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Main Justice
Real Life Consequences
00:57:41
The investigation into Charlie Kirk’s murder continues. And the ‘presumption of regularity’ is not a foregone conclusion in Trump 2.0.
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- [00:00]
Stephen A. Smith
It's Stephen A. Smith here. You want sports. SiriusXM's got it all. Every game, every team, all season long. Debates, rants, hot takes, and no filter whatsoever. Trust and believe. You don't want to miss what I have to say this week on the Stephen A. Smith show, only on SiriusXM.
- [00:15]
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- [00:51]
Andrew Weissmann
Hello and welcome back to Main Justice. It is Tuesday morning, September 16th. Oh, my God. God, I cannot believe it is mid September. Well, I've already started our discussion, and as you all know, I'm Andrew Weissman, and that person who has not responded is the wonderful Mary McCord. Hi, Mary.
- [01:10]
Mary McCord
Good morning, Andrew. I can hardly believe it's mid September as well, but I am definitely appreciating temperatures that are in the 60s and low 70s instead of an 80s and 90s.
- [01:20]
Andrew Weissmann
You know, it's so funny given, like what we're about to talk about. This is like the calm part of the podcast where it's like a touch of normalcy.
- [01:28]
Mary McCord
Yes. My heart rate's not elevated.
- [01:30]
Andrew Weissmann
Exactly. I'll get there. As you know, and y' all bring it down. We do have a special thing which, you know, Mary, I actually, I was describing this to someone. We rarely have guests and it's probably worth telling people what we do. We really try to find when we don't have as in depth expertise or there's something that that person has done that's really interesting. We bring them on. And it's not necessarily a name that you've ever heard of. And we really try and find a person with deep knowledge. So what's on our dance card? And who is our guest?
- [02:05]
Mary McCord
Yeah. We will start by talking about the Charlie Kirk shooting last week. A really horrible and tragic murder. Murder and the various ramifications of that. I mean, it's definitely going to be charged in state court, probably will not be charged in federal court. We'll talk about why and we'll talk a little bit about how the FBI responded to this, in particular how the director, Keshe Patel, responded to this. And we'll fold into that a lawsuit that I swore we had talked about last week because last week seems like eight years ago, but we did not talk about last week because it hadn't happened yet last week. That is the lawsuit by three extremely high level FBI agents, including one who had been the acting director for some period of time, the firing of them and their lawsuit, as well as now the lawsuit by Maureen Comey, a Prosecutor in the U.S. attorney's office in New York City. Then next, Ryan Goodman, one of your colleagues at NYU and the co editor in chief of Just Security, which is really a journalistic law forum. And this is a topic he has been talking about with the two of us for some time now as he put this together, a very lengthy amalgamation of all of the instances where in court the presumption of regularity that we have talked about on this podcast before, that has been historically accorded to the government's representations in court about how government responds to things, how government does its business, which has always been up courted, this presumption, how that has really been fraying at the seams. And how many judges have commented about this. They've either been concerned about noncompliance with court orders or factual misrepresentations or things that the government has done that are arbitrary and capricious. And we'll dig into that data with Ryan and I think it's an extremely useful resource now that's available to everyone.
- [03:57]
Andrew Weissmann
We'll put it in the show notes. This is a large document with lots of data and you can dip in and dip out of it and you can see how it was collected and it gives the background to what Ryan is going to discuss with us.
- [04:12]
Mary McCord
And then we will close out with updating people on where things stand. With respect to the Federal Reserve Board, Governor Lisa Cook, who the president is attempting to fire a district court judge enjoined that. And the D.C. circuit last night denied the government's motion to stay her injunction. And so there are meetings of the Federal Reserve Board today. And so we'll kind of update on where that stands and what the basis for those rulings are. And if we have time, and I suspect we will not, but let's just put a marker out there. The government blew up another boat yesterday out in international waters, allegedly because it was coming from Venezuela with drugs on board. We've talked before about no apparent domestic or international law authority for that. And this one seems no different. And we'll have to spend an episode.
- [04:59]
Andrew Weissmann
Absolutely.
- [05:00]
Mary McCord
Get some good guests to help us break that all down.
- [05:03]
Andrew Weissmann
It's sort of amazing because we have Ryan coming, but Ryan is an expert on international law. So it's Tess Bridgman, full disclosure. So Tess Bridgman and Ryan are co managing editors for Just Security. And again, full disclosure. Mary and I are both on the board of Justice Security. But shall we start off and talk about the Kirk assassination or murder, whatever you want to call it, it's horrendous and it is an act of violence. And this is one where Mary and I see completely eye to eye in this. We were in government precisely to hold people who do this to account, to try to prevent this. It's so hard to see this and it's difficult to see this. Politicized murder is murder. It is heinous. And it doesn't matter whether you like or dislike the person. It doesn't matter whether they're on the left, right, center. It doesn't matter. Violence is abhorrent and it's such an obvious given. So I just want to level set. That's not what we want to talk about today. It's going to be two separate issues, as Mary you flagged. One is, and I'm going to turn it over to you, Mary is like, we're going to see state charges, but why wouldn't we? Or would we see federal charges? Is there some way to see federal charges? For instance, could this be charged as terrorism? Could this in some way have some sort of federal hook? I should note that I was just reading this morning that Luigi Mancione, the alleged murderer of the UnitedHealthcare CEO, that his terror charges in New York State, and that's under New York law, were just thrown out. But we want to discuss what's next and why. And then I wanted to make sure people understood that it is appropriate to ask how did law enforcement respond here? Not as a way of criticism, but I really want to relate it to my training that came from FBI Director Mueller, which is no matter what situation, whether handled well or not well, we did an after action. Always it is just an appropriate thing for an agency to do and to be as transparent as possible about that after action. Why? Because everything can be done better and there is always something to look at. And here, God knows there are real red flags of at least potential issues. And that's something that any agency that is worth its salt owes that to the public and as I've said repeatedly owes that to Charlie Kirk and his family. But the public at large, to be as good as you can possibly be in this situation, to make sure you've handled this and that. Any missteps, you try and figure out how did it happen and how to avoid them in the future.
- [07:58]
Mary McCord
Right? Yeah. Every big case like this gets the after action. So let's talk about charges. We are expecting charges today. This is Tuesday. State law charges. Clearly, it's a murder. There are probably a number of charges based on violations of state crime under Utah law. And I think I've seen they must have something called aggravated murder there. Some of those other charges. We expect that we will see those being brought today. Those will carry the maximum penalties really available under Utah law. Certainly life in prison in Utah does have the death penalty. And whatever our views may be about that, you know, we'll see if that is something that is pursued there. But a lot of people say, well, hey, why isn't this charged federally? And certainly it would appear at least to meet the definition in the federal criminal code of domestic terrorism. That is a definition of. That includes acts dangerous to human life that are in violation of the criminal laws of the United States or of any state, and that appear to be intended to intimidate or coerce a civilian population, influence the policy of government by intimidation or coercion, or affect the conduct of government by mass destruction, assassination, or kidnapping, and occur primarily within the territorial jurisdiction of the United States. So certainly this is a case where it involves acts dangerous to human life and violation of state law. Seems like it potentially meets all three of those intents. Right. It's to intimidate or coerce based on political views. It appears at least that there would be some evidence. The evidence is still developing. But what we're starting to hear come out, and I don't want to prejudge, but appears to potentially be sort of like motivated by wanting a change in policy. Intimidate the population, intimidate government into changing its policy. Even part three, which I often don't even talk about when I talk about domestic terrorism, this, in fact, I think, could be appropriately called an assassination, which is a political murder. But that definition does not carry with it an actual criminal offense under the US Code. There are many crimes of terrorism under the US Code, but what there is not under the US Code is a crime of terrorism that involves the use of a firearm in committing the crime, unless that crime is committed at the behest of, or in an attempt to do it to further the goals of a foreign terrorist organization. Of course, there's no allegation of that here.
- [10:25]
Andrew Weissmann
Let me just make sure people follow you. So if it's something like isis, if It's a foreign actor or somebody doing it on behalf of or motivated by, inspired by a foreign actor. There is a congressional statute on the books that governs that. Obviously there are lots of requirements that have to be met. But with respect to domestic terrorism, there's a definition in the statute, but there's no actual crime.
- [10:51]
Mary McCord
That's right.
- [10:51]
Andrew Weissmann
So that's a real disparity. And by the way, I want to make sure people understand we are talking to one of the great experts on this because you have really worked on this issue and written about this issue about the difference between the domestic and foreign contexts.
- [11:06]
Mary McCord
Yeah, well, thank you for that. But I mean, it is something that's been a big issue for me for a number of years, ever since I was in the National Security Division and even before that. And there's two other times where there could be a crime of terrorism based on use of a firearm to commit the offense. But that's when the target is a US Government official or US Government property. So we don't have any of those here. So this is one of the big gaps in our terrorism statutes. And so then the question is, well, is there anything else that this might fit within federal criminal code? And you know, some people have said, well, what about hate crimes? Well, hate crimes are crimes that are committed because of race, religion, ethnicity, gender, gender orientation, but not politics. Politics is not one of those sort of like protected areas within the federal criminal code about hate crimes. Now, some people have suggested, could it be, you know, religious based. We're still early. Lots more evidence could come out. But what has come out publicly I don't think would support that there could.
- [12:07]
Andrew Weissmann
Be some firearm offense.
- [12:09]
Mary McCord
Well, that's what I was just going to say, and I've said this to other reporters like, you know, they'll be looking, did he lawfully own the weapon? Was he prohibited from owning it for any reason? I mean, there's no indication he had any prior felonies. But does he have any court orders that would make him not eligible, anything like that?
- [12:26]
Andrew Weissmann
Or did he have other firearms? There's this firearm, but there might be other farms, all of that. By the way, just to be clear, Barry and I are speculating, we're trying to flag issues that could come up, but we're not in any way suggesting that he did do them or that there's even evidence of it. But these are the kinds of things that, if we were still in government, we would be asking the agents to look at this and sort of, what's the status of the firearm that is allegedly used in the assassination or murder. And are there any others we'd be looking for sort of the full panoply of possible firearms offenses.
- [13:00]
Mary McCord
Is there anything he did in the planning of this that potentially implicates him in any other federal offense? But for the murder itself, it seems, at least based on what we know right now, unlikely. So people might say, well, if this is just a state crime, what's the FBI have to do with it at all? Right. But of course, in anything like this, and I'll kick this back to you, Andrew, you're going to have a mass response. We have joint agreements and task force between the FBI and state and local law enforcement, clearly in the terrorism sphere, joint terrorism task force, but also in so many other areas of crime. And so when something like this happens, you know, just like the killing of the Minnesota legislator or just like the attempted arson of Governor Shapiro's, just like the Steve Scalise shooting, you're always going to have FBI and state and local there.
- [13:50]
Andrew Weissmann
There are lots and lots of ways in which the feds can be involved, even when it ultimately doesn't lead to a federal crime. One is that the state can simply ask for help. Here's the most ob. The FBI has a lab in Washington. And so when you need to have forensics done, which is DNA, fingerprints, hair, whole variety of saliva, all sorts of things that are being analyzed, the FBI lab can be called upon by the state. That's sort of this idea of like the state federal partnership. Even if that doesn't happen, the feds are entitled, where there is a good faith basis to believe that there could be federal charges to investigate. In other words, a lot of times you think that there might be federal charges, and as long as you have some factual predication for that, they can be involved on their own for their own case. And as we've talked about, there are potential things that they could look at after action. So there are lots of issues here. There's the issue that Kash Patel, who I think has now said that he could have said things differently. For a lot of people listening to this, that might be putting it mildly. But, you know, when you have somebody who is being questioned, it is unusual, to say the least, for anybody at the FBI, let alone the FBI director, suggests that that is the culprit, that you have them in hand. And there are lots of reasons not to do that. One of them is that when you're wrong, you have now misled the public. And they're thinking, I don't really need to give potential evidence. Because you found the person, they can lower their guard in terms of safety and think, well, you found the person. A lot of the reasons you go public is because you want to sort of allay the concerns of the public. You want them to be careful. And so if you're telling them we found the person, it's just sort of have them, they sort of go, they can relax. So there are lots of reasons not to do it, let alone that you are disparaging their person who is actually being questioned when they're just a turns out a witness. The real issue is sort of why would you do that and jump the gun? And it appears that that may have happened not once, but twice. There also is reporting that the director was at a restaurant in New York, Rao's. There was reporting that he was there and sort of stayed there. That is an important after action issue. Did he or did he not stayed.
- [16:05]
Mary McCord
There the night of the murder? Like when there was lots and lots of things going on? Yes, exactly.
- [16:10]
Andrew Weissmann
The reporting, I think, is that at the time of his tweeting out that we have the suspect in hand. And then there is also reporting and we don't know how accurate or not, that when Cash Patel flew out to Utah for the press conference, that that delayed the press conference and thus delayed disseminating important video which was being given by law enforcement to the public, by the way. Not an unusual step. It's not Cash Patel. I know it's been taking lots of credit for it, but this was done in the Boston bombing case that, you know, I was there at the FBI for, where you. It's just like a wanted poster that you put out, but it's a newfangled version of that where you put it out there to get information from the public. Have you seen this person?
- [16:53]
Mary McCord
Can we pause there for just one minute? Because this is, I think, another issue about what was a little bit surprising about the handling of this by Director Patel. I mean, after, of course, the putting out of those still photos, making that available to the public. We know that it's been reported that the father of the suspect did say he recognized him from that. Now it's unclear whether he otherwise had other information that caused him to urge his son to turn himself in.
- [17:19]
Andrew Weissmann
I think Kash Patel said that the father recognized his son in the photos or video, but it's not clear that that was the cause and effect. In other words, as opposed to later being shown it and saying, do you recognize him? And he says, yes. So it's not clear that's what led to the reporting. But even if it is what it is, then you'd want to get it out as soon as possible.
- [17:42]
Mary McCord
Well, actually, no, I was going to say something slightly different because Keshe Patel has now criticized the state and locals saying that they essentially against all good law enforcement advice, they didn't want to put those photos out right away and it was basically taking credit for we told them they needed to put those out. And I just want to pause for a second here to make two points. One is there are good reasons why you might not put out the photo immediately. The biggest one is the person sees that his photo is out there and knows that you're looking for him. And if you have other evidence that would lead to that person, you might not want to give him that heads up that oh, we know it's you, that's you in the photo. So they at least on their side of things, the local and state officials says we wanted to run some facial technology and figure out if we could identify him before we put it out to them.
- [18:30]
Andrew Weissmann
Fair enough. Absolutely fair.
- [18:31]
Mary McCord
So that's thing one. Patel doesn't even credit that at all or say anything about that thing too is don't get in a public spat between the FBI and state and local law enforcement responding to a murder like this. The relationship between the FBI and state and locals is so important. The resolution of so many crimes depends on that good relationship and it is completely unproductive and undermining to good trustworthy law enforcement work to grandstand, criticize the state and locals who by all accounts were doing the best job that they could under the circumstances and try to take credit. It's going to make them not want to work with the FBI. It's going to embarrass FBI agents, et cetera, et cetera, et cetera.
- [19:17]
Andrew Weissmann
Totally agree. And again, if there is a dispassionate after action, that's going to happen because there was no good reason not to put out the photo sooner or the FBI should not have wanted to put it out sooner or vice versa. All of that can be dealt with in time and dispassionately. Here it reads as I'm going to do what I need to do to make the public think that I did a good job personally. And it's so it's about me and it's about me and my relationship. Perhaps at the White House.
- [19:50]
Mary McCord
I was just going to say not just the public right.
- [19:52]
Andrew Weissmann
To me that is the concern. The other thing I just that was striking to me is I don't criticize in any way the governor, and I think he's done actually an admirable job under such, such difficult circumstances. It's hard to convey to everyone just how much pressure is on you in so many ways. One of the things that was unusual is usually the FBI agent who is in charge in that area is sort of the point person is quarterbacking. And even if there is a political figure there speaking, they're really the ones that are doing this. What was notable to me was the silence of the Bureau even when the Director Patel was there and allegedly the conference was delayed to get him there again. I don't understand why that would ever happen.
- [20:43]
Mary McCord
That is a good segue to something we can come back to after the break, which is the lawsuit filed by some of the agents that were fired, agents who probably would have been pretty helpful in this investigation and others who are not part of that lawsuit, but that have also been fired or forced out, who would have had decades of terrorism experience and might have been able to be helpful, including the former lead agent in Salt Lake City, Utah. So we'll talk a little bit about that after the break and then we will welcome our guest.
- [21:12]
Andrew Weissmann
Sounds great.
- [21:22]
Stephen A. Smith
It's Stephen A. Smith here. You want sports? Sirius XM's got it all. Every game, every team, all season long. Debates, rants, hot takes and no filter whatsoever. Trust and believe. You don't want to miss what I have to say this week on the Stephen A. Smith show, only on Sirius xm.
- [21:38]
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- [22:04]
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- [22:39]
Andrew Weissmann
Welcome back. So, Mary, there's a lawsuit that the lead plaintiff is the former acting director of the FBI, Mr. Driscoll. What should we take away from that?
- [22:50]
Mary McCord
Well, there's so much and it's funny because I did mention, I think I, I think I was on Nicole Wallace's show right like the day after this was filed. And I said, you know, I rarely advise people to go read a complaint because they're usually long and dense. But you know, some of them just tell an amazing story. And this is one of those, you know, the story of these three men pulled into these very high positions and then fired. But one of the things that was remarkable is just in the vetting of Driscoll and I should say these are people with decades of terrorism experience. You know, Driscoll was involved in hostage recovery. Amazing experience. Each of them had about 20 years. So that's a combined 60 years of experience and all fired unceremoniously. But even when Driscoll was first being considered for this acting position, he had been already in a field office in the highest position there. But this was going to be to come back to headquarters as. It's kind of funny, the complaint says as the acting deputy director, but turns out he became the acting director because.
- [23:51]
Andrew Weissmann
Of a paperwork mistake at the White House.
- [23:53]
Mary McCord
Exactly. But that's what happened. And he was the acting director at first. It goes through what his interview with one of the White House vetters was like. And pretty unbelievable questions such as? I mean one totally get. How would you define the most significant threats to the United States? Yes, that is a perfectly reasonable question. What are your thoughts on the structure of the FBI? Perfectly fine question.
- [24:15]
Andrew Weissmann
Totally good question.
- [24:16]
Mary McCord
Who did you vote for?
- [24:17]
Andrew Weissmann
Not fine and wait. And what does he report? He gave as his answer to that.
- [24:22]
Mary McCord
He refused to answer. Said that was an inappropriate question with Hatch act implications. Right. That is the law that prohibits sort of political activity by those in government offices. Next question. Do you agree that the FBI agents who stormed Mar a Lago to include the rank and file should be held accountable? That seems like a pretty unusual question.
- [24:42]
Andrew Weissmann
Also, what about stormed. Yeah, Storm. This is a court authorized search warrant. That is executing a search warrant. That is how you would phrase it.
- [24:52]
Mary McCord
And no agent involved in it had ever been criticized by the judge found to have done anything wrong. In fact, to the country the opposite. Exactly. What are your thoughts on diversity, equity, inclusion? I mean, that's okay, you want to ask the question. I mean we know here because of context it's pretty loaded. But here, here's the kickers. When did you start supporting President Trump? He refused to answer. Have you voted for a Democrat in the last five elections? He refused to answer. I mean, that should kind of tell you all you really needed to know about the litmus test that's being applied over at the FBI. Now, astoundingly, he still got this position. And it seems to reading the complaint, it's because this is still before inauguration email. Beauvais did know him and apparently very much wanted him in that position and did reach out to him to say you blew it on this vetting call and I'm going to get it fixed. But after he was in office, after the others were put in various positions, they were put in. This is sort of the second big takeaway. It's such an interesting read because it seems like there are many times that Kash Patel basically said to these three people when they would be criticized by people sort of outside the FBI, I got your back. Right. I think you're doing a great job. But ultimately, and this is where you've really just got to kind of read it, all of them got fired and Cash Patel was pretty clear that he was doing that because he'd been directed to do so by the White House or by high level people at the Department of Justice and even recognized in some of his interactions that these firings and other firings were unlawful.
- [26:30]
Andrew Weissmann
Yeah. So a couple of things. One, obviously these are the allegations in a complaint.
- [26:34]
Mary McCord
That's right.
- [26:34]
Andrew Weissmann
And so we have very from the government to all three of the plaintiffs, all three of these now former FBI agents with decades of experience were given zero. There was no cause given for their firing. The government can try and come up with that and make allegations. But so far there was no process and there was no reason given. 3 and you touched on this. And I'm going to relate this back to our first segment on Mr. Kirk. These are the people you want. Why are you getting rid of people with this kind of experience? I mean, having worked at the Bureau, it's true. At the Department of Justice writ large, it's true in any agency. You want people with that experience. And so you have to ask yourself why are you doing this when it's not for cause, if there's no reason other than they're going to stand up for what their oath of office, they're going to not just follow blindly orders that are improper. That's what it reads like. That's what you sort of read this complaint. And that's sort of the take home here and Then the final thing on a human level is that one of the senior people was fighting for Mr. Giordino, the third plaintiff, and saying, this is just unspeakably cruel to do this now. His wife was dying of cancer and then did die of cancer at the time that this was happening and that he was being fired. And the agents were saying, please, please just hold off. Don't do this now. And he was still fired. Again, these are the allegations. But if true, ask yourself, this is on a human level, who is that person who takes that action in those circumstances? Again, I want to make sure people understand. Every single person I have ever worked for, I cannot imagine nothing to do with party, nothing to do with politics. This is just on a human level. At the same moment that he has lost his wife, he is fired without cause.
- [28:36]
Mary McCord
Yeah. And, you know, one of the. There are a number of different causes of action. One is that lack of any kind of due process. And another is a First Amendment retaliation claim based on the perceived political affiliation of these three men. Now, Mr. Jardine is not a plaintiff in this case, but he is one of the people who was fired, and there were many others fired. And in fact, we mentioned earlier that the former special agent in charge of the Salt Lake City, Utah office, with many years of experience in terrorism, was not actually fired, but basically going to be demoted and have to go to a different office in a very different situation, really kind of forced out. And that's a lot of experience lost. This is also very similar to the case filed just, I think, yesterday by Maureen Comey, an assistant United States Attorney, frankly, making a lot of the same arguments. Remember, she had been on the team that brought the case against Jeffrey Epstein in New York. She was part of the team that brought the case against Ghislaine Maxwell, as well as many other cases that she was involved in there, and then, with no advance notice or opportunity to respond, was fired. And she also has a due process cause of action and a cause of action about retaliation for perceived political affiliation. So we'll see what the government says in response to these. I mean, you made such an important point that I had not emphasized that these are allegations. Right? These are allegations. I suspect the government will not agree with all of them, but this is all things that, you know, we're seeing more and more. In fact, Mr. Giardino, you know, was interviewed for the New York Times, and another agent, Chris Meyer, who also had been fired, you know, they're talking about how they had always been told they would never be retaliated against for doing their jobs, for doing the cases that they were assigned to do, and then they've been fired. So should we switch now to our special guest?
- [30:28]
Andrew Weissmann
It's our pleasure to have Professor Ryan Goodman from NYU School of Law. He is also the founding co editor in chief of Just Security, as we noted at the outset, and he also served as special counsel to the general counsel of the Department of Defense today. You're here because Just Security put out a piece that you helmed. I know there are lots of other people who participated, but it's a really wonderful piece about the presumption of regularity during the second Trump administration. And we wanted, we had lots of questions for you, and we're going to pepper you with them. But maybe the first thing to talk about is, before we sort of get into the nuts and bolts of it, what is the presumption of regularity?
- [31:15]
Ryan Goodman
Depends on who you ask.
- [31:18]
Andrew Weissmann
Well, guess what?
- [31:18]
Mary McCord
We're actually, we've all debated this. We've had podcasts called the end of the Presumption of Regularity.
- [31:25]
Ryan Goodman
Yeah. So the presumption of regularity is a judicially created doctrine. So it's a bit of an artificial idea that goes back at least a hundred years, and some might put it back to about 200. And it basically is a strong benefit of the doubt is one way of thinking of it, that is given to the government, and only the government in litigation, and no other litigant has this benefit of the doubt. And it basically means that the courts at certain decision points will just presume that the government is providing truthful information, that they went through the regular processes within the administration, that they're abiding by their duties of office in making representations and conducting fact finding and things like that before they make particular statements or positions. So the idea is that there's this large benefit of the doubt given to the government so that you can't look behind or try to tear behind the facial statement by the government to see or discover or do fact finding or other kinds of information as to whether or not their representation is truthful. It's just that they give them this very large benefit of the doubt. And according to some courts, that can only be rebutted by, quote, unquote, clear evidence. And clear evidence meaning something that's way higher than more likely than not, something that's higher than the preponderance standard of 51%. And so that's the general idea. And then the way it can operate is in discovery, a plaintiff might not even get to discovery because the government is given this presumption of regularity as a form of deference. And it derives originally from a World War I case in which the U.S. supreme Court basically said that there's this presumption that when a US Official was giving away patents that he had to have considered all of the circumstances under which he was operating when he did that. So there was a presumption of regularity. And the paradox here is that actually counted against the government in that instance because the government is actually trying to get out of the deal. So that's why it has this weird history. And then it's expanded into other areas like selective prosecution, which you guys have discussed a lot on the show, and how much a defendant even able to get over the hump of saying they're selective prosecution. Because there's this large benefit of the doubt that Donald J. Trump himself learned because he tried to fight against the presumption with Jack Smith arguing that he himself was a victim of selective prosecution. And what does Jack Smith do but say no presumption of regularity? And that's what the courts do as well.
- [33:48]
Mary McCord
So it seems like you got it in two places, right? You've got a presumption that the government will follow like sort of the law and the processes that it is expected to follow as a part of any individual government officials responsibilities and duties. Right. So there in that example was you considered the appropriate factors when, you know, giving out these patents. Right. And then there's the other piece which I think is probably more of an expansion, right. Which is that the judges tend to trust the government attorney standing in front of them in court when that government attorney makes a representation about the facts. And it seems to me that your lengthy compilation of judges questioning and saying the presumption of regularity has been damaged or in some places is just gone, is because of problems with both of those prongs, Right. The representations in court. And like any benefit of the doubt that the government official followed prescribed statutory or regulatory processes or constitutional requirements. Is that fair?
- [34:52]
Ryan Goodman
Yes, absolutely. And that's why what our study was trying to do is get underneath both of those prongs, or one might think of them as the conditions that provide support for the presumption and see whether or not the government is actually following regular procedures and is actually making factually accurate representations to courts.
- [35:11]
Andrew Weissmann
I wanted to make sure people understood that one of the. Because some people might be asking, well, why should there be a presumption on one side or the other, which is a totally fair question and one of the reasons is when you are a defense lawyer, you have an obligation to the court as an officer of the court, but you have to zealously advocate for your client. That is your legal obligation. You have two clients. When you are essentially the government, you are not there just to make the best case for your position. You have an obligation to the facts and the law and the truth. And so very often when the court turns to the government lawyer and says, well, what actually is happening here? You may find yourself presenting facts and saying things that are not helpful to your case, because that is what the facts are. And then you can say, well, you still believe you're right, but you have this extra duty to do right, to do justice. It's not to win the case.
- [36:13]
Mary McCord
Right.
- [36:13]
Andrew Weissmann
And, Mary, you and I have been in court where, you know, that's what the court's expecting, and you have to meet that. So I think that's part of the reason.
- [36:22]
Ryan Goodman
Yeah.
- [36:22]
Mary McCord
And for DOJ attorneys, they're repeat players in front of the court. Right. And so I used to felt like, you know, the most important thing that I had to offer was my integrity and judgment and candor to the court. And I wanted each judge I was ever in front of to be able to look at me and say, whatever it is that Mary McCord is going to say to me, I can take it to the bank that it's to the best of her knowledge it's true and it's accurate. He might not like my argument on a legal argument or something, but, like, factually, I'm going to, you know, been candid with the court. And that includes, like Andrew, you pointed out pointing out bad facts or pointing out bad law. And, you know, other attorneys appear in court repeatedly, too, but government attorneys, particularly at the U.S. attorney's office, I mean, you're in court every day. These judges know you, and you can make or break your reputation by one time of not being candid. So it's taken very seriously. But what have you found when you've looked like. Let's talk about the three sort of categories of things that your study found, Ryan.
- [37:19]
Ryan Goodman
Yeah, so we basically first identify that there are a number of judges that are thinking and saying explicitly that maybe this presumption of regularity has been forfeited, in the words of Judge Paul Friedman, by this administration within a short period of months. And the reason for it is that under these different categories, this is not a judgment call. It's what the courts themselves have said. So what we're tracking is out of the 400 plus cases that involve the Trump administration, first, every time courts have in fact said that the government is not in compliance with the court orders, which goes to the heart of the presumption in terms of the government official having, quote, unquote, properly discharged their official duties. That is the language of the presumption. So they're obviously not properly discharging their official duties if they can't abide by the fundamental duty of abiding by court orders. And so we track every case in which a court has actually said the government is in violation of the court orders. And to me, the number is astounding. It's 16 cases in which a court has actually said the government is in violation. When I say they say that, I mean, you know, you've got judges saying things like, quote, unquote, flagrant violation. And that's Judge Murphy. He said, I can't reach another conclusion. I think he was actually trying to reach a different conclusion. He didn't want to say it. Another judge McElroy, she's a Trump appointee. She says blatant disregard for her orders. Another Trump appointee, Stephanie Gallagher, says that the DOJ has given no justification for its clear lack of effort to comply, period. End quote. And then of course, Judge Boasberg and Judge Sinis have said that the government has engaged in bad faith and willful disobedience of their orders. So that's within the 16. And these are just extraordinary. You know, we were all thinking, I think around January 20th, would this administration defy court orders? There are 16 of these.
- [39:05]
Andrew Weissmann
Okay, and this is bucket one. And we're going to turn to the other buckets. But before we do, maybe my question for Ryan and for Mary, I mean, I think I, I mean, I, I do know the answer. But how unusual is this? In other words, one question that people who are listening could say is, well, I mean, hasn't this happened before? And I don't mean in, in the Trump first administration, but hasn't this happened in the Obama administration or the Biden administration? In other words, how unusual is it? You know, you just are looking at the Trump 2 administration and the nine months that he has been in office. So that's that period of time. And you found 16. But is that an unusual statistic or is that something that you would expect to see if you looked further for other administrations?
- [39:52]
Ryan Goodman
So the way I think of this one, and we can talk about it for the other categories, I cannot think of flagrant non compliance in violation of a judge's order. The one case that comes up that people talk about in history is a judge ordering a cessation of bombing in the Cambodian war. And that one's even disputed. We published something recently by Burt Newborn who said that it's being misunderstood. He was the ACLU lawyer at the time. And in fact, the DoD had prepared to comply with the judge's order because some people think that the DoD did not. There was an initial order and it went up to the Supreme Court. And even on the other side of the equation, those who think that DoD did not comply with the court order, it was for a matter of hours.
- [40:36]
Andrew Weissmann
Isn't that decades ago?
- [40:38]
Ryan Goodman
Decades ago in a war. Yep.
- [40:41]
Andrew Weissmann
So I just want to make sure people understand this, and Mary and I have talked about this in this podcast, but this would be beyond mortifying when you are the government. I just want to make clear this is true for all stripes of people, the Department of Justice. So it is not political. You are not trained to violate the law or to get close to that. You can re argue, you can appeal. You could be wrong. I'm not saying there aren't errant problems, but it's just not how you behave.
- [41:13]
Mary McCord
And there might be times when, you know, is the DOJ attorney, your client, the government agency, has made some mistakes in compliance or maybe hasn't moved fast enough and those kind of things. But what we're seeing here is really pretty extraordinary, particularly when you think this is just since January 20 till September, you know, such a short period of time. So that's one category. Let's talk about the other categories that you looked at for your study.
- [41:36]
Ryan Goodman
So the second category is the one that you had highlighted before, Mary, which is this is courts saying that they are deeply concerned about the government having given them false information and misrepresentations. And it's what the courts are saying. It's not us interpreting whether or not the government gave them false information or not. And so those are cases in which, in the words of Reagan appointee Judge Lamberth, he said in his case the government was quote, unquote, flip flopping in its sworn declarations, raising severe concerns. That's one quote. Another one was a case in which a judge said that the affidavit that was given in a Trend Naragua case saying that the individual was a senior Trinidad member. The judge said that it was the sorriest statement she's ever seen. A terrible comma, terrible affidavit, end quote. And then the next sentence is something very close to this. If we were in a criminal context and you gave that to me as a warrant, I would have, quote, unquote, thrown you out of my chambers, end quote. Another judge saying also because the government had entered a declaration that was proven totally false and they had to then have the same official enter a new declaration, the judge said that it was so disingenuous that they have little, quote, unquote, little confidence that the government can be trusted to tell the truth about anything, end quote.
- [42:59]
Mary McCord
It's devastating.
- [43:01]
Ryan Goodman
Yeah. And the judges are also at different intervals, matching that up actually to the presumption, saying, I can't give you good faith. I cannot give you the presumption because of this.
- [43:10]
Andrew Weissmann
Mary, this may be a good time to recount the what the government did. We in the last episode were talking about the Guatemala case and what happened over the weekend. And the case was then heard before the judge, not the temporary judge who was handling it over the weekend. But I believe it was Judge Kelly in D.C. why don't you recount what the government's new factual position was? Because it's shocking and it fits entirely with what Ryan is talking about.
- [43:39]
Mary McCord
Yep. And it's included in Ryan's report. So this case and just full disclosure, my day job, icap. We are now co counsel, along with wonderful attorneys at National Immigration Law center and National Youth Law center in representing the unaccompanied minor Guatemalan children that the government attempted to remove from the country and send back to Guatemala in the middle of the night on a Saturday night into Sunday morning of Labor Day weekend. And that resulted in a temporary restraining order being issued by the emergency judge. We were this week in court in front of Judge Kelly, who has the case permanently, arguing for the preliminary injunction and also arguing to expand this beyond just Guatemalan children. And the first thing that Judge Kelly asked the government attorney when she stood up to argue, and I'm going to just read it from the transcript, he says. So first just some questions on kind of facts to the extent the government can represent them. So I was struck in reviewing in how the government's representations as to the subgroup of children who were planned to be sent to Guatemala over Labor Day weekend. I was struck by the government's representations, how they seem to have evolved with respect to their parents. I think the original representation to Judge Sukhnanan was that for all the kids that were anticipated being put on planes over Labor Day weekend, that they had parents in Guatemala who had requested them. And now I have before me in the record this report from the Guatemalan Attorney General describing how few parents they were even able to locate, a huge chunk of the parents they weren't able to find. And then certainly with respect to whether the parents had requested the child to come back, I think it was basically none of them had requested that. So I guess my first question is, do you all contest what the report lays out? And if you don't, has the report altered what the government plans to do with respect to the kids? And then he ultimately says, do you withdraw that representation that you made to Judge Sukhnanan on Labor Day weekend? And the government attorney had to say that she could not contest what was in the Guatemalan Attorney General's report, nor could she affirmatively represent that the facts that were represented to the court on Labor Day weekend were correct. And she says, so I think you can treat that as withdrawn at that point. And remember, these facts were important to Judge Suknon because the government not only on three different times Labor Day weekend represented that the attorney, in fairness to him, it was his understanding, based on what he's getting from somebody else, that all of the parents had requested that their children be returned. And he actually criticized the plaintiffs representing the children for interfering with reuniting these families. And that just turns out was false.
- [46:28]
Andrew Weissmann
So somewhere somebody is either lying or cavalierly dealing with the facts. And so somebody needs to figure out what the hell happened. I mean, this is just a critical fact represented to a court and just in a matter of days after they're caught by plaintiff's counsel says, oh, yeah, never mind, this isn't a never mind. Again, I'm not saying it's the lawyer who stood up and court that's lying, but somebody represented to that lawyer the facts that they then represented to the court. So, like, who said that? Who made that representation that this is what's going on? Because now we know that was wrong. Now, it could be a mistake, but an egregious one. But this is one where any sort of respectable Department of Justice would have an after action and would be looking at this to be like, this is unacceptable for the Department of Justice to be going into court and saying this. And again, this goes to the question I had for Ryan about how unusual is this? Extremely. So, Ryan, what's the third bucket?
- [47:37]
Ryan Goodman
Can I just say one other thing about that?
- [47:39]
Andrew Weissmann
Yeah.
- [47:39]
Ryan Goodman
This is a pattern. I'll give another example of that. One of the other cases, it's a little bit of a sleeper case. Guatemalan man was sent to Mexico and he allegedly wasn't given an opportunity to Say that he be at risk of torture. There's a government affidavit that says, no, no, no. We gave him that opportunity and he said he wasn't. That's in their affidavit. So then plaintiffs get discovery. They're about to sit this person down for a deposition. The night before the deposition, I'm pretty sure it's the night before the government says, so sorry, can't find a person who'll attest to that. In fact, we need to do a correction to our affidavit. The person who swore to that was just basing it on what they saw in the database. A box was checked off. They have no idea. And the judges. I read Judge Murphy, he says, quote, the court was given false information upon which it relied twice to the detriment of a party at risk of serious and irreparable harm. So something's going on. So the third category of behavior we thought would be very relevant is simply the question of this other prong or condition for supporting the presumption. Is the government engaging in regular procedures for making administrative decisions? And what is the opposite of a kind of a regular or a rational procedure, one that the law calls, quote, unquote, arbitrary and capricious? So we decided to look at every single time that a court has found the government engaged in, quote, unquote, arbitrary and capricious conduct or is likely to have engaged in arbitrary and capricious conduct, therefore holding in favor of the plaintiff. And I was astounded to find the number is more than 50 times in this several month period. More than 50 times. Once again, I mean, that's an instance in which I can't imagine any administration has ever escaped without finding that they've engaged in arbitrary, capricious conduct occasionally, but.
- [49:19]
Mary McCord
Not this many times. Not like this.
- [49:21]
Ryan Goodman
It's inconceivable. You can't even. It's not even, like, worth looking at it on a bar graph. It's just. It's. There's no comparison.
- [49:27]
Mary McCord
So the damage. Right. I mean, this will be something we'll be talking about for some time. The damage to the reputation of the Department of Justice, I think, is already, at this point, almost immeasurable. And it's going to take quite a long time to recover from that. And then the damage to this presumption that the government has relied on for decades and decades, it's going to take a long time, if ever, to recover from that.
- [49:52]
Andrew Weissmann
I guess the final point and the reason I just want to commend you, Ryan, for doing this and having this compendium at this inflection point is pulling the camera back a little bit further. That presumption when the courts use it and when it's accorded to the government without it being supported factually and justified hurts people. It hurts their rights. This is something that has a real life consequence. It is not just that it dreads the reputation of the Department of Justice. People are hurt by this. It has a real life consequence in court when judges accord a presumption which you don't deserve. And so it's very, very useful to have you pulling this together so that people can see this not as anecdotal things, but can see the big picture and can see, as you said so rightly, see the pattern from this kind of conduct.
- [50:52]
Mary McCord
Ryan, thank you so much for joining us. Really, really appreciate it and breaking it all down for us and for our listeners. And I hope everyone will take a look at the piece. One question for you. I Do you intend to keep adding to it?
- [51:04]
Ryan Goodman
So many people have asked us to, so we have to.
- [51:08]
Mary McCord
Yes, your readers demand it.
- [51:09]
Ryan Goodman
It'll become a tracker.
- [51:10]
Andrew Weissmann
Okay. Well, we'll have you back.
- [51:13]
Ryan Goodman
Thank you so much for the opportunity. Great to always have a conversation with you.
- [51:15]
Andrew Weissmann
Thank you so much for joining us.
- [51:17]
Mary McCord
After the break we'll come back, we'll talk a little bit more about the litigation over the firing of Lisa Cook.
- [51:23]
Andrew Weissmann
Sounds good.
- [51:27]
Mary McCord
Foreign.
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Andrew Weissmann
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- [52:44]
Andrew Weissmann
Welcome back. Let's talk about Lisa Cook. And I'm going to give you my frame, Mary, because you and I have spent a lot of time talking about Youngstown and Justice Jackson, the concurrence. And when I think about Youngstown, it is a case about the three branches of government. As Justice Jackson said, the way that the framers have set up our government is that we diffuse power to preserve liberty, that no one branch has unilateral power to do whatever it wants in all circumstances, and that that friction of the three branches is something that assures that we won't have authoritarianism. That is sort of in many ways at the core of a lot of these lawsuits, whether it's Maureen Comey, the Driscoll suit. It is part of the lawsuit with Lisa Cook, the Federal Reserve, which has factual issues and legal issues. But to me, that's the big picture. Thinking about this in terms of the Supreme Court, will it say and when will it say under what circumstances will it say, no, the president does not have the power to do this here? One of the main claims for Lisa Cook is not just factually saying there's no cause here, I didn't do anything wrong, but it's the President doesn't have the power here. Congress has created this agency. It has said that you have to do it for cause. And the President's claim that he doesn't need cause or that cause can be so pretextual is something that is not constant with this separation of powers and the idea that there is limited government on all sides. The court can't do whatever it wants, Congress can't do whatever it wants and the President can't. That to me is sort of the frame here is thinking about it not just in terms of her individual factual claim with which there are substantial issues, but thinking about what it is saying, big picture about our government.
- [54:41]
Mary McCord
That's absolutely right. And you know, listeners will know in most of these removal cases so far, even where lower court judges have found that whether it was removal without cause or removal with cause, single member heads of independent agencies, members of multi member heads of agencies, even where the lower courts have enjoined those removals, the Supreme Court has stayed all of them so far, with one exception early on that then got changed momentarily after that. But they did themselves drop a little marker in the case involving a member of the NLRB saying the Federal Reserve might be different. Right. Because of so many reasons, we don't have time to get into now built into Congress's statutory creation of it built into the way the 14 year terms, dismissal only for cause built into all of that and its impact on monetary policy, which should not be politicized, was very important to Congress. So the Supreme Court has already kind of given this little indication that even though the President has a lot of power as the head of the executive to fire principal officers and to fire heads of independent agencies, they've left a little wiggle room on the Federal Reserve Board. And I think that that's what we're going to ultimately see them have to decide. Suffice to say for now, the district court judge enjoined the firing, said cause had to be something that happened before the person was on the Federal Reserve Board. And whatever may have happened with these mortgages, that's not what for cause means. And also that even irrespective of that, she was given no due process at all, no opportunity to contest these factual assertions, which actually what's supposedly a misrepresentation about a second mortgage being a second primary residence. There's at least factual reporting that paperwork says no, she said it was a vacation residence, which would mean there's no there there. But putting that all aside, the judge says there was no due process. This of course, immediately went up to the D.C. circuit. The government wanted a stay of that injunction and they wanted that stay before because the Federal Reserve Board of Governors is meeting today. And so they had asked the D.C. circuit for a ruling by last night and the D.C. circuit complied and in a 2 to 1 ruling said we're not going to stay this. They didn't get into this decision about what for cause means, whether it could mean things you did before you were a member or after. They said the lack of due process here was enough to say that Lisa Cook had a likelihood of success here and would be irreparably harmed without this injunction. Judge Katzis dissented, making a very plenary argument for the power of the President. And this will not be the end of this issue. This will eventually get up to the Supreme Court.
- [57:22]
Andrew Weissmann
Yeah, it'll be interesting to see whether the government tries to go immediately to the Supreme Court to deal with this. As you said, Mary, they have been very much siding with the government and his ability to remove people here. There's both a legal argument they would make and there's also this factual argument. There is a dissent from Judge Katzis which basically says the status quo should be that she's removed as opposed to the status quo should be that she's remains on it's not an attractive position for the government because of this lack of due process. And that is something that the courts at least heretofore had been sort of concerned about giving notice. Just to relate it back to the Maureen Comey case, there we're talking about a career person who was removed without cause. And so there the position of the government has to be civil service rules that govern a career person, because people might be saying, why is it different for Lisa Cook? And with a career person, there's actually a congressional statute that makes it absolutely clear that you have all of these rights as a career person and you're entitled to due process and the civil service rules. And the government's position appears to be that we can eradicate all of these civil service rules. So this tension between presidential power and congressional power is, I mean, there are many, many lawsuits like hers. So she's just the latest in that. Yes, but in a small case, it is so representative of a big, big issue in our government, which is will we live under a system of checks and balances? And it is for this Supreme Court to do that. And I'm going to paraphrase Justice Jackson and his concurrence in Youngstown, which is it is the obligation of the court to be the first person, the first institution to defend that, not the last one. He basically ends with this sort of creed occur, saying maybe all of this is for naught, but that all of these institutions might eventually disappear, but it's the job of the Supreme Court to be the last man standing.
- [59:34]
Mary McCord
Well, I can't think of anything really good to say after that because that's the perfect ending.
- [59:40]
Andrew Weissmann
Well, thank you Mary and thank you listeners. And thank you to Ryan Goodman for giving us so much to think about and his time. Remember, you can subscribe to MSNBC Premium on Apple Podcasts and you can get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content.
- [60:03]
Mary McCord
This podcast is produced by Vicki Virgolina with production support from Franny Kelly. Our associate producers are Iggy Monda and Rana Shabazzi and our intern is Colette Holcomb. Bob Mallory is our audio engineer and Bryson Barnes is the head of audio production. Aisha Turner is the executive producer for MSNBC Audio.
- [60:23]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and follow the series.
- [60:43]
Stephen A. Smith
It's Stephen A. Smith here. You want sports? SiriusXM's got it all. Every game, every team, all season long. Debates, rants, hot takes and no filter whatsoever. Trust and believe you don't want to miss what I have to say. This week on the Stephen A. Smith show, only on SiriusXM.