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Main Justice
Shifting the Overton Window
00:52:12
Strong reactions to what was—and wasn’t released in the DOJ’s Epstein file dump. Plus: A three-judge panel says troops can temporarily remain in DC.
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- [01:03]
A
Hello and welcome back to Main Justice. It is Monday morning, December 22nd. I am Andrew Woisman and I'm here with my co host, Mary McCord. Hi Mary.
- [01:15]
C
Good morning, Andrew. How are you today this holiday week?
- [01:18]
A
You know, it's December 22nd and I've been thinking a lot because we may not have a show next week depending on whether there's news or not. And so because of that, I've been thinking a lot about this last last year and it has definitely made me reflect on sort of where we are and what might be coming up. It's hard to not view it as almost a full year, 11 months under the Trump administration, 2.0.
- [01:46]
C
But you know, even before January 20th, even everything after the election, we were already like thinking through, I mean, first in terms of the podcast, we were thinking through, well, this is probably the end of the prosecution, so where do we go from here? And then just in terms of everything else, you know, there was that preparing already for day one. And as our listeners know, lots of litigators, including my organization, ICAP, were ready and filed lawsuits within 24 hours of things like the attempted rescission of birthright citizenship. So, you know, I was thinking the same thing this morning, Andrew. Well, January 20th, it'll be a year. And I thought actually it's been a year that we've been already kind of like absorbed with what this administration would do and did do and has done and is continuing to do in Terms.
- [02:37]
A
Of those litigations, and ICAP being one of the many terrific organizations, there have been over 500 lawsuits. We always are pitching just security, but you can go to just security and get their litigation tracker and a running tally, and it's put together by category of types of things. But I'm a little concerned that when the goalposts change so much that we sort of normalize bad behavior and that we sort of forget to go back to zero. It's a little bit like the psychology of bidding at an auction where you set a number and it changes how people think about something. That's sort of the new norm, and they sort of react off of that. That's the whole psychology of that. And I feel like people call it like the Overton window. There's a million different ways people have her expressing that. But I always feel like to try to remember to go back to basics and norms, because I feel like we have this real concern about sliding towards autocracy, but even internally internalizing those things and being accused of being naive when we do go back to that, because especially when we both cover the news, you sort of COVID the extremes the administration goes to.
- [03:59]
C
Yeah.
- [04:00]
A
I guess what I'm really worried about in 2026 is what are we going to do to maintain where we are and not lose that sense of center?
- [04:12]
C
I definitely think you're right to be concerned about that. I mean, you also see, I think, increasingly sort of the lack of civility, which has really been building up over years now, not just in this last year. And you start to see it kind of coming from more people. Right. The coarseness in language, the attacks, and then even the tit for tat in certain areas. Right. Like redistricting, the push for Texas to redistrict met by the California decision to also redistrict. And I'm not casting blame, but it's like we shouldn't be in this position now. Right. Where one, you know, I hate using the word side, but one side, you know, does a thing and the other says, well, we need to match that thing. Because as you just mentioned, that moving of the Overton window, that moving of our sense of what's normal, I think those kind of things really do shift that. And so, you know, things were not perfect before this administration. Things were not perfect before the first Trump administration. So there's certainly not just some normalcy to get back to, but also improvement. You know, the American experiment is constantly, well, I should hope, striving to improve. And we had already a lot of work to do. But I'd like to be to the point of working on the improvements and the rebuilding and stopping putting out the fires. I'm ready for the fire to be out. I think that's my bottom line here. And it is not out yet.
- [05:34]
A
Well, you know, we'll get to turn to our episode for a second. But one thing as you know, Mary, and I think as I mentioned, I've been working on this book. I'm in the page proof stage, but it is really trying to look forward is thinking about how to rebuild. I'm not going to give away sort of what it is, but it is thinking about that future world and what we can do. And it's not really get back to normal. It's what we can do to create better structures and barriers to prevent where we are reoccurring. Yeah.
- [06:07]
C
Yep.
- [06:07]
A
With that, Mary, there actually is a fair amount to cover, but we thought we'd take a moment to talk to people about where we've been and why, what we're sort of worrying about. But let me go to our normal thing, which is what is on our dance card.
- [06:21]
C
Yeah. So we gotta start where the news is. We don't always do that, but it would seem very odd if we didn't. And we will talk a little bit about the release of the Epstein files. Some of the criticisms of the level of redactions and the fact that all of the files were not released by the deadline set by law passed by Congress and signed into the law by the president. What are the options right for responding to that and maybe some takeaways from things that we saw. And I will tell you, I've not read every page or looked at every page, but I have noted a few things that I think are of interest. We'll then move on to kind of update on the prosecutions of the Department of Justice. Now the appeal of the dismissal of the James and Comey cases after multiple efforts to re indict Letitia James did not work. We will talk about the trial that concluded with a guilty verdict of Judge Hannah Dugan, a Wisconsin state court judge, last week and some of the issues related to that. And we'll mention very briefly, I think a really interesting filing by the Department of Justice in a civil case that essentially says it is okay for the government to make decisions about grants based on whether a state is a blue state or a red state. I've never seen the United States Department of Justice say that before. And finally we will talk about the DC Circuit motions panel staying an injunction of the national guard deployment in D.C. and we can talk about why D.C. is different. It's so different than deployments in states. And that decision was a unanimous now, granted, it's a preliminary decision on a motion to stay, but still, it resulted in a written opinion. So it's worth spending a little time on. But shall we dig in?
- [08:04]
A
Yeah. So I will give you my quick take turning to Jeffrey Epstein, because, you know, in many ways there's so much to talk about because of the lawlessness of it. But I think going back to my point about norms, here's a norm. What should have happened in a normal world if you had nothing to hide is either the White House or the Department of Justice would have said, we have turned over all documents, including images of the President of the United States that we are aware of in any of the files, and that did not happen. There has been very little transparency about what has happened, the process that was undertaken, what they are keeping redacted and not turning over and what they are turning over, as Ryan Goodman has pointed out in one of his social media posts, they seem to be suggesting that the Privacy act may allow them to not comply with the congressional statute here that gives them broader authority to withhold things. And we don't know if they're using that to withhold things about the president or anyone else for that matter. So I just wanted to go back to the norm, which is that all of that is what should have happened, and instead what happened was a violation of law from, as something you have pointed out, Mary, an administration that started by saying we're violating the TikTok ban. And here you have a congressional statute just to take us back to January 20th. And now you had Todd Blanch on air saying, we're going to be producing more later, but there was a deadline that came and went.
- [09:47]
C
Yes, there was. And just so people understand, like you talked about norms. But I will say this is a very abnormal situation that we have Congress passing a law forcing the disclosure of files related to criminal investigations in full and basically saying, and this is why I think there might be a problem with this invocation of the Privacy act, basically saying, nothing else matters. Right. So the reason that Judges Engelmeier and Berman in New York agreed that the government could release grand jury files which are normally protected by federal rule of Criminal Procedure 6e, is because the judges ruled that the Epstein Files Transparency act, the congressionally passed statute, supersedes that. Right. It was passed afterwards. And it's saying release everything. So I think there's also to the extent that there are typical privileges that are not constitutional privileges, but more sort of like developed over time type of privileges, those are things also that Congress is saying no to that and it's really pretty remarkable the scope of what the act requires, right? All the things you might imagine, but then also things like internal DOJ communications, including emails, memos, meeting notes concerning decisions to charge or not charge, investigate or decline to investigate Epstein or his associates, those type of internal communications. You and I have talked before about prosecution memos. Anytime you were working up a case, you would work up a prosecution memo. And it has everything. It has your analysis of the evidence, the weaknesses of the evidence, your analysis of the law, any vulnerabilities opposed by the law, any exculpatory information, any impeaching information, just, you know, all the witnesses, like so many things that are normally protected. But this is one of the things that I think is so amazing about this and other things that are required are any immunity deals, any non prosecution agreements, plea bargains, sealed settlements, right? All to come out. And Congress was clear. No record shall be withheld, delayed or redacted on the basis of embarrassment, reputational harm or political sensitivity, including to any government official, public figure or foreign dignitary. Now, they are allowed to have redactions for identifying information related to victims of Jeffrey Epstein's abuses and to active federal investigations or ongoing prosecutions. But it does seem that some of the redactions are greater than that. Now, one of the things that I haven't heard a lot of people talk about on air, although admittedly it's not like I've heard everything that that's been said, is that there is a requirement that all redactions must be accompanied by a written justification published in the Federal Register and submitted to Congress. Now, I don't know if they've done any of that yet, but they will be required to do that. So here's a question. Like you said, they've already missed the deadline. I'm not too shocked because the volume is really huge. I know that a huge number of attorneys over at Main justice, including my old division, the National Security Division, have been sort of like pulled off of their normal jobs to review the documents, the photos, the other materials in these files for, you know, what should be classified, what should be redacted. So I'm not too surprised that they fell short of that deadline on time. But the level of redactions are a whole nother thing. And so what are Congress's options here?
- [13:15]
A
Well, I'm going to answer that. But let me first say, going back to my dog with a bone norm issue, which is Todd Blanche, when he was on Fox News said, I just want to make sure everyone understands that the president of the United States for years has wanted to make everything public. So let's assume that he couldn't do that until January 20th when he was president. Again, this idea, well, it takes a lot of time. It takes a lot of time if you only started doing it once Congress forced you, but if you actually started doing this on January 20, it would have been done. So that's a long way of me saying I'm not sure his statement was in my view, let's say tethered to the facts, just to use the Karen Immerse. The judge in Portland. Yes, exactly. But anyway, what are Congress's options? You know, it's sort of few and far between in some ways and not in others. Obviously, they can have hearings, they can pass new laws.
- [14:15]
C
They have real options. Yeah.
- [14:16]
A
They have impeachment. You know what they have that I don't think they have used enough because obviously they could go to court. But it's a very complicated, long process. It's not like grand jury litigation on the criminal side, which Mary, you and I are used to, and especially in New York, that could go very, very, very quickly. They could use the power of the purse. You know, the executive branch needs money.
- [14:39]
C
Like they're using with Hegseth right now, right?
- [14:41]
A
Yes, exactly.
- [14:43]
C
You know, on the bill funding the Defense Department.
- [14:45]
A
Yes. And so the executive branch uses the power of the purse all the time to try and browbeat private actors to do things. Well, the Congress has the power of the purse with respect to the executive branch, and they can use that and not just say, you know, we have very limited options. They also can hold up nominations, which is another time honored thing. So they do have a lot of levers they can pull.
- [15:11]
C
They're talking about contempt. Right. A contempt proceeding against the attorney general.
- [15:15]
A
It takes a while, but and also one thing to remember is criminal contempt is a five.
- [15:20]
C
Who's going to prosecute that?
- [15:22]
A
Yes, except it's a five year statute that takes you. I don't usually do math, but five years takes you to the next administration. So, you know, obviously the president can give pardons to get rid of that, but it's remarkable when you're dealing with the Department of Justice that by all accounts appears to be flatly in violation of the law.
- [15:41]
C
Yeah. So I think we're going to have a lot more clarity in the next couple of weeks. I mean, some of the weird things that happened, like documents went up, then they disappeared and then they came back online. Like, you know, we'll see what happens in these next couple of weeks as more files get uploaded. And what's the level of redactions and are there any changes to those redactions? And what kind of pressure will, I should say, bipartisan members of Congress put on the administration and what action will they take? Substantively, I don't think to me there's the two things that are most interesting substantively about what I've seen really don't have much to do with high profile, sort of famous people who appear in photos. You have to wonder about their selectivity and what photos they've released. Number of photos of Bill Clinton, but also Michael Jackson and Walter Cronkite and, and all Steve Bannon, like, you know, a whole number of sort of like high profile individuals that are in these photos, but nothing damning as to any of them. Nothing that suggests that any of them were actually committing crimes. What I found more interesting substantively were two things. One is the report from the 1990s, I think 1995.
- [16:57]
A
Yes.
- [16:58]
C
By Maria Farmer, who back in 1995 reported to the FBI that she was a professional. I'm reading from the report. She's a professional artist, had taken pictures of her sisters, 12 and 16 years for her own personal artwork. Epstein stole the photos and negatives and is believed to have sold the pictures to potential buyers. Epstein at one time requested. And then it's redacted. I think it's her name, Maria Farmer, to take pictures of young girls at swimming pools. Epstein is now threatening. Again, redacted, but based on Maria Farmer's own public statements. It's her threatened her that if she tells anyone about the photos, he will burn her house down. She has been saying for years, I went to the FBI, you know, flagging the things that Epstein was doing and the FBI ignored me. And now she's got the receipts here. Here is the actual report to the FBI.
- [17:53]
A
She's literally. The receipts.
- [17:55]
C
Exactly, the receipts. And so I think this does, you know, again opens the door and this is happen in other areas. And you and I both have worked with the FBI throughout our careers. You worked there yourselves. And I don't mean to malign the FBI, but sometimes they have really fallen short when it comes to sexual assault related cases. Think about the case of Larry Nassar. Very similar. Right.
- [18:16]
A
Just one of the things that I think is the sign of a healthy institution Is accepting criticism, looking at, sure. When you have fallen down, no organization doesn't have problems. And that is something I really took from Robert Mueller. That openness and being clear eyed and being responsible and forthright. If you made a mistake, own up to it, figure out how you're going to fix it and figure out how you're going to audit that fix to make sure it's working. So whenever I hear like, oh, the FBI or any institution I've worked at has had a failing, it's like, you should be open to that criticism.
- [18:54]
C
Yeah. And you know, that segues perfectly into the last real takeaway for me as a matter of substance is that there is now much, much more revealed about the 2007 investigation in Florida that ultimately led to a very, very sweet deal for Jeffrey Epstein where he was being investigated federally. He was allowed to plead guilty to a state charge and really avoid an incredible amount of criminal exposure federally. And what is being revealed now does show, you know, the breadth and depth of that investigation and how many underage girls were brought to him and how he recruited them to either be a masseuse for him, which involved taking your clothes off, or to bring other girls to him. And he did not want girls in their 20s, and I guess I shouldn't call them girls if they're in their 20s. He wanted actual girls.
- [19:46]
A
Right.
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C
Who were still underage. And so, you know, that reveals the kind of, wow, that was quite the sweetheart deal he got, I think when you see how much was available to the federal government. And he really got a pass, which came back, of course, in 2019. But I think that's one of the other staggering points to me is just how much there was there. And he got off so incredibly easy with that.
- [20:11]
A
Let's take a break and come back and talk about a variety of developments. The Letitia James case, the convention conviction on one of the two counts for Judge Hannah Duggan. And then the thing that you mentioned with respect to the most recent filing of doj, where they had a pretty jaw dropping admission and a footnote that I really am dying to ask you about. Talk about being in the weeds. Let's take break and come back and talk about that. Okay, that's good.
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- [22:17]
A
So there's sort of three buckets or three pieces to this discussion. The first is Letitia James, where I think everyone who's listening to this knows that they keep on trying to indict her. And the grand jurors have twice said no. But one of the things that we learned this past week is that the prosecutors not only tried to bring new charges now for the third time, but they added a new potential charge, which sort of to me smacks a little of vindictive prosecution. Unless there are some new facts that they learned, which we know, we have no reason to believe that's true. But here's the part that really I thought was striking. They sought to keep that fact that they had tried to indict her again.
- [23:02]
C
Secret, secret, tried and failed. I guess I should say yes because.
- [23:06]
A
The judge rejected it. And that to me is like, you're not supposed to use secrecy to protect yourself from opprobrium. As we just talked about in the Epstein matter, what Congress held, this is not the situation where you have an indictment of somebody that doesn't go forward. And the government's never supposed to say anything because it's like put up or shut up. And so you would never say, oh, we tried to indict Mary McCord, but it didn't work out and people should know that. I mean, that's a complete violation. And for the same reasons we talked about James Comey in Another circumstance not have been denigrating Hillary Clinton when you close a case. But that's not this situation where there had been an indictment. And the whole idea is that the fact that the grand jury rejected it is something that is only redounds to her benefit and hurts the government. That's right. And so I just found that appalling. And again, this is one where the good news of this is the outrageousness of what the government was trying to do was countered by the judge saying, no way, no how.
- [24:11]
C
And it's so interesting how this came up. I guess what happened. At the end of the day, the grand jury comes into court to return its indictments, and it returned other indictments. And then it put on the record the no bill. Right. The sheet saying there were not 12 grand jurors who agreed to these charges. And it was after that that the government came in and said, oh, we want to put that under seal. And the magistrate was like, nope, say what?
- [24:35]
A
Say what?
- [24:36]
C
It was returned on the public record in open court. And I'm not sealing it. The other thing I thought was somewhat remarkable because then I looked at the, you know, attached to what the grand jury filed was the actual indictment that they asked the grand jury to return. And I compared it to the original indictment, and they did add account, and it does kind of give you that sort of. Well, that seems kind of vindictive to add a count, especially because it's not based on new facts. But one other thing I noticed is that the previous indictment, it had just one count of false statements, but it kind of lumped multiple false statements into the count. Whereas what this one does is it gives two counts of false statements statements and pulls apart the false statements. You know, I think about the second home writer and some other representations. So it pulls those apart. The other thing that I thought was even more interesting is the new indictment that the grand jury refused to return is much more detailed in describing the alleged scheme and artifice to defraud the bank fraud count. It has multiple paragraphs describing how this scheme allegedly took place and the acts in execution of the scheme. So it's in much more detail than the original indictment did. Yet this is where they failed to get an indictment. So I find that interesting. And it makes me really wonder what was going on in that first grand jury where Lindsey Halligan herself came in. We know it was relatively brief. We know it was just one witness. Yet here we had an actual, you know, experienced AUSA from Missouri who apparently went through and said, let me make this A more fulsome indictment with more information and then failed to get, you know, the grand jury to return it. I just. I can't really explain that, but I found it interesting.
- [26:20]
A
Yeah. I think some of this is thinking about the rationale. It's hard for us to put our heads into it because I'm not sure normal processes are going on so that a lot of this could be nefarious and a lot of this could be incompetence.
- [26:35]
C
Yes.
- [26:36]
A
Or maybe something else. But, you know, it's. It's one of these things where it's hard to, you know, if it was. If I was outside of government and it was you in government, I'd be thinking, okay, what was Mary thinking? Because there's got to be a rational reason for it that's tethered to the facts in the law. I'm not sure that's the way you can operate here. Speaking of which, this is a good transition to Judge Hannah Duggan. She's a Wisconsin state court judge who had been charged with obstruction of justice and sort of harboring somebody who was.
- [27:07]
C
Concealing someone from arrest.
- [27:08]
A
Concealing. Exactly. And that concealing char, which I think is a misdemeanor, is the one that she was acquitted of, but the obstruction charge was one that she was convicted of. The jury did ask a question which was, in order to be convicted of both of these charges, essentially, does the defendant, Judge Duggan, have to know sort of the identity of the person? And the trial judge basically said, yes, as to the concealing count, and basically said, no, you don't need to know the identity of the person for the felony of obstruction. So that a lot of people are speculating that that might be the reason that there was an acquittal for one and a conviction for another.
- [27:52]
C
And I should just. Should we back up one second to just make sure that people are tracking with us? I mean, most people probably saw this news, but this is a judge who was holding court, and she learned that there were six federal agents outside in the courtroom hallway, including immigration agents, and that they were there with an administrative warrant, which is not a criminal warrant. It is not a warrant based on probable cause of a crime signed by a judge. It is simply an administrative civil warrant that is able to be signed by ICE officers or CBP officers, saying, we have probable grounds to believe that this person is not lawfully here. They were apparently there to try to execute this warrant on a defendant who was appearing in her courtroom that day on completely unrelated criminal charges. And the allegations, you know, neither you or I were at the trial. We've read some of the reporting about the trial, but the allegations were that when she learned that, she became upset about that, asked some of these agents to go talk to the chief judge about, you know, what's the proper procedure in terms of having, you know, an administrative ICE warrant that you're trying to execute in a courtroom. And then she went back into her courtroom and let the defendant and his attorney out a side door into a hallway that led to the public hallway. But apparently that hallway that led to the public hallway also, if you went a different direction, led to a set of stairways, that you could have exited the courthouse. The defendant and his attorney did not exit the courthouse. They exited into the public hallway. He was apprehended. But the allegations against Judge Duggan were, as you indicated, one, that she was intentionally concealing him while there was, you know, a proceeding where there was a federal warrant, that she knew the federal warrant had been issued for this person's arrest. She actually concealed him and intended to prevent the person's discovery or arrest. That's the one where the jury questioned, did she have to know the name of the defendant? And the judge said she did, and they acquitted on that. The other charge was the obstruction of a proceeding, which is just that there was a proceeding pending, and that proceeding being the immigration proceeding, not her courtroom proceeding, that Judge Dugan knew of the pending proceeding, that she endeavored to obstruct the pending proceeding, and that she did so corruptly, that is, with the purpose of wrongfully impending the proceeding, and he went on, or the judge went on, to instruct. Corruptly means acting with an improper purpose personally or by influencing another, including making a false or misleading statement. This is the charge where the jury then ask a question. Well, also the same question. Does she have to know the identity of the individual that they sought to arrest? And for this charge, the court said no. Now, I know that that certainly might explain the disparity in the split verdict there. And I know there are people opining about this will be an issue on appeal, and I'm sure it will be an issue on appeal. I will say these are two very different charges. So I read the court's decision about his instructions. His basic instructions were grounded in the 7th Circuit precedent for these types of instructions. And so, you know, like I said, I think that explains the split verdict, and I know it's going to be an issue on appeal, but I frankly don't find that instruction that crazy or that off. I do think big Issues on appeal are going to come to the heart of what I think is a big issue across the country right now, which is how are judges, particularly state court judges, supposed to handle immigration enforcement in the courthouses? Because, yeah, an argument was here that she had judicial immunity to kind of control her courtroom. That was denied by the federal judge because this was a federal case brought by the United States. That is definitely going to be an issue on appeal. And this is a kind of thing that is happening all over. And I just want to foot stomp the point that it does not mean a judge is trying to obstruct immigration proceedings if they do not like immigration officials coming into the courthouse to make an arrest. And that's because they have a completely different job to do. Right. They are trying to preside over pending cases, civil and criminal, and they want not just defendants to show up, they want witnesses to show up, they want jurors to show up. The entire system will just not function at all if people are too scared to go to court because they think ICE is going to be there. And either they or somebody they know might be grabbed by ice. And again, it doesn't necessarily mean you have to be undocumented. Right. We see ice grabbing and detaining U.S. citizens.
- [32:15]
A
So this is the thing that I think is sort of under developed from what I understand of the trial record, and I think at least should be an issue on appeal, which is precisely this issue of when you have sort of dual motive or dual purpose, and this statute requires that something be done with intent. In other words, it not be an accident, but you also have to do something corruptly. Now, let's assume. Let's take this as a hypothetical. A judge says, I don't think that there should be arrests in the courthouse. If ICE wants to arrest people outside of the courthouse, you know, have at it. That's not my job. But within the courthouse, there are a lot of good and sufficient reasons why I don't want to have that happen. I want witnesses to show up, I want decorum, and I want to have control of this. I don't want this to be a place where there's going to be mayhem. I can understand why ICE might want to do it here, but that's my goal. And let's assume the chief judge of the district has all the judges together and everyone votes. That way, the consequence would feel like they're, quote, obstructing ICE in the sense that ice, if they wanted to do something in the courthouse, couldn't. But that's not doing something corruptly because they're thinking they're doing it within the law and they have the right to do it. And that's where I was. I thought, I read the judge's jury instructions and I thought it didn't capture that. Now, again, we weren't in court. We don't know the full extent of the proof, all of that, whether this issue was objected to and raised by the, you know, by the defense. But if you have that dual purpose, that is really important because judges are allowed to do that. In the same way, when we've talked about, you know, states don't have to cooperate with the federal government on the ICE arrests and it may feel like they're obstructing ice, but they're not. They're just staying within their rights. And so to me, that line between at what point does that legitimate interest that you have in the courthouse, to the extent that was true here and again, there may be facts that disprove it, do you slip over to no, there was actually another intent that was sufficient. And if there's a dual intent, is it any part of that, in other words, if she has 1% thinking this and 99%, or does it have to be what in the law, so called, but for or a primary or substantial reason? So there are lots and lots of. By the way. Well, this is for people listening to this. They know lawyers can take any issue and make it complicated. And part of our job is to do that. And then part of our job is to do the opposite. Take something complicated and make it simple.
- [34:51]
C
That's right. And there's another aspect unrelated to Hannah Dugan in particular, which is that, you know, this is a piece of definitely a uptick in sort of attacks against the judiciary. Right. This Department of Justice has been, Todd.
- [35:05]
A
Blanch just said correctly.
- [35:07]
C
Yes, that's right. We're at war, I think you said, on the judiciary. Right, we're at war with the judiciary. And so, you know, this is different because there are specific allegations regarding conduct as opposed to just the substance of opinions. A lot of those other attacks are about just saying judges are being radical, difference, etc. Etc. It is an important difference. But I think in terms of like sort of, you know, chilling impact on judges to the extent there is any. This kind of does fit into some of that. So I think there'll be much, much more to cover as this makes its way up onto appeal. And as we watch courthouses around the country grappling with what can they lawfully set as sort of boundaries on ICE activity within those places. So there's a lot of things that have changed this year that regarding where ICE activity can take place and I think a lot more will be to come as various cases work their way through the courts. But should we take a break and then when we come back we'll talk about the civil case that I mentioned and then talk about the National Guard in D. Yep.
- [36:05]
A
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- [37:55]
A
Mary There was a filing by the Department of Justice that caught our attention because of a brief statement and a footnote. What's an issue in the case? What's the case about? And then we'll turn to what struck us as odd.
- [38:08]
C
Yes. So this is a case that, you know, arose out of the lapse in government funding. Remember, we did have a government shutdown and the run up to that lapse of funding, the Department of Energy and the Office of Management Budget basically threatened to take punitive action against states, against blue states. I shouldn't say the administration threatened to punitive actions. And then one of those punitive actions was specifically allegedly taken by the Department of Energy and the Office of Management and budget. On October 1st, the director of OMB, Russ Boat actually tweeted out. I don't know if it's a tweet or a truth social, but I'm looking at an actual copy of it. This is what he said. Nearly $8 billion in green new scam funding to fuel the left's climate agenda is being canceled. The projects are in the following states, and he listed 16 states. All 16 states where projects were terminated were states that had voted for Vice President Harris over President Trump in the 2024 election. So these states and various entities that were supposed to get grants had been awarded funding for various energy green projects, filed a lawsuit saying, this is, you know, arbitrary. This is in violation of Fifth Amendment due process. This is in violation of the First Amendment because they're essentially penalizing states and companies in those states because of their political views. And that's where we come to the filing that we were just talking about.
- [39:35]
A
So this is an issue where elections do have consequences. And so if the Department of Energy and the administration is doing things because of policy differences, and assuming they follow all the rules about notice and due process, policy differences are something that's legit. You can be like, we want to fund X and not Y. And so that's fine. But what we thought was not fine was including as a factor in any way. Well, we're doing it because you're a Democrat or you didn't vote for us. That's not a policy issue. And there was a filing where the parties put forth their separate views about what facts they would stipulate to what they wouldn't. It's sort of a typical document alerting the judge to what differences there are. And in the government's section where they say what they'd be willing to agree to, what they'd be willing to stipulate, they say on page eight and page nine, the selection of which Department of Energy grant termination decisions were included by them. So in other words, the selection that they made, that it was, quote, influenced by whether a grantee's address was located in a state that tends to elect and or has recently elected Democratic candidates in state and national elections, so called blue states. Everyone follow that? That's one of the things that they say influenced the decision. And then they Drop a footnote seemingly explaining that statement where they say defendants reiterate their legal position that consideration of partisan politics is constitutionally permissible, including because it can serve as a proxy for legitimate policy considerations. That's where I was just like, yep. What? Like my head felt like one of those cartoons where your head spins around like, that's just unbelievable. If there's a legitimate policy difference, fine. But whether you came from a blue state or red state is irrelevant.
- [41:52]
C
I mean, the word here is proxy, Right? Right. Proxy. Proxy means we don't have to dig into whether there really is a policy difference. We can just say blue state proxy for policies we disagree with in this administration. And I know you said there's a question there, but like, for me at least, and probably you, Andrew, many, many years in the Department of Justice. Now granted, I was mostly on the criminal side. I mean, national security, we had civil and criminal. But I've now been litigating civilly since leaving the department for, at this point, eight and a half years. I've never seen the Department of Justice say anything like that.
- [42:29]
A
I agree. And I have worked with the Civil Division's Federal Programs branch, the part of the Civil Division that has signed off on this and that is not the Federal programs branch. I could see. I mean, what they're saying is assume the following hypothetical. There is a policy that you agree with that the current administration agrees with, but because it's being done in a so called blue state, or it's being done in a red state because, you know, goose gander time, that's a valid consideration because it's somehow a proxy for a policy you don't agree with. I mean, as if what all policies coming out of blue states and red states are all going to be painted with the same brush. You can obviously disagree with the policy, but where the state is, is obviously not a proxy for it. And so I was just dumbfounded. And this goes to the idea, and it's good that we're calling it out because it's a norm that needs to be called out so that people understand the goalposts are shifting.
- [43:34]
C
And you know, the merits here about whether it raises constitutional issues for the federal government to consider partisanship when awarding contracts. That's a constitutional issue to be resolved. And you know, essentially I read a few of the other things government has filed. They said essentially this isn't protected, but those things will have to get resolved. But it's just extraordinary. I've just, it's, you know, to just be so open. It's funny. There are definitely things, and we've talked about this before, that this administration is very transparent about. And like the political prosecutions of James Comey and Letitia James are other examples of how transparent there being in other cases, like maybe having to do with Jeffrey Epstein, a little bit less transparent.
- [44:15]
A
So, Mary, there was a decision out of the D.C. circuit, three judges, it was unanimous. There was a little separate point from two of the judges, but it reversed the preliminary injunction, the stay that the District Court had implemented, the DC Circuit.
- [44:33]
C
Motions panel staying an injunction of the National Guard deployment in dc.
- [44:38]
A
Yeah, there are lots of caveats to the ruling, but ultimately it said that the President was likely to win. And so it reversed that preliminary injunction on what he could do in Washington D.C. and I'm going to ask you for sort of more details on that. But I sort of felt like this was big picture, sort of a lose and a win. Because while it said that the President has all of this unique authority, both constitutionally and statutorily, in connection with Washington D.C. the decision was fairly pointed about limitations that the President has when it comes to an actual state because it was differentiating the states from dc. So there's a lot in there that if I'm California, if I'm Chicago, I'm reading this going, oh, not so bad, but what actually did they say? And then we can turn to some limitations on the win for the administration.
- [45:41]
C
Yeah, well, you previewed it really well. And I think as we've been discussing these National Guard deployments over really since June, I think we've made this point before as well. DC is different. It is not a state. Under the District clause, the Constitution, Congress gets to pass all legislation that affects the District of Columbia. And even though they passed at some point a Home Rule act that gives DC's own government the ability to make certain decisions for DC, Congress still holds that sort of plenary authority to overrule any of that. And as this three judge panel held in staying the preliminary injunction issued by the District Court below, they said nothing about that Home Rule act vests in the District government any greater authority over the National Guard of the District of Columbia than it had before Home Rule. And before Home Rule, as now by the Constitution, the President is the commander in Chief, chief of the military. Congress had established that for the District of Columbia, the National Guard reports up through a commander that reports to the Secretary of the army, that reports to the President of the United States, unlike the National Guards in all of the 50 states, which actually report up to the governor as the commander of chief in their state unless they are federalized. And that's what happened of course in LA and Portland and Chicago is they got got federalized and that's why they were able to challenge that federalization. But here in D.C. there's no governor. And so in some ways one could say they're always federalized. But for purposes of right now, what this three judge panel said is right now they're acting in this hybrid title 32 status. At least they're purporting to. And this is where they said that they think the federal government is likely to succeed on the argument then under title 32 when they're performing a federal function and paid for by the federal government, they can do other duty under a provision of law called section 502F. And that other duty can be things that include the protection of federal functions. Now I do have a slight quarrel with their interpretation of 502F at this preliminary juncture because although I do agree that precedent says 502F can be used for things that include protection of federal functions, it's also been used like after hurricanes to help restore order. It's been used after 9, 11 to help restore order. But what it has never been used for is just general crime control. And you know, when the President first ordered the national guard out to D.C. he basically said D.C. is crime ridden. We need the National Guard to be engaging in general crime control. And that is something that 502 F has really never been used for and Congress has really never authorized. But the way this three judge panel described it was not general crime control. They described it as the protection of federal functions, which is a whole nother area we can talk about another time because the US Government has always taken the position that protection of federal functions does not violate the Posse Comitatus Act. And that is one of the things that this panel said. We are not ruling on whether anything that the National Guard did was actually domestic law enforcement in violation of the Posse Comitatus act or whether the fact that all of the leadership of the National Guard is at the federal level. Is that the equivalent to essentially federalizing the National Guard.
- [49:09]
A
I think it's important to stress that point, which is that the district court did not reach, and that means the circuit also did not reach whether the National Guard units are engaged in law enforcement activities in violation of the Posse Comitatus Act. So that's still very much open. I also think it's worth putting his opinion in our show notes because I actually thought the judge who is the principal author of this did such a good job of laying out what is a complicated structure in terms of how the National Guard operates, what it is when they report states, when they report federally, and then why DC is different. So for those of you who are interested in the weeds, I know we've been talking about this for so long, but I just found it a very clear.
- [49:59]
C
It's easy to follow.
- [50:00]
A
Exactly. It was just so logical. But just to put stomp something, which is that this opinion goes on and on about why DC is different unlike the states, and that the President does not have the same authorities. So there's language larded throughout here that the states can use in their challenges. But it was sort of interesting because the judges on this panel, it's a three judge panel, two of the judges are sort of viewed in the legal world as pretty conservative judges who tend to side with the Trump administration, and one is viewed as not that way who does intend to. But it was a unanimous decision even on that language about the limitations.
- [50:49]
C
Well, actually, can I just get into that because this is really important because in addition to using the D.C. national Guard, the other thing that the President did here is he invited National Guards from other states to come into D.C. and that was an issue because of course the mayor didn't ask for the other National Guards to come here. Doesn't want really the National Guard here in particular, the city Council hadn't voted for that. And one of the things that we've talked about before is like, what if this happened in another state? Because remember in Illinois, where Governor Pritzker has been adamant that we don't need any National Guard presence, if the Texas National Guard had gone there under this 502F that I've been talking about, under 502F, the National Guard stays under the command and control of their own governor. Unlike when you federalize the National Guard. Right. Which is what actually happened in Chicago, what actually happened in Portland, what actually happened in la. Then the National Guard becomes under federal control. And if you federalized, then you have other issues that result in it. But then they're federalized. And the problem would be if you use 502F for Texas to send its National Guard into Chicago, then you'd have one state's governor essentially using its own National Guard to invade another state against.
- [52:05]
A
That state's will, which is obviously illegal. Right? I mean, exactly. You don't need to be a lawyer to do that. And so just so everyone understands the issue here though, was could the president, who sort of got this incredible power in connection with D.C. also use National Guard elsewhere to come into D.C. and they basically were going, yes, it could work there because of the unique nature of D.C. and the control over D.C. but of course, it could not work if we were talking about states. And that, again, is so interesting to me, that you have a confluence of all three of these judges from very different backgrounds agreeing on that proposition. And it goes to something that we've seen where we talked last week about Judge Bybee, who is also viewed as a conservative jurist, very much coming out with sort of a state's rights view to what's going on and a very different issue. But it reminded me of that, which is that this is an issue where you were seeing, not a sort of, what I will say, a normal political split of judges in how they're ruling on this. No, I agree, Mary. I want to wish everybody a wonderful holiday. There's so many different holidays of different faiths, people who have no faith. I hope you have a wonderful holiday season. 2. And then I guess we should wish everyone a wonderful new year, because we don't know whether we're going to be back next week or not. But I always wish people a really wonderful holiday season, and I want people to have a healthy and fulfilling 2026.
- [53:44]
C
And maybe put aside, at least for this week or two, some of the really heavy things that we talk about on this podcast. So if there's not any huge news, we will give you a break next week, too, to put aside thinking about heavy things a little while longer. But I don't know. I can't even imagine a week without news we need to talk about. So we shall see. We are prepared to record if we need to.
- [54:05]
A
So there's a French writer, Cabo, he was famous for this book called the Stranger Les Tranches, and he was very politically engaged. And one of the things that he said was, you also have to enjoy life. And you can be engaged, but you also have to remember what you're doing it for. I'm a big believer in people staying engaged, but you need to pace yourself and enjoy the reason that you're doing it, whether it's family or friends or the arts or whatever it is that floats your boat. So that's me on my high horse or soapbox.
- [54:43]
C
It's good advice. And everybody will be here today in my immediate family and their significant others. And we are going to start doing Cookie D as soon as I finish this recording.
- [54:53]
A
So yum. That sounds great. Well, okay. So that's a good way to say we need to write wrap because we don't want to keep you from eating. I have cookies to bake right so thanks everyone for listening and remember to subscribe to MSNow Premium on Apple Podcasts to get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content.
- [55:19]
C
This podcast is produced by Vicky Virgolina. Our associate producers are Iggy Manda and Rana Shabazzi. Greg Devens II and Hazik bin Ahmad Fared are our audio engineers, Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for Ms. Now Audio.
- [55:38]
A
Search for main justice wherever you get your podcasts and follow the series.
- [56:06]
C
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