Andrew Weissmann (3:11)

to identify themselves, including whether they're in law enforcement.

Mary McCord (3:15)

That's right. Yes. And the judge we will talk about this goes through examples and I know of these personally from people I've spoken with who are monitoring this and you probably do too, Andrew, of people who just want to commit criminal acts, who are pretending and impostoring ICE agents. And then we will finish off with Judge Eileen Cannon's decision yesterday not to release the second volume, Volume two. She's back. Back of Special Counsel Jack Smith's report on the Mar A Lago investigation.

Andrew Weissmann (3:45)

Mary, we're really going to end on a high note.

Mary McCord (3:47)

Oh my goodness. I mean, listeners will know that long ago at the end of 2024, Jack Smith did release volume one, which had to do with the January 6th investigation, the investigation into the efforts to overturn the results of the 2020 election. But volume two was not released at that time because at that time there was still a pending case against Mr. Trump's co defendants. That case has been long since dismissed. Nevertheless, Judge Cannon has said that report will not see the light of day. Now obviously that's going to be the subject not of a normal appeal because everybody we'll get to this. Everybody arguing in front of her was on the same page, the Justice Department, Trump, Walt Nada and Carlos de Oliveira.

Andrew Weissmann (4:31)

We are going to try and stick to these winnowed categories. We may have some interesting asides because there's so many other things to talk about, but let's talk about the tariff decision. Everyone who's listening to this knows the big picture, which is There was a 6 to 3 decision with six justices saying that these particular tariffs were improper, illegal because there was not statutory authority for the president to do this. Just to be clear, this is not

Mary McCord (5:05)

really a constitutional issue, although there are constitutional pieces balance to it.

Andrew Weissmann (5:11)

Yeah, exactly. But the main issue is that the Constitution gives Congress the power to impose tariffs and taxes. And the question is whether they delegated that and whether it was clear enough. And then there are lots of sub issues about what's the test for it being clear enough. But did they delegate this? And one high level way of thinking about this case is you think if they were going to delegate their unique power, Congress's unique power to tax and to tariff, that they might have mentioned the words tax and tariff. There's a lot more to it. But you end up with six justices saying that they did not think that it was sufficiently clear that this was delegated by Congress to the President. And the president has no other authority to act. His only authority was going to come from whether it was delegated by Congress. And then one other quick point before I turn it over to Mary is that the six justices, many people probably know from the way that the president reacted to that it included the three so called liberal justices, Justices Kagan Sotomayor and Ketanji Brown Jackson, but I'm sure we'll talk about Robert Jackson because he was invoked a lot. And also three justices who are not the so called liberal justices I just mentioned, it is the Chief Justice Roberts and two justices who were appointed by Donald Trump in his first term, Amy Coney Barrett and Neil Gorsuch, the person who penned the very, very, very long concurrence. And then Justice Kavanaugh wrote the main principle dissent and Justice Thomas wrote a separate opinion on that. But you have Alito Thomas and Kavanaugh in dissent. So with that, Mary, what are your sort of high level takes on this?

Mary McCord (7:05)

Sure. So first, just to go back and make sure everyone is tracking with us because there are so many different authorities for tariffs. These are the tariffs that were imposed on allegedly under the authority of the International Emergency Economic Powers Act. And this is a broad statute that gives the President a lot of authority to respond to international kind of emergencies by doing different things that involve commerce. So he can block certain goods from countries and has various authorities. But at bottom, as you said, and these are tariffs that he had to do this, he has to declare an emergency. And he declared two different emergencies early in his administration. One had to do with drug trafficking and one had to do with the trade imbalance between the United States and other countries. Now we can all scratch our heads and say, okay, these are big issues, but they're not new. Like in an emergency, like suddenly we had a drug trafficking issue that just popped up, or suddenly we had a trade imbalance that just popped up. So therefore it was an emergency. One of the things, and the reason I raised that one of the things that the court did not address is was there really an emergency? Can we as the judicial branch even opine on or take up the question of whether the president in his discretion has declared something an emergency? And so that's not an issue. Because some of you may be saying, I don't really think there was an emergency. And to be honest with you, I don't think there was an emergency. But that's just not part of what this ruling was about. This ruling in, you know, 170 pages of different opinions, although the primary majority opinion is actually quite brief by comparison, I think it's fewer than 30 pages. But so many Justices felt the need to write about this. It is really all about almost all 170 pages is about statutory interpretation and in particular, two words. So the statute AIPA gives the President the powers to do a number of different things that are articulated with very specific words. And in fact, Justice Kagan in her concurrence talks about the combination of the verbs and the objects that are used in the statute. Give the President 99 different things that he can do, but not one of them says impose tariffs or impose taxes. The words that the President relied on were the words regulate importation. Now, in between those words were a

Andrew Weissmann (9:27)

bunch of other words, but 16 words in between.

Mary McCord (9:31)

That's right. But the President's argument is regulate importation gives me the power to impose taxes. And so at bottom, this entire case came down to does regulate importation mean Congress has said to the President you may impose tariffs? And this is where I think the next observation is the most salient. Because of that sixth justice majority, there were actually two different rationales for their determination that regulate importation does not include tariffs. And that is the three quote, unquote, conservatives applied what's called the major questions doctrine, and the three so called liberals just applied normal principles of statutory interpretation. The major questions doctrine is a doctrine that some would say is sort of made up. Some would say it has historic pedigree, depending on your views about this. But the idea here is that when Congress delegates authority to the President when it is on something of vast economic or political significance, they must do it so with a very clear statement. If the statute is ambiguous and the power that the President is seeking to use is of vast political or economic significance, they have to have done so clearly. So this is the doctrine and as you will recall, that was used to strike down things like President Biden's student loan forgiveness plan. It struck down certain EPA regulations about switching over to more green energy. It also was used in emergency applications to the Supreme Court during COVID to strike down certain vaccinations and testing requirements imposed during COVID And also people remember the eviction moratorium that was actually imposed during COVID So these are issues where the conservatives on the Court had said on these questions of major political and economic significance, we don't think Congress has been clear enough in its designation. So that's what the three applied, the

Andrew Weissmann (11:31)

three conservatives here, because of that history, liberals don't like signing on and here didn't even think it was necessary. But the history of the Major questions doctrine is like the knock on it is that it was made up to kill or significantly diminish the administrative state and social programs of the administrative state, and that by putting a sort of thumb on the scale when it's a big issue, by saying it has to be super, super clear what Congress intended, it's been used by one side against the other. And then when this case was being argued, people thought, oh, this is an interesting case because this is going to be. Be careful what you wish for, because if you really believe in the major questions doctrine, this is hardly clear. In other words, all you have to aim for to say that there hasn't been sufficient delegation is that it's ambiguous. In other words, you don't have to aim for your right. You just have to get in the zone of this being ambiguous. And then the major questions doctrine kicks in and says, well, it wasn't clear enough. And so three of the justices hung their hat on that interpretive ability. Justice Kagan said, you don't even need that. She didn't have to get into its validity or not. She just said you could just use normal statutory rules because it's just not at all clear. In other words, we win. Because as I said, you would think that if you're going to give away something this big, involving billions of dollars, that would give the president, I think, as Chief Justice Roberts said, the ability to impose taxes on whoever, whenever and for as long as he wants before Congress does that. Justice Kagan's point is you think it might be clear and the Congress might have used the words tax or tariff.

Mary McCord (13:20)

Yeah.

Andrew Weissmann (13:20)

And so that's sort of this inside baseball, if you're a lawyer, this sort of idea of what's happening with the Major questions doctrine. All six Justices get to the same place. They all say that it didn't delegate, but three rely on this presumption. I have to say, you know, if it wasn't for the history of it, I don't know that you need to call it the Major questions doctrine, but some of it is kind of common sense, which is the bigger an issue, the more it would have been something of real significance to people in Congress. The More, you might expect there to be some debate, some clearer language. In other words, you could understand where the kernel comes from of thinking about the Major Questions doctrine. I think it's been weaponized, and I don't think it's actually like a doctrine as opposed to just a sort of common sense rule. And I found it fascinating that when you're on this Inside Baseball issue of, like, how do you interpret things? Amy Coney Barrett and Justice Kagan kind of say the same thing, which is you look at the text and you look at the context and common sense.

Mary McCord (14:28)

Yeah. And let me just take that point, because Justice Kagan reiterates this in her concurrence, which is a lovely seven pages, I think. And she. She drops a footnote, basically saying to Justice Gorsuch, you know, I know you're trying really, really hard to get converts to the Major Questions doctrine. I almost regret to inform him that I am not one.

Andrew Weissmann (14:49)

She says, I know.

Mary McCord (14:50)

But she says, I proceed in this manner, just as I did in these other cases that I had earlier mentioned, the case involving student loan forgiveness and the case involving EPA regulations. She says the following, which is to your point, I consider a delegation provisions language. So go straight to its text, broaden the scope to take in the statutory setting and apply some common sense about how Congress normally delegates. And she says, you know, we don't have to reach out and call something Major Questions doctrine to apply normal statutory interpretation. To me, this case is all about statutory interpretation. And that's very like what Justice Barrett said in her concurrence. Now, she does sign on to the Chief Justice's invocation of Major Questions doctrine, but she writes, frankly, really to respond to Justice Gorsuch. And we haven't really set the table for why all these Justices are feeling like they have to respond to Justice Gorsuch. But she's saying this is a lot about common sense and about statutory interpretation. So it does feel like she is in many ways closer to the quote, unquote, liberals in terms of how she thinks about this particular case, statutory interpretation, and whether Major Questions doctrine is really anything different or it's just kind of like, I don't know, like a heightened level of statutory interpretation. The more important the issue is, which is, to your point, I think, common sense. So I kind of am in that camp, too. Like, we always should do statutory interpretation when we're trying to determine, did Congress delegate something? And it does kind of make sense that the more significant the issue, the more you're going to look to see, did Congress really seek to delegate that. And one of the things the Chief talks about in his opinion is also the more that it's a core power of Congress and he talks about in Article 1 of the Constitution, you know, this is a primary goes back to the founders and Alexander Hamilton and others like this power of the purse. This was something that was uniquely given to Congress because the founders did not want one person essentially being able to use that extraordinary power. And there were a lot of digs, to be honest, in both, I think the Chief's opinion, and particularly Justice Gorsuch's that never used Donald Trump's name this way, but did suggest that one of the problems here is this was just simply accumulating too much power. That is really Congress's power in the president that it's phrased. It's like any president. But of course, we right now in our world are talking about this president. And just because we've talked about him so many times, Justice Gorsuch wrote a very interesting concurrence that basically is like everybody else said things that I think have problems. So let me take us down this road of everybody else, all the other

Andrew Weissmann (17:28)

justices rationale, long road, can I just say, a long, boring road. I mean, dude, like, get to the point. I mean, it just goes on and on and on.

Mary McCord (17:42)

Here's what he says. He goes through how he thinks this is Major Questions doctrine and says not everyone sees it this way. Past critics of the Major Questions doctrine do not object to its application in this case. That's not true.

Andrew Weissmann (17:54)

Really.

Mary McCord (17:54)

And even they join much of today's principal opinion, but they insist they can reach the same result by employing only routine tools of statutory interpretation. Of course he's talking about the quote, unquote liberals. Meanwhile, one colleague who joins the principal opinion in full suggests the Major Questions doctrine is nothing more than routine statutory interpretation. And he's looking at Justice Barrett. Still others who have joined Major Questions decisions in the past dissent from today's application of the doctrine. He's talking about Kavanaugh, Thomas, and Alito. Finally, seeking to sidestep the Major Questions doctrine altogether, one colleague submits that Congress may hand over to the President most of its powers, including, including the tariff power without limit. And he's talking about Thomas. Then he says it is an interesting turn of events. Each camp warrants a visit, and then he visits each camp.

Andrew Weissmann (18:41)

So I wanted to turn to some language that I think is super important on a big picture level because it was not necessary for the Chief justice to have said it. And I'm not raising it just because it happens to coincide with what you and I wrote in the New York Times, but it did. And that is maybe I'll set it up and we'll take a break and then come back and talk about it. But the question was, and for listeners, don't worry, we're not going to talk more about the major questions doctrine. We're now going to talk about a sort of a different strand in the decision. The argument that the government made was don't rely on the major questions doctrine here because it should not be applied when you are dealing with emergency statutes. That there should be sort of this emergency exception to foreign affairs and national

Mary McCord (19:38)

security, I thought is really what Caffinette was saying.

Andrew Weissmann (19:41)

But well, here the government argues first that the doctrine should not apply to emergency statutes. And it is true that foreign affairs and national security are the examples of that. Let's take a break and I'm going to come back and talk to you about what I think is really critical language that the chief uses in saying why he disagrees with this. And remember, this is in the majority. It is signed on by the chief Justice, Amy Coney Barrett and Neil Gorsuch. And so it's of significance because you could expect the liberals to sign on to this. But it's significant that you have these six justices signing on. So let's take a break and we'll come back with that cliffhanger.

Mary McCord (20:24)

Yes.

Andrew Weissmann (20:25)

And talk about the exact language that's used.

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Mary McCord (20:54)

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I'll be with you every step of the way.

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Andrew Weissmann (21:44)

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Mary McCord (21:55)

Welcome back. That was the perfect way to take us into the break and now the perfect way to bring us out of the break because we're going to talk about a case you and I have talked about a lot of times before and that is Youngstown.

Andrew Weissmann (22:06)

So on page 12 of the main decision by the Chief, he responds to this argument by the government that emergency powers should not be subjected to this major questions doctrine. And he said we reject it. And he quotes emergency powers, after all, quote, tend to kindle emergencies. The site for that is Justice Jackson in his very famous Youngstown case. And he goes on to say, and as the framers understood, emergencies can afford a ready pretext for usurpation of congressional power. Let me just repeat that. And as the framers understood, emergencies can afford a ready pretext for usurpation of congressional power. And he cites once again Justice Jackson in his concurrence. 1 It was not necessary to talk about pretexts. It was not necessary to talk about emergencies. Begetting emergencies. Let me remind people that in the Justice Jackson Youngstown case where Justice Jackson talks about that, he is discussing that in the context of World War II and the history of Germany where the claim to emergency power led to a decade of Nazi Germany suspending habeas. He, by the way, uses other examples in England, for instance, of the growth of emergency power and how wary we should be. And I think, as everyone knows or should know, Justice Jackson took a leave of absence from the Supreme Court to be the lead American prosecutor in the Nuremberg trials and was the lead American in the first trial in Nuremberg. And then he came back to the court and then repinned the very famous concurrence. So when he talks about the issue of the growth of executive power and how wary democracy should be, it comes with that fraught history of lived experience. And I thought it was so striking that there was that language. And I hope that I'm right that the reason you see such a difference in the way that the Chief justice is treating Justice Jackson's famous concurrence here versus the way he treated it in the Trump versus United States Immunity decision is the chief Justice's lived experience, meaning that between those two cases, the presidential immunity decision and this tariff decision, he has seen the abuse of presidential power and what it can lead to. He has seen the arguments, Mary, as you know so well, that are as upcoming about birthright citizenship. He has seen the deployment of the military domestically. He has seen ICE all over the country taking people, which the court said 9 to 0, that people have been removed from the country without due process. He has seen what has happened in Venezuela. And by that I'm talking about not the extraction of Ventura, but the bombing of boats and the killing of people. That is widely viewed as a violation of international law. And I hope I am right, because this is language that did not need to be in the decision. And it to me was so telling. And I thought maybe the most interesting here was that Justice Gorsuch signed on to this. In other words, everyone has always talked about the chief and Amy Coney Barrett being if there were two justices who were ever going to join the three liberal justices, it would be them. Not that they always do, and obviously they haven't, but those would be the people you would argue to. And here I thought it was remarkable that you have not just those two, but also Justice Gorsuch signing on to this. And maybe, Mary, just before I turn it over to you, I'm just going to focus for the last page of Justice Gorsuch's concurrence, talks about that as well. So Justice Gorsuch is channeling his, in my view, inner Robert Jackson, and it's on the last page. So if people are interested, you could kind of. I'm sorry, Justice Gortu, so far I've said that you're boring.

Mary McCord (26:53)

This is really good. But this is really good.

Andrew Weissmann (26:54)

This is really good. And so you can jump to the very last page. And he really just in so many ways, paraphrases over and over again. So many lines and so many thoughts from Justice Jackson in his Youngstown concurrence about this.

Mary McCord (27:10)

So let's get to it.

Andrew Weissmann (27:11)

Exactly.

Mary McCord (27:12)

He starts by saying, you know, some people are going to be disappointed by this decision. Some people think these tariffs are important. He says, all I can offer them is that most major decisions affecting the rights and responsibilities of the American people, including the duty to pay taxes and tariffs, are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And yes, it can be tempting to bypass Congress when some pressing problem arises, but the deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. Key language there.

Andrew Weissmann (27:55)

Not just that of one faction or man.

Mary McCord (28:00)

He then goes on. Their deliberation, tempers impulse and compromise, hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the nation's future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today's result will appreciate the legislative process for the bulwark of liberty.

Andrew Weissmann (28:45)

It is so the bulwark of liberty, which, by the way, really, I think is the title of our show today. Yeah, because it really is exactly what the framers meant by having divided government as the best way to assure freedom. It is what Justice Jackson was counseling us in his 1952 Youngstown concurrence with that history of what he had seen in Europe. And it is so noticeable that you have that sentiment coming and it didn't have to be said. I mean, there was a way to decide this without that language that the language we talked about from the chief justice, without this language from justice Gorsuch. Now, I don't want to overread it, and I'm not telling people, oh, this means that the Supreme Court has turned and has changed. I'm just remarking on what is there on the page now. And it is very hard for me not to be. I'm sure I'd say cautiously optimistic. I would just say I am gratified that the language that you and I, Mary, have written about and take to heart and the reason we have talked so often about that Youngstown concurrence is because of the age we're living through. And very much the reason I feel like Robert Jackson was talking about it in his age. And it's very nice to see it's not the homage to him, it's the recognition of the idea.

Mary McCord (30:24)

That's right.

Andrew Weissmann (30:25)

That you need to have a check on power.

Mary McCord (30:29)

It's really a core separation of powers concurrence that is now coming through. And we could be saying, yeah, but Congress is a mess right now. And that is true.

Andrew Weissmann (30:37)

And so that's really the point I wanted to say, which is one of the things that Justice Jackson said in the famous Youngstown concurrence where he says, thus we are giving and leaving that power with Congress, is he warned, he said, you know, we can do that, but the tools belong to the man who uses them, meaning if Congress doesn't take this up, it's going to let that slip through its fingers. And here you have the third branch saying that the first branch can't usurp the second branch, but it's requires that second branch, the legislative branch, to meet the moment.

Mary McCord (31:14)

Yeah, absolutely. Two more things I want to say about this before we move on. One is that one part of the dissent that we haven't really focused too much on is this notion that not just that there should be an emergency exception, right. That the government argued, but there should be exception in areas of foreign policy or national security. And the majority rejected that. Justice Gorsuch, as part of that concurrence, rejects that. As you know, we don't have an exception to the major questions doctrine for these things. And by the way, a bunch of the other cases where we have applied it have been cases that invoked national emergencies, national security, foreign affairs. So that doesn't really work. I flag that because we know that ultimately there are likely to be cases coming to the Court that are sort of in this core sort of foreign powers national security area. And it's starting, I think, to signal like where some of the justices might fall. Although I do think, you know, when you have something. For example, the Court early on ruled on Alien Enemies act only to the extent it said everybody deserved due process, but they've never sort of substantively ruled on can the Alien Enemies act be used the way the President tried to use it, that the military decision. So we'll see what comes later. The other thing I think it's important for us to talk about just briefly is the President's reaction. And I'm just going to read a few of the things that he said.

Andrew Weissmann (32:36)

Were you surprised? I mean, it's, I'm not, but it's gross and not understanding the rule of law and principles. I mean, it just, it said right out loud, I don't believe in principles. I don't act based on principle. I don't judge them based on principle. I judge them based on loyalty.

Mary McCord (32:53)

Well, I was going to say, I think even more than that, it was like you defied me, Justices who I appointed, and I am really mad at you and I am really proud of Justice Kavanaugh because he did not defy me. And this is what he says. He calls the justices who ruled against them, quote, fools and lap dogs. Suggested they'd been corrupted by unspecified foreign influence and, quote, slime balls and says, foreign influence.

Andrew Weissmann (33:17)

Foreign influence. I'm sorry, is Russia now influencing Amy Coney Barrett and the Chief justice and Neil Gorsuch?

Mary McCord (33:24)

It's just made up. Just made up.

Andrew Weissmann (33:25)

I mean, it's preposterous.

Mary McCord (33:27)

It's also dangerous because this next. I'm ashamed of certain members of the court, absolutely ashamed for not having the courage to do what's right for our country. And he's talking about Justice Gorsuch and Justice Barrett who he nominated. He said they were embarrassment to their families because they sided with the majority against him. And let's remember, when the President criticizes people like this, including judges and justices, we have seen how members of the public extremists react.

Andrew Weissmann (33:54)

Right.

Mary McCord (33:55)

This is dangerous rhetoric that has the potential to. I mean, I can imagine already that the number of threats against those justices probably soared on Friday night and into the weekend. I would say with almost certainty. I mean, there's always a lot of threats against justices, but this is essentially calling for it. And it also just is basically totally undermining the authority of an equal branch of government, the judiciary.

Andrew Weissmann (34:20)

And, Mary, you know what it reminded me of, to your point about the danger? This reminded me so much of what Donald Trump said about his own vice president about Vice President Pence.

Mary McCord (34:32)

You're right.

Andrew Weissmann (34:33)

And guess what that led to in terms of the violence is, you know, there's a reason that you had people screaming to hang Mike Pence.

Mary McCord (34:42)

Pence.

Andrew Weissmann (34:42)

When the president announced on social media that the Vice President, Donald Trump claimed was on the same page and agreed that the vice President had the power and authority to not count the votes. When Mike Pence has said that he did not agree, and we know that has to be true because he actually acted on it. In other words, he walked the walk in terms of what he said happened. And to me, this was just so reminiscent. That's who we're dealing with. There's no question of principle. There's no question of, like, this is not a president who's saying, you know, I disagree. I think they got the call wrong. And this is why, legally, I disagree.

Mary McCord (35:23)

Which is absolutely fair to do that.

Andrew Weissmann (35:27)

Of course. Absolutely. You don't have to agree with every decision from every judge by a long shot. But this is both dangerous and schoolyard and undermining the idea of principled action and really misunderstanding the idea of what it means to be a judge or an oath of office. And we've seen it with the Department of Justice that all of this is, to me is it's all of a piece. It's like the way to understand Donald Trump is to put aside the naive notion of principles of acting that way.

Mary McCord (35:59)

We are recording today on the day of the State of the Union, which will be tonight. And one of the things Trump said after this opinion was that the three justices who ruled in his favor were, quote, happily invited to the State of the Union. And the others, they're barely invited. Honestly, I couldn't care less if they come. I mean, talk about schoolyard, although I think it's an offense to schoolchildren to make that comparison. So we'll see. I think it'll be interesting to listen tonight if I can stomach it, to what he says about this ruling and about these justices. I would like to say he will have time tempered himself, but I, I don't think that's likely.

Andrew Weissmann (36:33)

Well, we'll see. We will in next episode talk about sort of the fallout and the remedies. We know already that one corporation is seeking to have the tariffs that it's paid, paid back. But there's more on that to come, the implementation of this. So, Mary, you talked about a case that came out of a district court in West Virginia by Judge Joseph Goodwin dealing with this issue of the fact that ICE agents are, in his view and many other judges violating the Fourth Amendment and violating due process in the way that they are grabbing people and imprisoning them. So he focused, though, on a particular additional piece, and that is that the ICE agents are masked, that essentially these are masked people and I should say really masked men, because the vast, vast majority are men. And the issue that people who are being grabbed don't even know what agency, they don't know who to sue. They don't know how to get redressed. And it's extremely dangerous, frankly, on both sides, because the people being grabbed have no idea whether it's even law enforcement. And so they might be reacting differently than if it was law enforcement. And that's also dangerous for law enforcement in that situation. And it comes from this odd idea that if you're in law enforcement, somehow you don't have to let people know that. So let's take a break and discuss his reasoning and what he said because it was a real first on this particular issue.

Mary McCord (38:13)

Yes, let's do.

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Mary McCord (38:41)

No problem.

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Andrew Weissmann (38:52)

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Mary McCord (39:41)

Welcome back. So I just want to kick off this discussion with the first paragraph of the judge's ruling. This is a district court judge out of West Virginia who is ruling on a habeas petition, right? This is a petition to be released from detention on the grounds that you're not being lawfully held. That's where so many of the detainees have had to file these habeas petitions. This is what has been overwhelming the federal district courts all across the country with thousands of these habeas petitions. And this is how he starts his opinion. I think it's very powerful. Antiseptic judicial rhetoric cannot do justice to what is happening across the interior of the United States. Agents of the federal government, masked, anonymous, armed with military weapons, operating from unmarked vehicles, acting without warrants of any kind, are seizing persons for civil immigration violations and imprisoning them without any semblance of due process. The systematic character of this practice and its deliberate elimination of every structural feature that distinguishes constitutional authority from raw force place it beyond the reach of ordinary legal description. It is an assault on the constitutional order. It is what the Fourth Amendment was written to prevent, is what the Due Process clause of the Fifth Amendment forbids. And he does Grant habeas here, but he says a lot of other things about why it is so important for there not to be masked unidentified federal agents, just apprehending people and detaining them with no due process.

Andrew Weissmann (41:16)

Mary, let's just focus for a second on who the plaintiff is, who is bringing this case.

Mary McCord (41:22)

Yes.

Andrew Weissmann (41:23)

What does he say and what does the court feel? Profound. The facts are because it's useful for people to understand. Now, let's just take the ICE agents and the head of ICE and the president's view that they're going after the worst of the worst, that these are rapists and murderers who need to be extracted from our country. Take that as one side. Now, let's talk about what the facts are here as found by the court.

Mary McCord (41:52)

That's right.

Andrew Weissmann (41:52)

According to the petition, the petitioner had not broken any traffic laws, but an officer pulled him over. When the petitioner asked why he had been pulled over, he was told by the officer that there was, wait for it, a plastic cover on the license plate of the vehicle. Yes, that's it. There is a plastic cover on the license plate of the vehicle. And that led to this person being ripped out of the car, extracted, arrested, and then shuttled around like a sack of potatoes around the country.

Mary McCord (42:31)

And not just ripped out of his car, but arrested by a group of masked men who got out of an unmarked black Ford Explorer without even a license plate. This person, a 21 year old immigrant who has a pending asylum application. He was brought here as a minor. He has work authorization, right. He should not be in detention. He is not the worst of the worst. He does not have a criminal record. He has apparently a piece of plastic over his license plate, maybe, if that's even true.

Andrew Weissmann (43:01)

But at least he has a license plate because guess what? The agents don't.

Mary McCord (43:05)

That's right. And this, the court, I think quite rightly says this is exactly the kind of thing that the fourth Amendment was put into our Constitution to prevent.

Andrew Weissmann (43:16)

One of the main things that the judge points out is that these people work for us, not vice versa. It's something I keep on reminding people. And I know, Mary, when you and I were in government, that's the way everyone felt. It's that we worked for the public. And this is what the judge says. Police wield coercive power on behalf of the state, detaining, searching and using force under color of law. And constitutional legitimacy depends on those powers being exercised openly and traceably. When masked, unidentifiable agents emerge from an unmarked vehicle and take hold of a person on an American highway. The seizure does not announce itself as the people's authority. It announces only power.

Mary McCord (44:07)

He also directly addresses this argument that the Department of Homeland Security has been advancing repeatedly that the officers have to be masked because they're getting threatened, they're getting doxed, they're getting swatted. And he basically says, when you take on the role in public service, just like I do as a judge, just like prosecutors do, you don't get to put a mask on. You take with that the fact that you might be criticized, you might have people who don't like what you are doing. And that's something that you take on when you take that role. You don't get to cover your face and be anonymous when you are actually doing the work to serve the public.

Andrew Weissmann (44:43)

And just to be clear, and I want to make sure everyone understands what Mary's saying, which is for those people who would act in a violent way or threaten violence to law enforcement or to anyone else, there are legal consequences. And that's the remedy.

Mary McCord (45:00)

Yes. Not wearing a mask.

Andrew Weissmann (45:01)

The remedy isn't, I'm going to terrorize the public.

Mary McCord (45:04)

I do think he also another quotable portion, again, he talks about authoritarian regimes have used masked security forces to intimidate and control populations. And in this nation's history, the Ku Klux Klan relied on masks to terrorize victims while concealing accountability. So for him, this is about accountability. Right. The Fourth Amendment was to ensure the rights of the people to the security and their persons and their places of living. Why it's not just about going into somebody's house. Right. It's about you have a reasonable expectation of privacy and you have a reasonable expectation that when the government intrudes on that, they're going to say, I'm the government and they're going to be clear about that. And he laments that what we have here looks very much like a secret police force. And he soundly says this violates the Fourth Amendment.

Andrew Weissmann (45:52)

Well, Mary, from this really interesting opinion, I'm sure that this is not the last we're going to hear about this case. So I'm sure we'll be coming back to it. Should we turn to Judge Cannon's latest? There's a long tortured history, but essentially there was a motion made by President Trump that was then joined in by his former co defendants, saying, don't release the second volume of the Jack Smith report. That is the report that dealt with the Mar a Lago facts. I have to tell you, I kept on flashing before me was like the position of Donald Trump in the Epstein matter, which is, we're keeping it all under wraps. We're keeping it all under wraps. On the day before Judge Cannon had set for the report to be released, she rules on this motion and surprise, surprise, she says that it is not going to be released. And basically sabre rattles and says that in her view, if Jack Smith didn't directly violate her order to not do anything with this report, he all but did that.

Mary McCord (47:09)

Well, she's specifically saying that back when I ruled that he was unlawfully appointed, that meant he should have stopped everything. And she really lambasts him for going ahead and doing a report that he was required by the special counsel regulations to write. Remember, met every special counsel. Right. Whether it's Robert, her investigating President Biden, whether it was Robert Mueller investigating Russian interference in our 2016 elections.

Andrew Weissmann (47:37)

John Durham.

Mary McCord (47:38)

John Durham investigating the investigators, the Russia investigators. Part of their authority under the regulations is that they then write a report, and then the attorney General decides whether that report should be made public or not made public. And if it should be made public with redactions, and all of the ones in these recent years, or maybe always, always have been released, sometimes with redactions. It is important.

Andrew Weissmann (48:03)

It's important because she says, I've never seen any case like this where the government would possibly be trying to have this report made public. Well, first of all, to your point, just make sure everyone understands Jack Smith, under the regulations, is required to write a report. That report goes to the Attorney General.

Mary McCord (48:22)

Yeah.

Andrew Weissmann (48:23)

It stays within the executive branch. The special counsel is not making it public. I don't know what on earth the judge was thinking, or maybe really wasn't focusing on the facts that she was thinking that she, as a member of the judiciary, can preclude Jack Smith conveying information within the Department of Justice. To me, just remember that is one of the things that she was slapped down by the 11th Circuit when she was saying, I don't want to allow the criminal investigation to go forward and I'm going to preclude certain communications within the executive branch. What she's doing now seems so akin to that, because I don't think she carefully understood what exactly Jack Smith is required to do under the rules or what jurisdiction she has to be precluding the Department of Justice completely. So I think that was a huge overstepping of her jurisdiction.

Mary McCord (49:22)

Agree.

Andrew Weissmann (49:22)

But then her trying to say this is absolutely unheard of that a report like this would be ever made public.

Mary McCord (49:30)

It's just wrong.

Andrew Weissmann (49:31)

Mary, can you think of any time where that hasn't been made public. Bill Barr made them public. Merrick Garland made public the report that Rob her, who had served under the Trump administration did of the sitting president, Joseph Biden, that was made public while

Mary McCord (49:48)

he was sitting as president.

Andrew Weissmann (49:49)

John Durham also did a report that was made public. She's like saying, oh, I'm protecting attorney, client and grand jury. That has nothing to do with anything.

Mary McCord (49:59)

Redact it then.

Andrew Weissmann (50:00)

Exactly. And so to me, her trying to distinguish what happened, that's like saying, I've looked long and hard and I haven't found any case, Mary, where Donald Trump has been required to do this in his second term.

Mary McCord (50:14)

That's right. That's right. You know, she says it's true. Former special counsels have released final reports at the conclusion of their work, but it appears they have done so either after electing not to bring charges at all, such as Robert Mueller, by the

Andrew Weissmann (50:27)

way, Robert Mueller didn't elect not to because the Department of Justice said you can't. And also to be clear, in the Mueller report, there are examples of all sorts. There are people who were not charged who were discussed. There were people who were charged who were discussed. There are people who were charged and convicted who were discussed. The one area where there was real concern was the people who were charged who were pending trial. Because there the concern was not to have information that could prejudice that trial and prejudice the jury.

Mary McCord (50:59)

And that is why more than a year ago, everyone agreed, including Jack Smith's team, that while the case was still pending against the co defendants, Walter Nada and Carlos de Oliveira, the report needed to remain non public, but that case was dismissed.

Andrew Weissmann (51:15)

Mary, can you just remind me what part of her decision addressed what the 11th Circuit, what her court of appeals said about the timing of that. I was reading it very closely, but I think I might have skipped that.

Mary McCord (51:28)

Well, I think we all might have missed that because it was in invisible ink.

Andrew Weissmann (51:32)

Yeah.

Mary McCord (51:32)

Let's just back up a little bit. So what happened is after the case was dismissed against all three co defendants, right? Trump, de Oliveira, Nauta, the case was

Andrew Weissmann (51:41)

sort of over with respect to Donald Trump because there was sort of a pending appeal on her decision that Jack Smith was wrongfully appointed because she was an outlier. She was the only judge who's ever ruled that way. There was an appending appeal, but all of that was stopped when Donald Trump won the election because you couldn't go forward because there's a Department of justice policy that you can't charge and prosecute. A sitting president. I know that very well because I worked on the Mueller investigation. So that never was going to be on the table. And then, of course, the co defendants, the case was dismissed once Donald Trump became president because he was like, I don't want you to prosecute my co defendants. So the case was over, but it's not like there was a determination on the merits of what happened. So it's not like the case was over because either guilt was found or guilt was not found. It just was all procedural.

Mary McCord (52:30)

So now the really interesting issue here is that then American Oversight and the Knight First Amendment Institute both tried to intervene after that to say, we need this report to be released. It's a matter of Freedom Information act and a matter of other legal reasons that they made to say, you know, right now all the parties in the case are on the same side. Right. The Department of Justice is saying, don't release it. Because now we're under the Trump administration. Trump is saying, don't release this Nowta. And D. Oliveira saying, don't release it. We're coming in to intervene in favor

Andrew Weissmann (53:01)

of release, which is sort of like the public. In other words, they're saying, yes, there's a First Amendment interest here in the public seeing the report from the special counsel.

Mary McCord (53:09)

Right.

Andrew Weissmann (53:09)

And very often a judge appoints somebody when you have the government and the defense agreeing. I've actually been in that situation where a judge has asked me to represent a view that is not before the court. It doesn't mean the court's going to rule in my favor. It's that the court, as a matter of fairness, wants to make sure they can hear, that's right, all sides of an issue.

Mary McCord (53:31)

Supreme Court does this. Anytime that the government says, we're not going to defend something, they appoint an amicus curi, a friend of the court, to represent the view in defense of the statute or whatever it is the government has decided not to defend.

Andrew Weissmann (53:44)

Paul Clement was appointed in the criminal case of Eric Adams. When the government came in and said, eric Adams wants the case over, the government wants the case over. And the judge said, okay, well, I see that you're all in agreement, but there may be another point here. And Paul Clement was appointed to do that because that's what good judges do.

Mary McCord (54:04)

That's what the adversarial process is. But rather than say, okay, I'll let American Oversight and the First Amendment Institute intervene to make these arguments, she sat on their motion for a year. They petitioned the 11th Circuit that said to her rule, by a certain date, or we're going to basically have to consider Mandamus against you. She waited, I think, all the way to that date.

Andrew Weissmann (54:26)

Fisher cut date.

Mary McCord (54:27)

Yes. Then denied the motion to intervene and said, but now that I've denied that, I'm going to give Donald Trump and Walton Otta and Carlos de Oliveira and the Department of Justice 60 days to file any briefs they want to file about whether I should or should not release these documents. So basically, like, rather than just release them now, I'm going to let you argue. And guess what? Amazingly, stunningly, all of them came in in total agreement that it should not be released.

Andrew Weissmann (54:53)

And thank God they had 60 days, because I'm sure they were really busy, because this is, like, a hard argument to make. So obviously it got extended and extended. Now, the tricky part is that what is pending in the 11th Circuit, the court of Appeals over her, is the

Mary McCord (55:11)

denial of that motion to intervene.

Andrew Weissmann (55:13)

Yeah, right. So those people who wanted to intervene, they have an opinion appeal of that issue. And the reason that's important is the decision we just talked about. There's no one to appeal that. Right. Because in that case, the judge has managed to make it pretty convenient that there's no other party who can appeal it. Because when the government and the defense are on the same side and she rules in their favor, the government's not going to appeal it, and the defendant's not going to appeal it. And by denying intervention of these institutions, she has precluded somebody from taking what's called a direct appeal of it. So that puts all of the eggs right now in this basket of the Knight Institute and their colleagues to try to get the 11th Circuit to say, you should be able to intervene and then hear the merits of the case about the release of this. And I want everyone to remember that the 11th Circuit has reversed Judge Cannon twice already in the investigative phase, finding that she was completely off base in terms of her legal analysis. I mean, there were really scathing decisions about how wrong she was. And the real message was that, you know, this isn't about politics. This is like the rule of law, and you are not complying with that. So it'll be interesting to see this is definitely not the last chapter, but from a First Amendment point of view, to the extent that their public does have a right to see this, if that's the way the court ultimately rules in the 11th Circuit, that means every single day that Judge Cannon has been sitting on this, and then every day that she said, oh, you have 60 days to hear this, and now this process of going up to the 11th Circuit, all of that time, every day, is an additional harm to the public's right to know under the First Amendment. And so to me, it is a bookend to what we're seeing on the Epstein files, where to this day the administration is violating the Epstein Transparency Act. And so you really have sort of these two bookends of lack of transparency by the administration even when there's a congressional statute directly on point.

Mary McCord (57:27)

Yes. So more to come. You can tell we're escalating our voices and accelerating triggered, triggered. So that must mean it is time for us to end.

Andrew Weissmann (57:37)

I have to say, Judge Cannon, at some point I just couldn't give her any respect as a jurist. I just am done. And you could hear it in the language I used, which was probably not the most felicitous, but it's really so upsetting to see with that. Thanks everybody for listening. It's great to talk to you, Mary. Remember, everyone can subscribe to MSNow Premium on Apple Podcasts and you can get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content.

Mary McCord (58:12)

This podcast is produced by Vicki Virgolina. Our associate producer is Rana Shabazzi, and Colette Holcomb is our intern. Greg Devins II and Hazik Ben Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer of MSNow Audio.

Andrew Weissmann (58:32)

Search for Main justice wherever you get your podcasts and follow the series.

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