to me is we're going through all of these shenanigans where the President has reversed course. And, you know, a lot of people are saying, you know, in advance of this defeat in the House, he's saying, oh, we'll go ahead and release it after the reporting is he's desperately tried to get people to change their minds. The thing that's sort of bizarre about this is the President could just do it right now.
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B
That's right.
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A
This is the part that I'm like going, what are we doing? It's like the President saying go ahead and vote. It's like go ahead and release.
- [07:40]
B
Yeah, he's the head of the Department of Justice. This is what the Supreme Court said. You can tell your Department of Justice to do whatever you want. So he could say right now, release them. But I think this is a little more strategic than that. I was looking at his truth social post where he said where he changed his course, Right. Remember he was fighting so much against the release of these files and then suddenly after he didn't have the votes, he changes course and he does this through a truth social post and he talks about, you know, we have nothing to hide, it's time to move on from this Democrat hoax, blah, blah, blah. But here's then what he says. The Department of Justice has turned over tens of thousands of pages to the public on quote Epstein and are looking at various Democrat operative lives, Bill Clinton, Reid Hoffman, Larry Summers, etc and the relationship to Epstein. And here we go. And the House Oversight Committee can have whatever they are legally entitled to. So he's making a big deal. We have nothing to hide, you know, pass your measure. He's want people to think will turn everything over, but to me, that they are legally entitled to comes back to something you and I have discussed on air ever since he called for the investigation of Democrats which is will give the Department of Justice the ability to say we cannot release materials because of this ongoing investigation we have into Bill Clinton, Reid hoffman, Larry Summers, etc. In the words of the President. And so even though he reversed course after he, you know, called on Pam Bondi to launch investigations and she said yes, I will do it, those five words they are legally entitled to makes me think this is not really let's be open and give everything over.
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A
Of course not. Because if he was going to, he could just do it. That's right. So obviously he has some trick up his sleeve. The thing that I find interesting is one, of course, Pam Bondi has famously issued a memo that said nothing to see here, cases closed four months ago. So now suddenly wait, something to see here, case is open but nothing's changed. So remember, they have had all these documents. So and if not exactly these documents, certainly many of them. And so there's no explanation for reversing course whatsoever. The other thing that I find fascinating is you and I have done investigations. I am struck by a couple of things. One, the fact that it has been reported and Todd Blanche has said that the law enforcement did not have the emails that were just released. The ones from a Jeffrey Epstein sort of vacation email is shocking to me that one of the first things you do in an investigation is you figure out what are all the accounts that somebody could use. What are their email accounts. You talk to people, you go from one. Sometimes in one email account they're sending things or they're referring to other emails, but also here, the things that were released, there's so many people who are aware of and using this that you just sit there and go, like, did you not talk to these people? And so there is a huge question about the lack of diligence of the investigation. And that, by the way, goes across different parties and different administrations. I mean, but I was sort of shocked, shocked by that, if true, that law enforcement does not have this, that it is like, what, hell, I mean, just to be clear, my concern is that they didn't have this and they may not have a whole bunch of other things. And so do they have all of the emails where there could be discussions and texts and like screenshots and the whole bunch of things. Two, opening up an investigation where you say, oh, we're going to do an investigation, but only of the Democrats, doesn't work that way. Yes, it is true that you might say, oh, we're going to then pull the emails for person X and person X is a Democrat. But if you are going to get, let's say, the emails from Ghislaine Maxwell for some new account or the emails from Jeffrey Epstein from some account, and you're going to go get that from Google or some other provider, they're not going to provide you just the emails that relate to Democrats. It's going to look a lot like anyone's emails account. So this is one where I'm like, they could be shooting themselves in the foot because I'm sorry, if they pull all of this stuff and Jeffrey Epstein is busy talking to people about Donald Trump, it's like you're going to get that in connection with everything else you're looking at. So to me, this is like too cute by half because that's just not how investigations work. You're going to get a whole host of things and there'll be a continued drumbeat, rightfully, that you're hiding something.
- [12:13]
B
Well, you know, it's what Department of Justice attorneys always say, right? We don't investigate people, we investigate crimes. We investigate the facts and we take those where we lead to the people. But you don't start out with the person. Now, having said that, you know, and having listened to everything you just said, with which I agree completely about how investigations go, even if. Yes. Yeah. Really? Duh. That's surprise, surprise.
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A
I agree with you. I haven't lost it. Years later.
- [12:40]
B
Yeah. That does not mean that this Department of Justice would decide, oh, we have justified, you know, we have facts that justify or warrant a prosecution against people who are friends of Donald Trump. And so we will prosecute. I mean, everything I have seen. And this is not just about the decisions about who to investigate and what investigations to drop. Remember dropping the investigation into Tom Homan's acceptance, alleged acceptance of a bag of cash in order to $50,000 bag where.
- [13:13]
A
If nothing happened, he would be the first person to say release the videotape.
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B
Exactly. So, you know, we've already seen dropping investigations that seem to any reasonable prosecutor to be justified. Engaging in investigations of prosecutions against people where the facts do not seem to support it. We've seen the pardons that you talked about so specifically in our last episode.
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A
Right.
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B
Pardoning your friends, commuting the sentences of your friends, not doing so for your enemies. I mean, everything about this department just shows it's not engaged in even handed administration of justice. And whatever they find, you're right, they may find a lot of stuff, but that doesn't mean they will do something with it. And. And I do want to go back and foot stomp what you also said it was four months ago. Pam Bondi said there is no client list. We've reviewed the files extensively. There's no client list. And we did not find anything that justifies an investigation into third parties. That is what she said. And yet on Friday, again. Yes, sir. Thank you, sir. We are launching that investigation and Jay Clayton will handle it. So I don't know how honestly she can look in the mirror every day and not realize, you know, just absolutely how hypocritical she is, how her about faces just should be embarrassing to her.
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A
This is maybe a really good thing to turn to. What's going on with James Comey? So James Comey and Letitia James have both made motions with respect to selective and vindictive prosecution. There also was a lot of litigation in the Comey case about other issues. Both Comey and Letitia James have argued that Lindsey Halligan is improperly appointed and if that's true, that the cases should be dismissed. But in James Comey's case, there also is litigation about a concern that the government has steeped itself in or exposed itself to attorney client privileged information and particularly with respect to communications between James Comey and Dan Richmond. Dan Richmond is a lawyer as a professor at Columbia Law School. And at time he worked at the FBI as an advisor to James Comey. But he also, after that, was also his counsel and operated in that role. Other people did as well. We still don't know all of the information, but there's a concern about exposure to attorney client information.
- [15:38]
B
Just to be clear, when there was, the FBI was involved in an investigation of leaks to the New York Times and obtained the records of communications of Professor Richmond, Dan Richmond. And those communications are where. What you were just indicating. I just want people to know where. Where did this body of evidence come from?
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A
We've been doing this a long time. Because you know what? That's where I was going.
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B
Yeah, okay.
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A
Yes, okay. No, no, totally. Right. And because of that, it like building on that, that time period, the government got search warrants that allowed them to look at the emails of Dan Richmond in connection with sort of a separate investigation, not into James Comey lying. And those search warrants, when you get it, it's. The court says you can get certain material for a certain time period, and you can get it to look for certain things. So one easy way to think about this is you can't look for an elephant in a desk drawer. So if the search warrant says you can look for an elephant, you can go into the house, and in any room that an elephant could fit, even a baby elephant, you can look, but you can't start looking through desk drawers. You got to stay within the terms of the warrant. The warrant says you can look for A, B and C. You can't look for D and F. Yeah, so that's a. That is maybe a good backdrop for the decision that came from the magistrate judge who's assigned to this case, not the district judge. This is the magistrate who's handling a lot of the discovery and initial issues. And the magistrate issued a very lengthy, detailed opinion on this issue. And why don't we take a break and we'll come back and break down the different pieces.
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B
Sounds good.
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A
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B
Welcome back. Well, Andrew, set up exactly what you can and cannot do pursuant to a search warrant. But there's another thing that overlays on top of that, which is that when there might be attorney client privilege within the communications that you have lawfully seized pursuant to a search warrant, before you can even look at the things that you are allowed to look at, you have to have a procedure to make sure that the government is not going to be looking at privileged communications. So whenever the government searches, and you and I, Andrew, I'm sure, have encountered this in our own investigations, whenever you have a warrant for any attorney's materials, you always know you're going to have to have a procedure that we call a filter protocol or a filter procedure, where you have a filter team of lawyers and you have to get the court's permission for this and you have to consult with the other side that you will filter out. This team that is not involved in the investigation will filter out anything that appears that it could be attorney client privilege. And then the attorneys who are actually involved in the investigation will just see the things that are not attorney client privilege. You also will work with the attorney and the attorney's attorney, right. Whose material you search to identify those kind of materials as well. And that is because that is privileged communications and you cannot use that absent a waiver by the client of the attorney. So in this case, it would be James Comey as the client of attorney Dan Richmond. He would have to waive that privilege in order for the investigators to use any attorney client privilege material. And that sort of sets up one of the problems here.
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A
It's so common. When I was the head of the fraud section, there was actually a standing filter team to do this. When I was on the Mueller team, we had a person outside of our investigation who ran the filter team to do this. And I should say one wrinkle on this is that it certainly comes into play when you're doing a search of an attorney, but even if you're doing a search of a non attorney, but you expect that there may be attorney client information, you would use it. Now what happened here is that the government, according to the magistrate, we heard that they did a number of things that appear to be in the court found to be likely, or I should say probable cause at least of missteps. One is they never asked James Comey and his counsel to review the material. They only were talking to Dan Richmond. But the privilege belongs to James Comey, and so he had a right to be heard on this. Now to what extent there's a prejudice, to what extent there's privilege, we don't know all of that yet. But it bespeaks and I think sloppiness that was not done here. And they just assumed, if they even thought about it, that this would take care of the problem. And it just seems unlikely and sort of a needless footfall that you didn't have experienced people to say, if you're going to be getting Dan Richmond's view, you should get James Comey's view. And the second thing that they didn't do, which I think is a really serious fourth Amendment issue, is while they had a search warrant to look at Dan Richmond's material for certain things, the court found that like many, many, many months and months later, shortly before this indictment in September, the FBI just goes, this is going to be my hyperbole traipsing through the material, higgledy piggledy, not staying within the bounds of what the court said. And Mary, guess what, you hit it nail on the head, which is if you want to do that, you have to go back to the court and get a warrant to expand the scope of what you can search for. The fourth Amendment requires a warrant to look at this. And once you get one, it's not like, oh, now I can look at anything at any time and anywhere. And to me it was just like, what were they possibly thinking? They did not have the lawful authority. Now we don't know what the prejudice is. We don't know what they found we don't know exactly what the ramifications would be on this, but it could be really serious, including suppression. Meaning that the court says you cannot use these documents at trial. Obviously, if these documents are important or critical to the case. And it doesn't appear that there are very many documents in this case at all. I would say in this case, it looks like you really can't afford to lose any. So that seemed like a second big problem. And what it said to me is, where were the experienced people here?
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B
Yeah, I'm dumbfounded about. I mean, the FBI as well as the attorneys know that you can't just have, you know, whatever got searched years ago, you can't just have that as something you can look at anytime you want. Right. Because as you said, Fourth Amendment, it's probable cause that evidence of a crime will be found in the materials to be searched. If the old probable cause was based on a leak investigation to the New York Times about the potential leak of classified information, that's entirely different than what this investigation about whether James Kobe lied to Congress was about. Right. And you need new probable cause that evidence of that crime that you're investigating will be found in those materials. And you need a judge to sign off on that. And they didn't have any of that. And there's another issue about this grand jury material that the judge flagged, which is that the FBI agent who looked at everything without any sort of filtering out, he is the one who then went in the grand jury. There was only one FBI agent who testified in the grand jury, according to the magistrate judge, and it was the FBI agent who has exposed the entire tranche of materials because you explained the filter process, which didn't involve consulting with James Comey. So he was exposed to things that he should not have been exposed to. And even if. And the magistrate judge points this out, he says, when I read the grand jury transcript, and I'm paraphrasing, I didn't see anything that jumped out at me as obviously attorney client privilege material. But nevertheless, the knowledge of that material can impact how the case is presented to the grand jury. And there's more things we need to look into. And you made the good point that sometimes when there is an issue with material being protected by a privilege or beyond the scope of the search warrant, it might get suppressed as use of evidence at trial. But this judge is going a step further and saying in combination of that and other, what he says, evidence of misconduct by the prosecutor, and the reason he is providing the grand jury transcript to the defense is that it could provide a basis for the defense to argue that the entire case should be dismissed, not just with the evidence at this point. That's right. That's actually why he's providing it, because it's a tough standard to meet. There has to be a particularized need identified by the defense attorneys as to why they need grand jury material. And he's found it here based on this evidence of misconduct. And that gets us to the next kind of category, the statements of Lindsey Halligan.
- [26:18]
A
In case it's not enough to have attorney client issues. That's one bucket. In case it's not enough that you have Fourth Amendment issues. By the way, the law on that, crystal clear. But now there's an issue of Lindsey Halligan, who has never been a criminal prosecutor. And this again goes to. What in God's green earth were they thinking? Lindsay Halligan goes into the grand jury. Wait for it alone. Does she bring anyone from the Eastern District of Virginia, U.S. attorney's office? No, because apparently no career person in the Eastern District of Virginia wanted to touch this. That tells you a lot. But now Eastern District Virginia is a New York minute away from Main Justice. Main justice has this huge body of attorneys. Not a single one was with Lindsey Halligan in the grand jury. So guess what? Surprise, surprise. The judge finds two things. It's redacted, so we don't know the full extent of what she said and how serious it is.
- [27:16]
B
In fact, the first quote is entirely redacted. It looks like it's about two lines long and one word. But he describes it.
- [27:26]
A
Let me give you the color of what it is he suggests. One issue that he flags is essentially words that the judge says could have made it seem that James Comey has some burden here, that he has to explain himself, that he doesn't have a Fifth Amendment right. Everyone should know. The Fifth Amendment provides that if a truthful answer would tend to incriminate you, you can stay silent and there's a separate trial. Right, which is that the defendant at trial, if anyone's been on a jury in a criminal case, knows this. The judge will say the defendant doesn't have to do anything, doesn't have to do, as we like to say, the law, diddly squat.
- [28:04]
B
Doesn't have to testify, doesn't have to put on evidence, because it is the government's burden from start to finish.
- [28:10]
A
Doesn't have to cross, doesn't have to do a jury address.
- [28:14]
B
And you cannot hold it against the defendant that he is not testifying.
- [28:19]
A
So he Suggests that she may have said something that whittled down that he.
- [28:25]
B
Says, for now, I'm redacting the grand jury. The actual statement. Right. Because it's grand jury material. But he says the prosecutor's statement that redacted is a fundamental and highly prejudicial misstatement of the law that suggests to the grand jury that Mr. Comey does not have a Fifth Amendment right not to testify at trial. The prosecutor's statement that redacted may have reasonably set an expectation in the minds of the grand jurors that rather than the government bear the burden to prove Mr. Comey's guilt beyond a reasonable doubt at trial, the Burden shifts to Mr. Comey to explain away the government's evidence. I mean, he's just stating what the law is. And any prosecutor, you know, she didn't go through any training to be a prosecutor. I don't know about you, but when I first started in the U.S. attorney's office, we had about a two or three week training where you learn, even though we were all lawyers and actually I had several years of experience and I'd been a law clerk even before my other experience. Like, it's still good to, like, get your head in the central core. Things about criminal prosecution and this burden. It's like 101.
- [29:30]
A
It's also, Mary, you know what? The first time I went into the grand jury, I was not alone.
- [29:35]
B
Yes, that's that, too. That too.
- [29:37]
A
I mean, what office would possibly do that? Second thing that he flags is he flags a statement that again, it's redacted. But it seems to be that Lindsey Halligan said some version of, we have other evidence. This isn't everything. Now, to be clear, sometimes a prosecutor will say to an agent, a witness on the stand, have you presented just some of the evidence that you have here to help, in your view, establish probable cause? But to be clear, you have to instruct the grand jurors that they can only rely on the evidence that is there. They're not entitled to say, oh, gee, there may be other evidence that I haven't produced. It's like, if you want to have the grand jury rely on it, you need to present it. So it remains to be seen exactly how she phrased it. But that's one where training would have made it clear what she could say.
- [30:31]
B
And what she could just again, to get to the magistrate judge's words, because I think they're important here. That statement clearly suggested to the grand jury that they did not have to rely only on the record before them to determine probable cause, but could be assured the government had more evidence, perhaps better evidence that would be presented at trial. I mean, like, that's kind of telling us what she said. Yeah, and you can't do that either, like you just said.
- [30:56]
A
One of the things that I wanted to flag was something that James Comey's attorneys, I think, are going to be looking for once they have this, that I'm not sure the magistrate would have been as focused on, which is something that it's a little in the weeds. But there's a very finite period as to which there is direct evidence of James Comey potentially lying. In other words, it has to be a period where Dan Richmond was actually working for the FBI, because that was the phrasing of the question. It can't be for emails and things that happened before or after. And when you look at the government's brief, it's like a kitchen sink of stuff that is before, during, and after the relevant time period. And so if I were James Comey's counsel, I would be looking for the transcript to see did Lindsey Haligan make it very, very clear what they could consider as direct evidence or not? Because that could be another huge issue. It's not totally clear to me how much that was flagged for the magistrate, but they now, James Comey will have the grand jury transcript and will be able to look at it. Mary, you wanted to say there was.
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B
One other thing, and this has to do with whether there's something missing from the transcript that he reviewed.
- [32:15]
A
This is what I call the Rosemary woods problem. Rosemary woods famously was responsible, she says, for a gap of about 18 minutes in the Nixon tapes. And she apparently has some very convoluted story about sort of like her foot hit the pedal and she was typing. And a lot of people at the time were like, you know, she would have to be like a contortionist for that to work. And so there was a lot of speculation and doubt as to whether it's true. But here the judge is basically saying, I can't make heads or tails of the timing here as to what happened, because there were two separate indictments that were issued, and I can't figure out, nobody's telling me a complete, full story as to what happened.
- [33:01]
B
Yes, because what the grand jury shows is that at 4:28 in the afternoon, she left the grand jury to deliberate over the, you know, indictment, the three charges people may remember.
- [33:14]
A
So Lindsey Halligan leaves. She leaves the grand jury at 4, did you say? 428? A prosecutor leaves the room and that's standard practice, which is that you leave the grand jurors and only the grand jurors in the room. There's no court reporter, there's no prosecutor. The grand jurors alone deliberate. And that is not on the record in the sense that it's only them.
- [33:35]
B
That's right. Just like a regular jury. Right. They get left completely alone to deliberate. Right. And so she had filed a declaration with the court saying that after 428 she, she had no further contact with the grand jury. So 6:40pm so we're 2 hours and 10, 12 minutes later, she says she claimed in a declaration to the court attempting to address this weird, this issue that we're now explaining about the transcripts. She says she was notified by then first assistance U.S. attorney that the grand jury returned a true bill on only two of the three counts. But here's where it gets weird. Lindsey Halligan tells the court, according to her declaration, that she then went to the courtroom for the return of the indictment. The hearing on the return of the indictment began at approximately 6:47pm so the judge says, when did the grand jury then get this second indictment that had only two counts? Because if you left them with a three count indictment at 4:28, you were told they only were willing to return a bill on two. And there's a second indictment that's presented to the court. When did that happen?
- [34:44]
A
Mary? It's the Immaculate Conception indictment. This just appeared. I don't understand.
- [34:53]
B
Okay, that's great, that's good.
- [34:55]
A
Mary, I don't understand why you think that's a problem. So just to make sure everyone understands, the way a grand jury considers an indictment is the government gives a written proposed indictment and presents it and reads it and the grand jurors look at it to decide whether it should be charged. And here the initial indictment was had three counts and that ultimately gets signed. But then they also vote a second indictment which is just the two counts because they rejected one count. And so the issue is where did the second one come from? Because she's the only person in the grand jury and somehow that appears there. And by the way, Lindsey Halligan has signed both of those indictments. We know from the presentation to the magistrate judge. So the judge is like, what a God's green earth. Sorry to keep using that is going on. And I know I'm mixing a lot of immaculate conception and God's green earth and all that, which is a little interesting because I'm Jewish, but Mary, I think at this point what people should expect is the government could try to appeal this to the district judge to say that there are errors, et cetera. The transcript shouldn't go over to James Comey. And absent that, I think we're going to see a lot of litigation here.
- [36:14]
B
Yes. And even with that, I mean, we're going to see a lot of litigation. But I think you're absolutely right. I'm pretty sure the government's going to do that.
- [36:21]
A
Yeah. I mean, I think for people listening to this, you can hear in Mary and my voice this sort of like, what on God's green earth, you know, is sort of our reaction to all of this. And James Comey has extremely experienced criminal counsel, you know, as experienced, if not more experienced than we are in many ways. And they're going to be looking with a fine tooth comb. And by the way, if you're hearing this background noise, it is because it is leaf season in Washington D.C. it is.
- [36:49]
B
It's leaf blowers. They just got here. I'm really sorry.
- [36:52]
A
Right. We can still hear you.
- [36:54]
B
Usually my husband goes out and runs interference, but you know, at some point you got to let them do their thing. So. Or else I'm going to be out there raking those leaves and I can't do that because I have to podcast. So I have to record.
- [37:04]
A
Exactly. Much more important. Okay, Mary, should we take a break and come back and talk about our.
- [37:09]
B
Yes.
- [37:10]
A
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- [39:19]
B
So this was the case where on the weekend of March 14th and 15th, again, one of these, you know, overnight, middle of a weekend events which this administration seems to be famous for, at least when it involves putting people on planes to expel them from the country. That was the one involving the president's use of the Alien Enemies act to expel alleged members of the Venezuelan gang Trende Aragua to an El Salvadoran prison. Judge Boasberg sort of throughout the weekend had emergency hearings, ordered the government to not put anyone on those planes and send them to El Salvador because they were entitled to have due process. He said if there are any planes in the air, those planes need to be turned around and brought back to the United States. If there are any planes that have landed, the people need to not be taken off of the planes. They need to turn around and come back. Turns out that there were planes in the air. Those planes did not turn around and come back. They offloaded the detainees, those that were alleged to be members of Trend Aragua. And we had well over 100 people, including Mr. Abrego Garcia, who's not even Venezuelan, much less a member of Trend Aragua, offloaded into Seacote, a pretty notorious detention center for alleged terrorists in El Salvador. And that's where they stayed for quite some time until an arrangement was made by which detainees were sent to Venezuela. So Judge Boasberg, on an emergency basis, the government took this up to the Supreme Court to stay his orders. And this is the decision where the Supreme Court said These needed to be done through the mechanism of a habeas corpus action. This case couldn't be brought in DC on behalf of all these alleged detainees. But the Supreme Court also said that these detainees and all those who before they are going to be deported under the auspices of the Alien Enemies act have an absolute due process right under the US Constitution to no notice that they are going to be removed. And the opportunity to challenge that removal before they are removed. I mean, this is the one thing all nine justices agreed upon. So it was just a procedural ruling.
- [41:28]
A
I was just thinking about this issue of before. It's like due process before relating it to Comey search warrant before you search. I mean, these are these procedural protections and you have them just blowing through it going, who's going to tell me to stop? So the judge is concerned then that his order, though, was violated because he was like, do not take these people out. And he doesn't say that his order has been violated. But the court says, look, I am concerned about this. I think there is probable cause, but I now want to have more information before I make a conclusion, because I gave a clear order and I see the planes going out. And he has a detailed timeline of what happened. And he says, I'm going to give the parties a chance to be heard. But I want to know who made what decision, who was doing this? Did it come from the White House? Where is it coming from? That's sort of what happened at the district court level. But the government appeals that and that sort of gets stayed for a while and there's sort of been this long delay. I'll tee it up for you, Mary. What was going on there and what was ultimately happening? Like, why are we suddenly hearing about this case now?
- [42:42]
B
Yes. So what happens is the government takes the appeal from this order to give me the names of who made this decision. But there's another thing that Judge Boasberg had said. He said, or you could cure the contempt by essentially purge yourself of contempt by providing habeas hearings to the class members who had been unlawfully deported. So this goes up on appeal. The three judge panel says this is not an appealable order. But they also did something called the writ of mandamus, which is when you can show the appellate court that the district court made clear and indisputable error and the government argued he couldn't do this. His orders about the Plains were ambiguous and the government didn't violate it, and we shouldn't have to go forward with these contempt proceedings. Two of the three Judges agreed to issue a mandamus against him. One was Judge Katzis on the grounds that he thought, well, maybe it was not crystal clear to the government what the judge was ordering about turning these planes around. And so that justifies Mandamus in stopping.
- [43:47]
A
These proceedings, meaning his view is there should never be a hearing on this because the order was just too ambiguous to ever find somebody who's in contempt. Turn the planes around was not clear enough. That's one judge, by the way, as you could tell by the way I phrase that, it's like, in some ways, I mean, I actually think it was a pretty detailed opinion, but I mean, it does kind of give lawyers a bad name because, I mean, come on. Not only did Judge Boasberg say it, but we know that Eric Rouveni, who was on the case, knew exactly what was meant, because at the time is like, just to be clear, this is what we have to do. So there was no confusion in his mind.
- [44:29]
B
The second judge of the two who voted for Mandamus was not ruling that the contempt proceedings couldn't go on, but she did not think that Judge Boasberg's option, that for the government to purge the contempt was a viable option. Because this is a case where the Supreme Court had said that the case had to go forward by way of habeas and not in front of a sort of class action for a universal injunction. That is what Judge Boasberg had originally ruled on. I know this is hyper technical, but the point there is that meant that the judge who did not vote for Mandamus and Judge Rao, whose only issue was this purging contempt that she didn't think was viable, but she hadn't said otherwise, that the whole contempt proceedings had to stop. That means two of the three judges actually were saying it can move forward. So this gets paused for a long time, first of all, because it took a long time for that opinion to even come out. Secondly, because the plaintiffs, those who had been deported, they actually sought en banc review of that mandate decision. That means they want the full court of the D.C. circuit to review whether Mandamus should have been granted. This is the opinion that came down this week. And this was very split, but a majority of the judges essentially said these proceedings can move on. They denied Mandamus because in the words of three judges who put out a statement about it, there was nothing riding on it anymore. In other words, as we just had described, two of the three judges of the panel had said the contempt proceedings could go forward. There was no reason for the court now to grant en banc review of the mandamus, because it just wasn't going to make any difference to whether the contempt proceedings could go forward. And they pointed out it could really delay things. And they pointed out also how important it is to the whole system of the judicial branch being the branch that says what the law is, that when there is a potential contempt of a court order, it's important for that to move forward. Other judges dissented from that, saying we should have granted mandamus because mandamus is for clear and indisputable error by a trial court judge. And we don't even have the two judges who originally voted for Mandamus agreeing what that error was. They have two completely different theories for the error. So how could that be clear and indisputable? And in their view. And Judge Pan was one of the dissenters who wrote a opinion, she was very eloquent in talking about why this is so important and let me just read a piece of this and then I will stop talking and hand it to you. She says we should not leave in place a ruling that says that the district court aired when it did not. We live in a world in which judges face threats and harassment because of their rulings and have been called rogue by government officials who disagree with them. And we cannot overlook that in response to this very case, the President of the United States called for the district judge's impeachment. So the upshot of all of this is that there are a handful of judges who think we should have taken the same bank just to sort of correct this record and vacate that mandamus against a district court judge who did nothing wrong and stand up for these principles. But overall, that's not going to happen. But the case still moves forward. And tomorrow at a hearing, Judge Boasberg says, I want to hear from the government about how we move forward at this point.
- [47:58]
A
So I took this as sort of big picture, although you could have different views about whether they should have taken this and reversed that three judge decision or not. But this is going forward and the majority of the D.C. circuit said it should go forward. Judge Boasberg has been handed a green light to go forward to find out the answer to the question, who did this? Who was the person who decided that the planes should take off and should not turn around? I wanted to read from the three judges who wrote about this as to why they weren't going to reverse. And they were very careful to make it clear what was at stake and they wanted to align themselves with the judges in the dissent to say, look, we are in agreement on the principles here. It's just a question of how to get there. And the court says we fully appreciate the seriousness of the governmental conduct the district court observed and we do not endorse the panel. That's the three judges premature intervention in the district court's decision making process. Nor should this vote be understood as judicial acquiescence to any disregard for court orders. It most assuredly should not be read to diminish the judiciary's proper use of its contempt power or to excuse non compliance by government officials to the contrary. Respect for judicial orders and court's independence are essential to the rule of law. The district court has every ability to set a new deadline for production of the information it sought regarding the probable contempt it identifies or to proceed otherwise with his sound discretion. For its part, the government will have the full opportunity at the appropriate time to raise any defenses it may have. If it is dissatisfied with any appealable order the district court may enter, it will have the opportunity to seek review through the ordinary process. That is how our system of justice is designed to work, unquote. So this is one where the big picture, I know we walked you through a lot of the details of this is the government now can either try to go to the Supreme Court, seems very hard to do, or Judge Boasberg can hear from the parties and could insist on getting the names of who made these decisions, whether it's Emile Beauvais, whether it's Stephen Miller, whether it's other people. And it'll be interesting to see what happens. And it's nice to see though essentially the district court and the DC Circuit are basically saying the rule of law requires the government to adhere to judicial orders. If you do not like them, you can appeal. And this is directly goes to the thing that we talked about when we talked about Todd Blanche's war on the judiciary. And here you have just to be clear, you didn't have any judge in the D.C. circuit actually saying in this en banc decision they disagreed. I mean, some of them didn't write, but this was really saying the rule of law requires this. I think it's a testament to Jeb Boasberg and how good a judge he is and how careful he is. The judges all call it out in both written decisions. And so keep your eye on what's going to happen tomorrow in Judge Boasberg's courtroom and what the government does here.
- [51:36]
B
And keep your eye on this ongoing, quote, unquote war. You know, we then like, like I said at the intro on Friday. Now, it certainly wasn't directly about Judge Boasberg at all, but this is when the deputy Attorney General issued an email to each U.S. attorney's office to provide two or three examples of judges posing challenges to Justice Department efforts to obtain search warrants, signatures on criminal complaints, get approval on jury instructions, obtain pretrial detention, the things that judges are supposed to ask questions about. But he wants these examples of judges doing their job, really pushing back, asking you for the actual evidence, asking you for legal justification. Says the email did not indicate what the Justice Department intends to do with the information, but prosecutors were asked to submit it by midday Friday. We also have now a group of senators asking for Chief Judge Sri Srinivasan in the DC Circuit to suspend Judge Boasberg, who we were just talking about, because of representatives filing articles of impeachment based on him doing his job.
- [52:42]
A
Yeah. So that's not happening. And you know what? Better for Todd Blanche to worry about the issues flagged by the magistrate judge. In other words, why wouldn't you be worried about are your assistants violating the Fourth Amendment? Are they doing the correct procedures with respect to attorney client privilege? Are they being effective and law abiding? One of the things you do as a supervisor at the department is you make sure that's not happening because you have lots and lots of people and some of them are better than others or better trained. Some are newer. And so better to worry about that than an alleged problem with judges doing their job. Well, Mary, I think we've both been triggered.
- [53:19]
B
I'm speaking faster and faster and louder and louder. And it's not just because there's leaf blowers in the backyard, so.
- [53:25]
A
Exactly. So thank you everybody for listening and staying engaged. And before we wrap, I think probably people know this, but MSNBC has a new name. It is Ms. Now. I like to say Ms. Now more than ever.
- [53:41]
B
I don't know if that's the official slogan, but I like it. That can be ours. Ms. Now more than ever. Catchy.
- [53:47]
A
It's going to be the main justice slogan and it's our new name. But same mission. We're the same people doing the same program. But as people know, Emma Snow produces the show, this wonderful team, and it'll remain exactly the same. Thank you so much for listening to the podcast and stay engaged.
- [54:06]
B
And you can still get premium episodes and ad free episodes by subscribing to MSNow Premium on Apple Podcasts. You'll also get subscribers Subscriber only. Bonus Content like our recent conversation with Carol Leonig and Aaron Davis on their new book, How Politics and Fear Vanquished America's Justice Department.
- [54:26]
A
This podcast is produced by Vicki Virgolina. Our associate producers are Iggy Manda and Rana Shahbazi, and our intern is Colette Holcomb. Bob Mallory, Greg Devens ii, and Hazik bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production, and Aisha Turner is the executive producer for Ms. Now Audio.
- [54:55]
B
Search for Main Justice Wherever you get your podcasts and follow the series.
- [55:14]
A
It's time to save the Firestone Black Friday and Cyber Monday sale is on. Get 15% off all tires and $40 off a lifetime wheel alignment when you buy two or more eligible tires. Visit firestonecompleteautocare.com for details and more. Deals.