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Main Justice
Orbán, OLC, and “I Love You, Sir”
00:57:29
Viktor Orbán loses his authoritarian hold on Hungary, OLC calls the Presidential Records Act unconstitutional, and Todd Blanche really loves his boss.
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- [00:00]
Nicole Wallace
Listen to your favorite Ms. Now shows anytime as a podcast. Enjoy new episodes of Morning Joe, Deadline, White House, and the Rachel Maddow Show.
- [00:09]
Mary McCord
Every small d Democratic muscle that we have is flexing.
- [00:14]
Nicole Wallace
Plus the Last Word with Lawrence o', Donnell, the Beat with Ari Melber, the Weeknight and more on the go wherever you get your podcasts for ad free listening to all of your favorite shows. Subscribe to Ms. Now premium on Apple Podcasts.
- [00:34]
Andrew Weissmann
Hello and welcome back to Main Justice. It is Tuesday morning, April 14th. I am Andrew Weissman and I'm here with Mary McCord. Hi, Mary, how are you?
- [00:44]
Mary McCord
Good morning, Andrew. I am alive.
- [00:47]
Andrew Weissmann
Okay. Well, there's two pieces of good news.
- [00:50]
Mary McCord
You're alive and you're alive. There you go.
- [00:53]
Andrew Weissmann
And there was a really great election in Europe.
- [00:57]
Kim Lane Scheppele
There was.
- [00:58]
Andrew Weissmann
And we have a real treat for people. Our first segment, we have, you know, we rarely bring in experts, and we bring in people who in the field are really known. And that's what we have. Somebody who it really could not be better in terms of to talk about this. That's right, yeah. Princeton professor who lived and worked in Hungary, worked on the Constitution and saw it both build up and saw its demise.
- [01:27]
Mary McCord
That's right.
- [01:28]
Andrew Weissmann
And so, Mary, that's a great sort of segue to how are we going to divide up our show today?
- [01:33]
Mary McCord
Yeah. So that's the opening segment, of course, because it's so important. And really what we want to also dive into is what can we draw from that election that could be applicable here in the United States? Not just from the election, but from everything that built up to that election? And where are the parallels between the Orban regime and how he was able to sort of take over things like the prosecutor's office, the judiciary, things that we worry about a lot here. Right. So we'll talk about that.
- [02:01]
Andrew Weissmann
One thing people probably remember, but if they don't, is Steve Bannon called Orban Trump before Trump. And there's lots of reporting that Project 2025 was actually worked on and conceived of and out of a Pungarian think tank. But the one thing I do think it's important to recognize is that it's like looking through a mirror darkly. In other words, there are potential lessons. I think it can be dangerous to just go apples to apples, but we
- [02:34]
Mary McCord
will turn after that discussion to something that has gone very much under the radar, but something that is core Main justice stuff, and that is a new Office of Legal Counsel opinion that says declares that the Presidential Records act is unconstitutional on its base and that the White House and the President do not have to comply with it. And that includes the national archivist and the entire executive branch. And people are like, I don't know what the Presidential Records act is. It would sound like an obscure law. But this is the law that says presidential records are not the President's personal records when they are about things that are part of his official duties and responsibilities. They are the records of the people and they need to be preserved and kept in the archives. Archives doesn't mean they're willy nilly available for everyone to rummage through, but it's that these are not records that the President can just take with him, say for example, to Mar a Lago when he ends his presidency.
- [03:31]
Andrew Weissmann
And this is one where I implore you, this may sound like it's arcane, but it has such huge ramifications because this is allowing an official whitewash and cover up of what the administration is doing. It's saying all of these records are just personal records. They do not have to be be preserved.
- [03:51]
Mary McCord
You can destroy.
- [03:53]
Andrew Weissmann
Exactly. This could not be more important for those people who are listening to this going, will there ever be accountability for potential crimes? Well, if there are no records, it's really hard. Not impossible, but really hard. Okay, exactly. Anyway, as you would say, Barry, that's thing two. What's thing three.
- [04:12]
Mary McCord
Thing three is sort of a bucket of all of the expletive, expletive, expletive things that main justice is doing right now. Let's start with Todd Blanch's presser last week where he professed his love President Trump. And I think that kind of says it all, because we've had firings of immigration judges who ruled in ways in high profile cases that the Trump administration didn't like. We're just learning yesterday and this morning about firings of prosecutors who prosecuted violations of the FACE Act. That's the Freedom of Access to Clinics act, because this administration believes that those prosecutions were religiously motivated. It includes the investigation now apparently by the Civil Rights Division into Cassidy Hutchinson and whether she, she lied to Congress. Let's just say the Civil Rights Division has nothing to do with whether a person lied to Congress when they were under oath and testifying. That is not a civil rights case. And it tells you what this president or maybe Todd Blanche thinks about Harmeet Dhillon, who's the aag, the Assistant Attorney General for Civil Rights. So a bunch of garbage that is happening in the department right now.
- [05:17]
Andrew Weissmann
Wow, Mary.
- [05:19]
Mary McCord
Yeah.
- [05:19]
Andrew Weissmann
Okay. With that, let's turn to the fantastic guest as Mary And I mentioned Kim Shepley. She is a professor at Princeton University, my alma mater. We have talked so much before you got here about why you are the perfect person, both because of your academic credentials, but also you have been on the ground dealing with this. Thank you so much for joining us. I know you are in incredible demand these days.
- [05:47]
Kim Lane Scheppele
Thanks so much for having me on the podcast. My favorite podcast.
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Mary McCord
Oh, that's great.
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Andrew Weissmann
Thank you. Okay, Mary, you want to start us off?
- [05:53]
Mary McCord
Yeah. So Orban, early in his tenure, was able to build a lot of power by, I guess, essentially replacing the constitution. And so can you give us a little, just to orient us briefly into the history that got us to the point over these number of years since he's been in power where he was able to be defeated so soundly. What had he done as he built essentially, and autocracy?
- [06:14]
Kim Lane Scheppele
Yeah, Orban had an advantage when he came to power. So there was an election in 2010. It was an election in which the outgoing party had run the country into bankruptcy and Hungary was under an IMF program. By that time, the party system had kind of collapsed into two and a half parties. The people who had been in power, who ran the country into bankruptcy, a far right neo Nazi party. And Orban. So he won. I mean, actually, many of us were relieved that he won at that point because the far right was the other alternative. But Orban then won so big because the party system had by that time collapsed, that a trick of the Hungarian election system that he inherited was that he got 53% of the vote, but 68% of the seats in the parliament, unicambral parliament, in a system in which anything about the constitution could be changed with a 2/3 vote. So he was handed the mandate to be above the law, basically which he eagerly grabbed. So he amended the constitution 12 times in his first year, changing 60 different provisions. He then brought in a brand new constitution. He brought in thousands of pages of laws, basically changing the entire constitutional framework all completely legally. That was the point. And it was so legal and it was so technical, shall we say, that many Hungarians had no idea that they were walking into an autocracy until it was too late. And many observers of Hungary didn't realize that Hungary was an autocracy until 10 years later.
- [07:41]
Andrew Weissmann
Kim, could you give us an example of that? Because people who are listening may be going, well, wait a second, if it was legal, what's the problem? Can you give us an example of what he was doing so people could sort of grasp what you're Saying, yeah.
- [07:53]
Kim Lane Scheppele
So Hungary was and remains a unicameral parliamentary system in which executive and legislative power are fused. So the main check on that power was the Constitutional Court. That's, by the way, where I worked for most of the 1990s. So I have a particular fondness the way you talk about doj. I talk about the Hungarian Constitutional Court. Right.
- [08:12]
Andrew Weissmann
Love it.
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Kim Lane Scheppele
So you notice when it falls apart. And one of the first things Orban did was to change the rules for electing judges to the court, and he also expanded the number of judges on that court.
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Andrew Weissmann
So it's like packing the court.
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Kim Lane Scheppele
So it packed the court. Absolutely. And then the court did not check anything. He did later.
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Andrew Weissmann
I know lots of people have given words to describe this. It's sort of like autocratic legalism, but to me, it's like those Western towns in a movie, like a John Ford Western. You have the veneer of real life, but it's really a Potemkin village, and it's really been carved out and hollowed out that the court is just doing the bidding. It looks like a court. It appears to be doing the independent analysis, but it's actually just a handmaiden to executive power.
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Kim Lane Scheppele
Exactly.
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Andrew Weissmann
Is that fair?
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Kim Lane Scheppele
Absolutely. And so I learned from there how you recognize a PAC court. So it didn't always rule for Orban, so it ruled against him, for example, especially in cases where Orban had walked himself into a cul de sac and he wanted to change his mind without backtracking. So then the court would declare what he had done unconstitutional. He would say, look, we have an independent court. I'm going to follow the decision. And then he would backtrack without backtracking. Right. So that was one thing. The second thing is occasionally when the court would be called a pact court, they would rule against Orban in a case where they didn't actually block what he wanted to do, they just blocked the one thing he had tried and he could do it in some other way so it didn't actually get in his way, you know. And then the third case was where they had some giant human rights case where the public was involved and agitated, but where ruling against Orban wouldn't really interfere with his consolidation of power. And then it occasionally makes some human rights ruling. So that's how PAC courts operate. It's like a clock. It can be actually right twice a day, broken clock.
- [10:00]
Andrew Weissmann
What about the media? Was there? How was the media treated? I mean, obviously, people listening to this can think about what's happening here with the media, but what was happening there.
- [10:10]
Kim Lane Scheppele
Yeah. So Orban came into power with his own kind of media behind him, but then he got control of public media, which in Europe is a big thing, and he just flipped it over to his side. But the crucial thing was that they used regulatory measures in order to weaken the fiscal position of media so that they're all teetering on the brink of bankruptcy, and then his oligarchs swoop in and buy up the rest. That may sound a little familiar.
- [10:35]
Mary McCord
Exactly. And this is exactly where I was wanting to go, Kim, which is he used his power and the party to enrich his family and supporters. Give us a little bit more granularity on how he accomplished that, because this is where it starts to sound very, very familiar.
- [10:50]
Kim Lane Scheppele
Absolutely. So Orban, people call him an ideologue, want to label him far right, et cetera. Ideology has actually never mattered to Orban. He was interested in creating a kleptocracy. So everything he was doing was finding a way to shovel public money into private pockets. So he did it through state contracts, he did it through rearranging the fiscal situation to take the EU money that was the main source of kind of hard currency flowing in and figuring out how to direct that to his friends. So his best friend from high school, who was like a blue collar worker, is now the richest guy in Hungary, and everybody calls him Orban's quote, walking wallet, because he's just the place where Orban stuffs all of his own cash.
- [11:29]
Andrew Weissmann
So how, given 16 years of this conglomeration of power, how are the people able to have this resounding, resounding win and tell us about how many seats they got? But how are they able to do that? And what was the strategy of the challenger? And then can you tell us how to pronounce his name?
- [11:52]
Kim Lane Scheppele
Right, let me start with the Hungarian. So the wonderful thing about Hungarian is that it's completely phonetic, if you know how their letters work and the accent's always on the first syllable. Okay, so his name is Peter Modjar. Modyar. So the gy Think of it as a dg. Okay. And then you've got it. That's because a GY is actually a letter in the Hungarian Alphabet.
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Andrew Weissmann
Oh, okay. So how did Peter. Because that's easier for us to say.
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Kim Lane Scheppele
Yes.
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Andrew Weissmann
So where did he come from? And what was his strategy, given what he was up against? And what was the context that allowed this final demise after 16 years? Where, obviously, by the way, as the New York Times reported, something that is still stunning to me, that Orban was backed in this election by Putin and Trump. And days before the election, J.D. vance was there, and Donald Trump was on the phone at one of the rallies saying, he's my guy. Putin and Trump were backing Orban. Just digest, Stop for a moment and just take that in if you have any doubt about where we are in the United States as a country. But, Kim, how did we get to where we are? This amazing victory.
- [13:04]
Kim Lane Scheppele
Yeah. So first, let me start with the Putin, Trump stuff, because Orban has created this immense alliance of oligarchs, immense alliance of autocrats, I should say. The dictators of the world unite. That's kind of where we are. And we don't know a lot of the details, but some of them leaks in the last couple of weeks that Orban has actually overtly been Putin's Trojan horse inside the eu. We now have tapes that leaked. European security services have helped the selection a lot because tapes have been leaking, undoubtedly from European security services that have conversations between Orban and Putin where Orban says, we are the mouse, you are the lion, like, we are willing to help you, basically. And then there are conversations that leak. Tapes are out between the Hungarian foreign minister and the Russian foreign minister, where the Hungarian foreign minister is taking a call. The Russian foreign minister says, there's some Russians on the European sanctions list. Can you help us get them off? And Peter Syrto, who's the foreign minister, says, yes, fine. And then the Hungarians do it. And so the question is, what's the quid pro quo? And it must be cash, because Orban's government was cash strapped. But, you know, that part we don't know yet. So it's even more than just an alliance. What Orban went to Trump for was to get money. And actually, what hasn't been so reported in the American press is that the eve of the election, Trump tweets, we have your back financially. Okay? Almost promising to Orban what he had promised to Milei in Argentina, that the US Will bail out this government if Trump's preferred candidate is reelected. So this is not just general ideological alliances. It's really deeper than that. And if I can say one more thing about Orban and Trump, Orban, after he consolidated power in Hungary, then decided to spread the word and try to develop more allies, both in the EU and of course, in the US Orban created a whole network of think tanks and boot camps. And it's a big ideological project. Orban was spending 1% of Hungarian GDP on this enterprise. What the English language think tank that Orban Set up is called the Danube Institute. And the Danube Institute was one of the partners with Heritage in Writing Project 2025. So a lot of the similarities, you guys know, I keep predicting what Trump was going to do next, especially in those early days, and it was because he followed exactly the program that Orban had followed when he first came to power.
- [15:22]
Andrew Weissmann
So how was it that he was able to be defeated?
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Kim Lane Scheppele
How did he lose? Well, you know, it's the economy, stupid, right? So Covid was a huge hit for the Hungarian economy. And it made absolutely clear that Orban had underfunded the health sector. We don't actually know what the numbers are coming out of Hungary about COVID deaths, but it is probably the third largest, third highest per capita in the world after the US and Brazil. But they never published the stats, but people knew that. And then what happened was that Orban was hit with inflation. The world was hit with inflation. After that, Hungarian inflation went above 20%, which is just something a public can't live with. And then there was a lot of other economic mismanagement and then the eu. And this was, I have to admit, my conflict of interest. This is the thing I've been working on the last 10 years. Can we get the EU to cut their money? Because that's how Orban's people got rich. The EU, December 2022, cut most of Hungary's EU funds. And all of that created this economic catastrophe within the country. And within a few months, Peter Modyar, inside Orban's orbit, he's part of the cog in the Orban machine, suddenly jumps out of nowhere that he was not a figure in Hungary. And because he was married. This is the drama part. His ex wife had been Orban's justice minister and he had taped some of their conversations during the divorce, during which she disclosed some of Orban's corruption. Oh, my goodness, you can't make this stuff up. So Peter Madhyar kind of pops out with the tape with the Judit Varga tapes, that's his wife's name, and goes on by this time all the TVs controlled by Orban, so they have this YouTube channel called Partizan. He goes on Partisan with this interview and the tapes and suddenly becomes a superstar in Hungary for explaining what everybody knows, which is the government's corrupt and we have the receipts. Everybody's getting poor and they're getting rich, okay? And that's his campaign. That's exactly what he argues. And he's smart enough. He's a lawyer. Orban's a lawyer. They're all lawyers. I have to say this on a legal podcast. The entire thing is being done with legal means under the surface. That's what makes it interesting to us law types. Right.
- [17:32]
Andrew Weissmann
And in terms of how Peter positioned himself, was he running to the left? Was he running on the right, the center? How did he position himself? Because that's something. Again, it's not one to one, but it is something that listeners may be thinking about that. Is there a potential lesson that we learn from this?
- [17:52]
Kim Lane Scheppele
Yeah. So Peter Madar comes out of Orban's orbit, and Hungary is a center right country. I don't think you're ever going to get a government that is anything that looks remotely left. And that's where the opposition has been so far. So Peter Magyar comes out, he sort of positions himself as a center right guy, basically adopting all the same policies as Orban. Okay. But here's the thing about this election, which I think is really crucial to learn. A lot of us tend to think about politics as left right. In that spectrum, Peter Maduro is the center right. But this election was not a left right election. It was a democracy autocracy election. And Peter Modillar was saying his campaign was they've gotten rich, you've gotten poor, and it's because they're dictators. It's because you've lost your voice in this system, because you can't change it. And I, if I am elected, will change the entire thing. And just to give you, since we're doing Hungarian lessons this morning, he never referred to the Orban government. By the way, the word for government in Hungarian would be corman, like the Trump administration, it would be that word. Corban Modar always referred to the Orban government as the Orban renser, which means order, which means system. It's the way you referred to the communist governments. Right. And he kept saying, I will promise a renser waltas, which is a system change. So this was not a left right election. It was a democracy dictatorship election.
- [19:17]
Mary McCord
So that's a perfect segue to the last question. What can we learn? What are the lessons? Maybe it's too much for a brief last question, but we're not the same country. We don't have a system that would allow a winner by that much to change the constitution. But we do have more and more, I think, recognition of the corruption. Right. The enriching the Trump family, Trump's allies, to the detriment of much of the population. What can we take from this?
- [19:45]
Kim Lane Scheppele
Yeah. So Peter Modyar, for The last two years has actually campaigned in the countryside. He knew he had the cities. The countryside was Orban's base. And he's gone around to every village in person, talked to people where they are about their concerns and ran a campaign that didn't give up on anybody. Right. That appealed to the entire Hungarian public. But the other thing I think he did that was absolutely crucial in this election was to not run on a checklist. Right. The Democratic Party in the US tends to run that checklist. We will give you healthcare and whatever. What he did was to connect the dots was to say they are getting rich because you are getting poor, because it's the type of government that you have. And everything came back to the system change, to the fact that Orban had locked down all power in his hands. That's why the government became unresponsive. And so he was not running a checklist, he was running a. The reason why all this stuff is happening is due to a single cause and that's the dictatorship. Right. And so that's a different kind of campaign than we've ever seen here.
- [20:52]
Andrew Weissmann
And tell us, what was the nature of his win? Like how big did he get Enough of a majority to be able to get through the kinds of changes he wants to institute.
- [21:01]
Kim Lane Scheppele
Yeah, well, so when you win an election, usually you just win a majority. There's 199 seats in the Hungarian parliament. If he'd won a hundred seats, he'd be able to form the next government. But as I mentioned at the very beginning, there's this amendment rule to the constitution which Orban kept when he introduced the new constitution. And that is you can change anything in the constitution and any law in Hungary with a single 2/3 vote of a unicameral parliament. 2/3 is 133, Mauder has 138.
- [21:29]
Andrew Weissmann
So I don't do math in public, but I can tell you that is more than 133.
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Kim Lane Scheppele
Exactly. Wasn't going to give you a challenging math problem, Andrew.
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Andrew Weissmann
Right. Look, so that's huge.
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Kim Lane Scheppele
Yeah. So he has the super majority, so he can do anything. So here's the problem. He can pass any law. The president who has to sign off on laws is still an Orban guy. Right. The Constitutional Court which gets to rule on laws is still packed by Orban. So he's got to do some cleaning house before he can even use this constitutional majority that he has. And that's going to be task number one.
- [22:05]
Andrew Weissmann
So, Kim, can you do us a solid? And as we go forward and we Watch to see how does somebody deal with sort of how do you disentangle that to make those systemic changes. That's going to be really interesting as potential object lesson should we be so fortunate to be in that position. So I have a feeling we're both going to be twisting your arm. Thank you so much for joining us. It's so invaluable to us and to our listeners to have your expertise on this.
- [22:35]
Mary McCord
Yes. Thank you so much, Kim.
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Kim Lane Scheppele
Thank you. This is my dream to be on your podcast. So happy to do it.
- [22:41]
Mary McCord
Fantastic.
- [22:42]
Andrew Weissmann
We aim to please.
- [22:43]
Mary McCord
We do love it. Thanks so much, Kim.
- [22:46]
Andrew Weissmann
So, Mary, let's take a break. That was fantastic. Let's come back and talk about the Office of Legal Counsel opinion that has now been made public in the beginning of April of this year claiming that the executive branch does not have to comply with a long time congressional statute requiring the executive branch and particularly the president to retain presidential records. And they get turned over. There's a lot of different ins and outs of this. So let's take a break and come back and talk about what's going on with that and the lawsuit that's now been filed challenging the Office of Legal Counsel opinion.
- [23:27]
Mary McCord
That sounds good.
- [23:35]
Nicole Wallace
Ms. Now presents the chart topping original podcast, the Best People with Nicole Wallace. This week, tech and media journalist Kara Swisher.
- [23:45]
Andrew Weissmann
Longevity should be about not how long
- [23:47]
Kim Lane Scheppele
we're going to live, but how well
- [23:48]
Mary McCord
we live in the time we have here. And that means better health too and better outcomes.
- [23:53]
Nicole Wallace
The Best People with Nicole Wallace listen now. For early access ad free listening and bonus content, subscribe to Ms. Now premium on Apple Podcasts.
- [24:10]
Andrew Weissmann
Mary, what did the Office of Legal Counsel do? And maybe you want to give us some background on what's the genesis of the law that they say is unconstitutional? It might be useful for people to know how that came about and essentially the compliance that every administration since Watergate has had with this law.
- [24:32]
Mary McCord
Well, Watergate is exactly how this came about, right? Like many other government reforms post Watergate and both legislative and normatively and a lot of those norms, as we know, have been broken and even laws have been broken. Because if you have a lawless executive, then it really doesn't matter what guardrails you've established because they can be broken. But let's just talk about Watergate. So what led to the Presidential Records act was that when President Nixon resigned, he told the government archivists to pack up and ship all of his records. That is some 42 million pages of documents and 880 tape recordings of conversations and people our age and people younger who have studied it will recall that there was something of a scandal about the tape recordings that President Nixon, I remember that. And it was actually not very smart on his part because those tape recordings revealed many, many things, such as the Watergate cover up t recordings in the White House, in the Oval Office that he had kept during the course of his presidency. So understandably, because the special prosecutor investigating Watergate had already been, you know, seeking and access to those tape recordings, he decided, hey, I'm going to have everything packed up and taken with me out to California, which is where he was going after his resignation. But before he was able to do that, the special prosecutor, the Watergate special prosecutor, ask President Ford says, look, I really need these materials. And President Ford requested that the Attorney General give an opinion about ownership of the materials. And the Attorney General at the time did say, look, there is a historical practice of former presidents keeping their own presidential records in the absence of any governing statute to the contrary, but said that there is a public interest which may justify subjecting the absolute ownership rights of the ex President to certain limitations directly related to the character of the documents as records of government activity. So following this, Congress passed the predecessor act to the Public Records act and it was called the Presidential Recordings and Materials Preservation act, and it was directed specifically to these Nixon records. Let's be clear about that. But it basically was very much a predecessor statute. It said these records are the property of the United States. They're not personal records of the President. It required a procedure and regulations for the archivist pull out anything that truly is personal and provide it to the President and to retain custody of all the other records that were part of the public records and to have a process for how these could be accessed. To be clear, this did not make those records immediately accessible to anyone who wanted to look at them, including members of Congress. This is just saying you can't take them with you and destroy them if you want or sell them if you want or whatever. They are part of the public record for historical purposes. Well, that was immediately challenged by, at that time, former President Nixon as being unconstitutional and a violation of the separation of powers. He made a number of other claims too, but I think most pertinent purposes of this OLC opinion was he argued that this is a violation of the separation of powers. And the Supreme Court held, we reject at the outset appellant's argument, appellant being Nixon, that the Act's regulation of the disposition of presidential materials within the executive branch Constitutes, without more, a violation of the principle of separation of powers. Now, one thing they did make clear, which is the same today, is it's not as though those records were immediately going over to Congress, like I said, or going to the judiciary or going to some outside the government institution. They were to be maintained by the archives, right. Agency within the executive branch. But it wasn't just because they were staying in the executive branch that was load bearing, I think, for the opinion. It was also that the arguments that Nixon had made, I think, and I'll be curious what you think, are very similar to the arguments that the Office of Legal Counsel has now made to say the Presidential Records act is a violation of the separation of powers. But the conclusion by the Supreme Court was the opposite.
- [28:50]
Andrew Weissmann
Wait, Mary. In that situation where the Supreme Court says one thing and a lawyer in the executive branch, just to be clear, when we keep on saying the Office of Legal Counsel, that's just some lawyer in the executive branch. So let's see if you've got the Supreme Court of the United States and some lawyer in the executive branch, you know, who wins.
- [29:12]
Mary McCord
The Supreme Court.
- [29:13]
Andrew Weissmann
The Supreme Court. So the Office of Legal Counsel can write something that says, we disagree with it, we think it should be challenged. We think we have arguments that we can make as to why they got it wrong. But this is what you don't get to do. And thus we're going to violate the law. Nor could you say to people, oh, go ahead and ignore that Supreme Court case because it's the law of the land. So when people were talking about, at the outset of the presidency, the second Trump administration about a constitutional crisis, it's in the weeds here. This is that constitutional crisis. I mean, they just basically say, you're wrong. Well, that's fine, but guess who's wearing the robes.
- [29:56]
Mary McCord
That's right. And they argue this is not that same Nixon act, this is a Presidential Records Act. And we'll talk about the fact that, yes, there are some minor differences, but honestly, in substance, in terms of the separation of powers analysis, these are the same. And the Supreme Court, in saying what they rejected, Nixon made an argument if the legislature can restrain the executive in this way, that is a violation of separation of powers. Like, we each have our own separate lane, the executive branch lane, the legislative branch lane, the judicial branch lane. And these don't overlap with each other. And that has been rejected since the founding. And that's what the Supreme Court rejected. They said they looked back at a case where Nixon had sought to prevent the special prosecutor from gaining access to the tapes for use in a criminal prosecution and said even in that case, the Court squarely rejected the argument that the Constitution contemplates a complete division of authority between the three branches. Rather, the unanimous court essentially embraced Mr. Justice Jackson's view, expressed in his concurrence in Our listeners will know this is our favorite case, Youngstown Sheet and Tube Company versus Sawyer. And quoting from Justice Jackson, the Supreme Court said, in designing the structure of our government and dividing and allocating the sovereign power among three CO entities, the framers of the Constitution sought to provide a comprehensive system. But the separate powers were not intended to operate with absolute independence. Instead, they said the proper focus is on the extent to which what Congress did in this Presidential Records act prevented the Executive branch from accomplishing its constitutionally assigned functions. And it found that here, whatever the possibilities for maybe some future conflict, there's nothing on the face of the act that is unduly disruptive of the executive branch and unconstitutional on space. So that should govern. Nevertheless, what does OLC say?
- [31:54]
Andrew Weissmann
I'm going to read key parts of this, what's called Nixon versus gsa. That's the name of the case that we've been reading from. And then I just want to tell you why I think that the subsequent statute is even stronger because I think it there's actually good reason or even better reason to find that statute is constitutional. So one, here's some language from that decision on the prior statute. An incumbent president should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. And then the Court rejected Nixon's argument that the act was unconstitutional because, quote, the potential disclosure of communications given to the President in confidence would adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decision making. So that just is squarely the argument that OLC is hanging its hat on now. But the subsequent statute, I think, is even stronger because it's not targeting any particular president. It is creating a uniform system. You don't have to worry about, Mary, what you and I have called the Supreme Court worrying about tit for tat and one administration going after another. This is a uniform blanket requirement for all presidencies. And so to me, it removes that concern about is this going to be weaponized? Because it's just something that applies to everyone, uniformly, whoever the President is.
- [33:41]
Mary McCord
Yeah, I think this is a great segue to the OLC's argument because they want to, not surprisingly, rely on Trump, the United States, the immunity decision, to basically say there are no overlapping powers. If something is within the executive branch's power, Congress can't touch it, because if Congress touches it, then that weakens the President's power. These things are, like, mutually exclusive in their view. And in fact, they talk about, within our divided system, they talk about the framers being so, so worried about a legislature that would aggrandize itself.
- [34:14]
Andrew Weissmann
I'm sorry, the executive is worried about the legislature aggrandizing itself. I mean, pot, kettle, 100%.
- [34:22]
Mary McCord
And in response to that, the OLC says, within our divided system, the chief executive occupies a unique position. And it's true. The Supreme Court has said that, he says, and then they cite from Trump, the United States. The framers considered the President's energetic, vigorous, decisive, and speedy execution of the laws constitutionally indispensable for good government. The President's powers are of unrivaled gravity and breadth. And so their point is, anytime that you have any infringement on the executive's powers, and they're calling this an infringement by the legislature, saying these records are records of the public, that is an infringement on the Article 2 authority of the President, and that is unconstitutional. That is the core of, of their holding.
- [35:09]
Andrew Weissmann
When you say holding, you mean the LLC opinion.
- [35:13]
Mary McCord
Yes, yes. It's not a holding, it's not a court.
- [35:16]
Andrew Weissmann
Because I understand the reason you're saying holding is because they're treating themselves as if they're the court that sits over the Supreme Court. That's the part that I just can't get over. But also, there is a Supreme Court case on this predecessor statute I think is stronger. And the next step of this is to say, I don't think Congress should have any oversight responsibilities. I mean, there's just so many ways that Congress and the courts and the executive branch, the three branches do intersect and do check each other. It's checks and balances. And so this idea that there can't be any touching on this is one that the Supreme Court has rejected and taken to its logical extreme. This is a manifestation of what we saw defeated this week in Hungary.
- [36:09]
Mary McCord
And to be in keeping with this idea that they treated it like a holding, like they were a court over the Supreme Court, the conclusion is the pra, that's the Presidential Records act, is not a valid exercise of Congress's Article 1 authority and unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article 2. The act establishes a permanent and burdensome regime of Congressional regulation of the presidency untethered from any valid and identifiable legislative purpose. For these reasons, the PRA is unconstitutional and the President need not further comply with its dictates. That is about as definitive as you can get.
- [36:47]
Andrew Weissmann
Unbelievable in your face. That is talk to the hand.
- [36:51]
Mary McCord
And that's why we have litigation. But can I say one other thing about this first, when I read this OLC opinion, it's long, it's 52 pages, single space. They did a lot of their analysis as though they were analyzing this as something that is making these records all immediately available to the legislature. And they relied on law, which, again, the law is pretty well developed in this area, including in Trump v. Thompson, most recently, a law about what are the privileges that a executive, even a former executive, a former president, can assert to prevent certain presidential records from being disclosed and they don't have an absolute privilege. Depends on what the demonstrated need is for those records. Right. And whether it's for a criminal investigation, whether it's for the legislature, the Congress to exercise its legislative authorities, which it was with respect to the House Select Committee. Looking at the efforts to overturn the election in 2020 and looking at other things they should legislate about that they had that legislative author. The Supreme Court's been clear. Executive privilege does not completely bar Congress or members of the public or a criminal prosecutor from getting access to those records. But there's this balancing of interest that has to take place. And even then, the OLC is looking at this just mere preservation of the records, as though we're in the midst of a tussle over who gets access to the records. And I think it's just the wrong frame. But this ending conclusion is what led to the litigation.
- [38:23]
Andrew Weissmann
Yep. So there is a lawsuit that was filed by historical association. It was filed in Washington, D.C. so there's no decision yet. It was just filed. And for the moment, it is. Before Beryl Howell, there is a motion that was made by the government saying that when the plaintiffs filed this, they. They said that this case was related and should be before Barrel Howell because it relates to a prior litigation involving foia, that is the Freedom of Information act and the government. Unlike the LLC opinion, the papers that the government filed about why they thought this was not related are totally plausible argument as to saying why they think this is not related. I actually, when I read the papers, they were respectful enough. They were legal in nature. There was nothing sharp or immature about them saying this is why they think that it was not appropriate to relate this case to the other case that was before Judge Howell. So we will see the plaintiffs will presumably respond to that, and then Judge Howells will make a decision about whether she is going to keep the case or whether she will put it back in the wheel, and then it gets spun out randomly to another judge. But in the D.C. federal court and
- [39:53]
Mary McCord
this case, to the extent people are saying, what is this historical association and American Oversight, a nonprofit that does do work really, to, you know, affect transparency and what the government's doing and come out with reports on what the government's doing, how can they bring this case? Well, their argument is, in fact, this historical association is one that sort of has a congressional pedigree. It was established in part by Congress. But historians need access to presidential records in order to write history, Right. In order to analyze governmental operations over the course of our history, analyze them. Of the Presidential Records act for the
- [40:29]
Andrew Weissmann
statute, the two key purposes were one for history and two, for subsequent executive branch members to know the history so that they know what was done in the past. And they're not, as I the quote I read is they're not just subject to the whim. That's their administrations. We have talked about that, like, both of us have had jobs in the government. And you rely on people who have been there, and you rely on records that are there to give you a history of what you have done in the past, what the reasoning was, so that you can make a better decision going forward.
- [41:03]
Mary McCord
That's right.
- [41:03]
Andrew Weissmann
And so those were the sort of the two purposes. And the Historical association is coming right in on one of them, saying, well, guess what? We are the Historical Association. This is an interest that Congress is seeking to protect.
- [41:16]
Mary McCord
That's right. And they cite in particular the conclusion, right. That the President, the White House, the archivist doesn't have to comply. And then they cite in the complaint on Information and Belief the acting archivist who has adopted the position that the National Archives and Records Administration does not have to comply with Presidential Records act because the President has commanded by executive order that the President and the Attorney General's opinions on questions of law are controlling on all employees in the conduct of their official duties. And so from his view, the archivist doesn't have to do what they've always done to preserve those records. And it notes also that the acting archivist is also the politically appointed administrator of the gsa, the General Services Administration, the defendant in the Nixon case we've been talking about, and he was installed as acting archivist. Get this. On the same day that Olc issued its opinion declaring the Presidential Records act unconstitutional. So this lawsuit alleges separation of powers, violation of separation of powers, kind of like just the flip side of what Nixon argued way back in the 1970s. They obviously rely on that case and say that it's controlling here. And I agree with them on that. And then they also bring some other claims directly against the archives. So this is at its early phases. But I think that, like you said, this is a perfect continuation of our discussion with Kim, because if the OLC opinion is allowed to govern the executive branch, you can have not only what Donald Trump did after his last presidency, he just takes a bunch of records with him, but he could destroy them. He could prevent anyone from ever seeing them, Congress or anybody else, and we would really have a complete void in terms of what went on in this White House during these Trump two years.
- [43:07]
Andrew Weissmann
But what that means is for those people thinking, well, the President already has pardon power and is talking about he was going to pardon everyone within a certain number of yards of the Oval Office, and so he's going to extend this get out of jail free card. But this statute and the interpretation of the statute saying that we don't have to comply with it adds another layer and another important layer. It means that it's very hard for there to be state prosecutions, that you won't have records on that.
- [43:34]
Mary McCord
Yeah.
- [43:35]
Andrew Weissmann
It means that you also won't have accountability politically to see what was going on. And this is true, by the way. Look at this. Not just in the Trump administration, for any administration, there should be accountability and there should be transparency within the meaning of this statute so that there can be political accountability for what people did. And this is removing both the specter of state prosecutions and being able to use those documents for that. And it's eliminating the ability to have transparency for political accountability. And obviously, the purposes that Congress passed the statute for, which is the historical record of what happened, is one that this is part of an authoritarian playbook, which is you will believe and history will record what we tell you to believe and what we tell you to record and you get rid of essentially, like the crime scene evidence. And so that was what the statute was trying to avoid.
- [44:37]
Mary McCord
One more thing. I don't think you included in that list. How about using these records, including potentially classified information, for your own personal purposes, maybe for your own business interests, maybe sharing them with those who are not entitled to see them in ways that you can use to aggrandize yourself and your family and make money a la Victor Orban. So lots of danger here and really is something that should be getting a lot more attention, in my opinion. But let's take a break here and come back and talk about things that are getting attention but just make me just like weary to even think about.
- [45:14]
Andrew Weissmann
What a tease. What a tease.
- [45:15]
Mary McCord
What a tease. What a tease.
- [45:17]
Andrew Weissmann
We're going to talk about things at the Department of Justice. It's a confluence of things.
- [45:22]
Mary McCord
It's a race to the bottom.
- [45:23]
Andrew Weissmann
Exactly. To me, when you have nobody being nominated for attorney general, you have a question of who can be the biggest sycophant.
- [45:32]
Mary McCord
Yes.
- [45:32]
Andrew Weissmann
To get the brass ring.
- [45:33]
Mary McCord
And we have a front runner right now.
- [45:43]
Nicole Wallace
Listen to your favorite Ms. Now shows anytime as a podcast. Enjoy new episodes of Morning Joe, Deadline, White House and the Rachel Maddow Show.
- [45:53]
Mary McCord
Every small d Democratic muscle that we have is flexing.
- [45:57]
Nicole Wallace
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- [46:18]
Mary McCord
Welcome back. Right before the break, I think you teed up perfectly some of Todd Blanch's comments at a press conference. And I will just read them very briefly, but I will not try to do them in Todd Blanche's voice because I can't do that. As to whether or not I want this job, I did not ask for this job. I love working for President Trump, blanche said in his first public remarks since Bondi's firing. It's the greatest honor of a lifetime. And if President Trump chooses to keep me as acting, that's an honor. If he chooses to nominate me, that's an honor. If he chooses to nominate somebody else and asks me to go do something else, I will say, thank you very much, I love you, sir.
- [46:56]
Andrew Weissmann
So I'm going to maybe surprise you. Is it the ideal choice of words? No. It's a little odd, but if I was hearing this from somebody who is otherwise acting responsibly and independently, I would say, look, that's not a great choice of words because of the history of independence. And to put it in context, I think it was Eric Holder who had said about President Obama, I'm his wingman. And at the time, also not a
- [47:30]
Mary McCord
great, not a super great choice of words probably.
- [47:33]
Andrew Weissmann
Exactly. That's what I'm saying, is that those the reason that sort of like I love him or I'm his wingman is, well, it may be it both be truthful expressions. They don't honor and signal that you understand the independence. Now, to be fair, I'm not trying to equate Eric Holder with Todd Blanche in any way, shape or form. I'm just saying if you just were only looking at those words, that wouldn't be the thing that I would hang my hat on. What has happened, though, is obviously, we have seen the efforts to indict James Comey, Letitia James, the two grand jury subpoenas that were struck down to the Federal Reserve, the effort to indict six members of Congress for what, adhering to the First Amendment and speaking the truth about the military. And now you have even more things that are coming up and the government trying to defend them. And so to me, it's in that context. And so, for instance, the latest, as you said, Mary, was the idea that there's been some leak of some sort, which I have to presume came from people within the government because Cassidy Hutchinson would have no interest in leaking it. I can't see any. That there's a criminal investigation of Cassidy Hutchinson. And there it seems so similar to what Judge Boasberg was dealing with with the Federal Reserve, which is any discrepancy is not a ground to open a criminal investigation. A discrepancy you have to think about, well, is there intentionality? Is this somebody who's intentionally lying? People make mistakes all the time. And so one of the things that Judge Boasberg looked at, he said, I just don't see anything with respect to the Federal Reserve and the building of this. This building, even if they're cost overruns that suggest in any way that there's fraud and there's intentional fraud that's going on.
- [49:40]
Mary McCord
And what I do see is a vindictiveness because of all the statements made by the president about Jerome Powell and about the Federal Reserve.
- [49:47]
Andrew Weissmann
Exactly. And so the idea that this is coming now when there's. Every major news outlet is reporting about this sort of increased pressure on the Department of Justice to go after perceived enemies. And then, lo and behold, Cassidy Hutchinson, who was a key witness in the January 6 hearings and wrote a book about it, is now somebody who, it appears the government has leaked that investigation. As I said, it doesn't make sense that it would be coming from her camp. But that's surmise on my part. But, A, you shouldn't be leaking it. And two, there's still no indication as to why anything that suggests that it's. There's some intentional misconduct, that's true.
- [50:33]
Mary McCord
And it also has no business being in the Civil Rights Division, it's not a civil rights matter. There's nothing within the Civil Rights Division founding principles or documents or authorities that would suggest it should be there. But Harmeet Dhillon, the Assistant Attorney General for Civil Rights, has been perhaps one of the most successful of the DOJ leadership team in actually executing the president's retribution campaign. And she's done that not through prosecutions, but through affirmative cases brought against academic institutions and others based on their DEI initiatives to try to promote diversity, equity, and inclusion. And those have been attacked as being contrary to religious rights of certain people, too. Woke, et cetera. So I think it could be that perception of her as being successful at carrying out the president's retribution campaign that is why that investigation, at least reportedly based on the reporting, is with her. But to go back to what Todd Blanche said last week, there's another piece of it that I think provides that context for the statement that you're right, is not that bad on its face. It does suggest groveling, but it is true that as a public servant, you should be willing to honor whatever, you know, if you're a political appointee and the president says, I want to move you from here to there, I mean, I get it that you would say, I will do what the president asks me to do. The groveling is, I love you, sir. But more troublesome, in that cpac. Right. Conference, he sort of bragged about the fact that everyone at the Department of Justice and the FBI who had anything to do with the investigation and prosecution of Donald Trump was gone, removed, out. And he suggested that this was for ethics reasons. He said, look, if you were a prosecutor and you were trying to prosecute your boss, you have ethical duties as a lawyer that I think prevent you from continuing to work in that environment. And that raises a lot of questions, because essentially what he's saying through that statement and other statements is that the allegiance of these prosecutors is to the president, not to the Constitution. You, as a prosecutor, you take an oath of office, and it is not to the president, it is to the Constitution. Yes, you are part of the executive branch. Yes, the president can send policies that you need to in your work, you need to direct your work toward the fulfillment of those policies. But when it comes to prosecutions, you're doing those in the name of the United States of America. And so to suggest that there's an ethical conflict then between the fact that you at an earlier time worked on a prosecution where Donald Trump was the target and that you now would violate your ethical responsibilities by remaining at the Department of Justice doing the work in the name of the United States of America, not in the name of the president. That strikes me as quite a bridge too far.
- [53:24]
Andrew Weissmann
It is. But, Mary, you know why? If you are putting yourself into his head, when people think like, how do people like that live with themselves? How do they justify this to themselves? Remember, he was Donald Trump's personal attorney. Yes. And so one way to resolve that, because just to be clear, normally in any administration, if you were his personal attorney, you would recuse from all sorts of cases that involved Donald Trump. And that is actually part of the reason, but not the sole reason, that Attorney General Sessions was so vilified by Donald Trump in his first term, because he said, look, I worked on the campaign, it's not appropriate for me to be overseeing the Russia investigation. But I think with Todd Blanche, if he thinks of himself as I was
- [54:17]
Mary McCord
his lawyer, I'm still his lawyer.
- [54:19]
Andrew Weissmann
Exactly. And that to me is such a tell. And it's a way to deal with what we see on its face is such an obvious, not just conflict, because if you were his lawyer, you now have a conflict, because your obligation is not to a person. Your obligation is to the Constitution. And at times, this is why under the Biden administration, you could have the Department of Justice saying, we're going to appoint a special prosecutor to look into Joe Biden or to look into Joe
- [54:52]
Mary McCord
Biden's son while he was the sitting president.
- [54:55]
Andrew Weissmann
Exactly. You're going to look into Democrats, even though it's a Democratic administration. And the same way, by the way, Republicans, prior to Donald Trump would look into Republicans. It's a norm that we're so used to that people of the Department of Justice think about things not in terms of, if it helps my president of my party, I'm going to do this, but otherwise, I'm not. And so, as we've talked about, it's like the law applies to my enemies, but not to my friends.
- [55:23]
Mary McCord
Yes, exactly right. And just before we close, because we teased it at the top, this is the same Department of Justice who is responsible for firing immigration judges. Now, people might say, wait a minute, judges. But remember, immigration judges are not Article 3 judges appointed, nominated by the president and confirmed by the Senate. These are just Article 2 judges within the executive branch. They are administrative judges. They are part of the Department of Justice. And these are two judges who oversaw the cases of Ramesa Ozturk and Mohsin Madawi. These are students who were attempted to be removed and deported based on their exercise of constitutional First Amendment rights on
- [56:06]
Andrew Weissmann
campus, Tufts and Columbia.
- [56:08]
Mary McCord
That's right. And so is there a clear line between the way they handled those cases and ensured that those people got their due process and their constitutional rights and their firing? I can't prove that, but it certainly raises a lot of red flags.
- [56:22]
Andrew Weissmann
Well, because they're two examples of what has been over a hundred removals of immigration judges at a time when they need more immigration judges. And so you really get this sense that where they're swapping out the ones who are independent for the ones who are not independent, that will do our bidding. And so it will, though, I think, have ramifications when there's review by courts of what these immigration judges are doing because they see what's going on.
- [56:53]
Mary McCord
That's right.
- [56:54]
Andrew Weissmann
And so that sort of deference that you might normally accord, that only goes so far, at least in my book. If you've got a legitimate process going on, if you stack the deck with the judges who, you know, the immigration judges who are doing it, don't turn around and say to the Article 3 judges who review their decisions, oh, you have to defer. I mean, the government will do that. But I think that it's going to come with poor Grace when that happens.
- [57:20]
Mary McCord
Yes, absolutely. And again, we'll talk more about the firings of all the prosecutors who were involved in what the administration has now labeled unjust prosecutions related to violations of the FACE act, the Freedom of Access to Clinic Entrances Act. And this is about using force or threat of force to injure or intimidate someone who is trying to go to a clinic to obtain reproductive services. So we're not just talking about exercising First Amendment rights. We're talking about force or threat of force, intimidating people. So more to come on that. But that's what our Department of Justice is up to.
- [57:57]
Andrew Weissmann
So, Mary, that was great. Thanks for listening, everyone. And remember, you can subscribe to MSNow Premium on Apple Podcasts and you can get this show and other MSNow Originals ad free. And you'll also get subscriber only bonus content. And remember, we are now available on YouTube. Head to Ms. Now Main justice.
- [58:21]
Mary McCord
This podcast is produced by Vicki Brogolina and Donnie Hall. Colette Holcomb is our intern, production support from Max Jacobs. Bob Mallory and Hazik bin Ahmad Vered are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for Ms. NOW Audio.
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Andrew Weissmann
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