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Main Justice
The Strategy of a Lawless Regime
00:57:59
Pam Bondi is out, SCOTUS hears birthright citizenship, and Trump keeps trying to restrict mail-in voting. Plus: Trump's suggestion of war crimes in Iran.
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A
Subscribe to MSNow Premium on Apple Podcasts for early access, ad free listening and bonus content to all of MSNOW's original podcasts, including the chart topping series the Best People with Nicole Wallace, why Is this Happening? Main justice and more. Plus new episodes of all your favorite msnow shows ad free and ad free listening to all of Rachel Maddow's original series including Rachel Maddow Presents Burn order. Subscribe to MSNow Premium on Apple Podcasts. Foreign. Welcome back to Main Justice. It is Tuesday morning, April 7th. I am Andrew Weissman and I'm here with Mary McCord, my co host.
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B
Hello Mary, hello and good morning. This is probably the brightest sounding I'm going to be.
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A
So this is another one of those days. So everyone sort of fasten your seatbelts. It's going to be a bumpy show in the sense that we have so much to to talk about. By the way, Mary, do you know that phrase about fasten your seatbelt, it's going to be a bumpy night. It's from a movie, not Airplane. That's a good guess. It's really, I think it's my all time favorite movie. It's a movie called All about eve from the 1950s. It's Bette Davis who says fasten your seatbelt, it's going to be a bumpy night. Well, I am not doing that justice, but I think we should get on with turbulence.
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B
Speaking of turbulence, we had turbulence at the Department of Justice last Thursday with the firing Pam Bondi. I could not have set it up any better. And you know, from my perspective, good riddance to Pam Bondi. But the problem of course is who and what is going to replace her. I mean, right now it's Todd Blanch and he is serving in the acting capacity. But then there are other names that are also being bandied about. What can't happen is he cannot be both nominated to be the Attorney General and acting in an acting capacity as the Attorney General at the same time.
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A
Mary, that's so.
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B
That's so law following, let's say.
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A
Yeah, if there was actual law that was governing this administration, I couldn't agree with you more.
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B
Yes, then we will. Now this already seems like ancient history, but of course, last Wednesday, some of the most monumental arguments of the term were had in the Supreme Court. That is arguments over the Birthright Citizenship Executive Order. That is an effort by President Trump to take away citizenship for babies of people who are unlawfully here and people who are here lawfully but temporarily, such as on student visas and work visas and asylum seekers and temporary protected status people. And so spoiler alert, I think most of us agree it did not go well for the government, which is good news. But the exact ruling and things like that, we can talk about what we saw stood out and what we are predicting. And of course, no one ever really knows until the Supreme Court tells us. And then next we will talk about something also that now seems like ancient history but is a huge deal. And already there are at least five lawsuits challenging it. And that is the president's executive order attempting to change dramatically how mail in voting would work, including by lists of people who are supposedly qualified to submit a mail in ballot. And the U.S. postal Service would be forbidden from even delivering a ballot from somebody who's not on the list.
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A
Federal control. Federal control. Exactly.
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B
Federal control. So we'll talk about those lawsuits and then we will do the potpourri of things that are each one important enough for an entire segment, but we just can't get it all in.
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A
But wait, there's more.
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B
Yes, we are going to start off with some pretty alarming developments with respect to what the president is saying about what he intends to do to Iran.
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A
And this is one where we are taping this on Tuesday morning. And by the time this drops, we will know more, although he keeps on moving the goalpost and that is a sign of, I think, weakness. But anyway, the president has said all sorts of things and of course he's sort of saber rattling. He has said, I'm just going to quote from two things and then as just before we got on air, he has one more that Mary you flagged for us. So he said if there is no deal, we're going to hit each and every one of their electric generating plants very hard, probably simultaneously. He also said Tuesday, that's today will be power plant day and bridge day all wrapped in one in Iran. There will be nothing like it. Three exclamation points, nothing like rejoicing over that.
- [04:41]
B
And then his post this morning starts out with a whole civilization will die tonight, never to be brought back again. I don't want that to happen, but it probably will. And he goes on from there. And I hate to read this because I hate to give it any air, but in short, these would be war crimes, wouldn't they, Andrew?
- [04:59]
A
Right. So we'll put in this in our show notes. There was a piece done by just security. In addition to many things that have preceded it, there was a piece that was published yesterday by two people with experience in this area and Let me just quote from it, Mary. It's very much in keeping with it, you said, which is such rhetorical statements, if followed through, would amount to the most serious war crimes. And thus the President's statements place service members in a profoundly challenging situation as former uniformed military lawyers who advise targeted operations. This is the author speaking. We know the President's words run counter to decades of legal training of military personnel and risk placing our war fighters on a path of no return.
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B
And, you know, importantly here, and this is another point made by the authors of that piece, is that this violates the protocol addition to the Geneva Conventions of 1949, which is something that the United States advocated for. Right? And it could not be any more clear. In Article 52, it says, civilian objects shall not be the object of attack or, or reprisals. Civilian objects are all objects which are not military objectives. Now, needless to say, civilians, right, are included within civilian objects. But when we're talking about power plants and bridges, what the protocol says very clearly in Article 52, and this is what's explained in more detail by the authors of the piece that you just referenced, Andrew, but it says attacks shall be limited strictly to military objectives insofar as objects are concerned. Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time, offers a definite military advantage. Now, one of the things the authors point out is that there are things like power plants and bridges that could be used for both civilian purposes and, and sometimes by the military. But you can't just say, okay, now we can bomb it. You have to look at sort of, is it one where there's a definite military advantage and is there proportionality? And have we considered what civilian casualties might be and how this would impact the civilian population? Not that we expect President Trump to be that nuanced, but you don't see anything like that in his post when he's just saying they're all going to be destroyed. And today in particular, that the civilization will be destroyed, right?
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A
Well, the civilization being destroyed, if you apply that to the test that's laid out by these authors, it's plainly a war crime if that is carried out. And actually they point out that the threat of a war crime is a war crime as well. I do think it's important to have the lens pulled back a little bit to put in context what is happening here, because as we've talked about, when the second Trump administration started, there was an effort successful to take out the career senior JAG lawyers, in other words, the senior military lawyers. Why would you do that? Well, one of the reasons you do that is that if you're doing what these authors are pointing out and what we just read to you, there is no career military person to bring that to the table. Or at least you reduce the risk of having somebody with that gravitas and experience and heft within the institution say, no, we can't do it. Then compare that also with the effort to indict six members of Congress by this Justice Department. This is going to be a great segue to talking about Pam Bondi, but obviously that emanated from the White House. That's not something that just happens. And that effort of having six members of Congress and those members of Congress all served this country in various capacities, either in the military and in the intelligence community or both. And what their sin was, among many other things, all being protected by the First Amendment was telling the military officers that they have a not just a duty, but they lawfully cannot follow unlawful orders. And so if you put those together, what we're seeing now, and this is why Just Security has another piece with points out that scores and scores and scores of experts on international law are all flagging what the administration is doing as being, to quote Tess Bridgman, flatly illegal. Was her quote, flatly illegal. And so I think you do have to sort of pull back and see this as a strategy to have a lawless regime.
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B
Yeah, I can't say anything that would foot stomp those points more clearly. I mean, obviously the potential injury to innocent people is devastating here, but also the injury to our reputation in the world. I mean, again, we pushed for these protocols after World War II for a reason. Right. And we have condemned this type of thing by other world leaders like Vladimir Putin.
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A
And Mary, if you were still the head of the National Security Division, if you couldn't stop what was happening, one of the things I could just hear you saying is, have you thought about the repercussions that are going to happen where we have created a world where we are the pariah, we are the Russians and the Hungarians, we are the people who are proceeding lawlessly. What do you think the repercussions are going to be to our country in terms of worrying about attacks on Americans? It's not like we've put the best and brightest in place at the very top of these agencies to be ferreting out and protecting us from that. And this is not an administration that is playing chess, it's hard to think that they're even playing checkers to be thinking about those long term consequences to our country.
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B
Well, you know, you said this sets up a segue. It does, because the people who would push back, whether it's in the Department of Justice or in the Department of Defense or in the Department of State or any of the interagency who will be impacted by this, those people are mostly gone. Right. Because what this administration did at the
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A
top, at the top, certainly at the leadership.
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B
Leadership, but even, certainly at least at the Department of Justice, not that those would have been the people who can dictate what the president does with respect to war, but certainly at the Department of Justice, it went much, much deeper than the top level. And that is one of the legacies, frankly, of Pam Bondi is really just the gut and hollowing out of the department of career attorneys with decades of specialized experience, including in areas like national security.
- [11:57]
A
Let me give you my two top lines about Pam Bondi and then I'm really interested to hear what you have to say. And we're going to also link to a piece that Mary wrote for Ms. Now. So here are my two quick takes. One is it's really important to remember, in my view, Pam Bondi has not been fired for the reason that Attorney General Sessions was fired. Attorney General Sessions was fired because while he bent, he did not break. He understood that the department had to be independent. And so he had recused himself from things that related too closely to the Trump campaign because he didn't think he was appropriate for him to have worked on things in the campaign and advised on the campaign and then be doing that while he's Attorney General. By the way, fast forward to Pam Bondi and Todd Blanche. I mean, they obviously have no compunctions whatsoever. Her sin was not breaking enough, not effectively enough being a sycophant. It was not that she was upholding for all accounts. Again, we don't know everything that happened behind the scenes. But my point is Exhibit A would be the six members of Congress. My second thing is that I don't view this as substantively important in that right now we are going to get somebody who is easily as sycophantic or if not more so. And I think right now, because there's a scramble as to who's going to get the position, there might be a race to the bottom as to who's going to be able to do something even worse and more sycophantic than Pam Bondi. And so this is, to me, moving deck chairs around. The issue is coming from the Oval Office. It is not coming from main Justice. I totally agree that main justice has been corrupted in terms of its mission and independence, and Pam Bondi has her own sins to pay for with respect to that. But that's big picture, not the issue. The issue is the Oval Office. The viewfinder needs to be turned, you know, up the street.
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B
Yeah. And so your first point is so segues to something that I've thought a lot about, which is partly what led me to write what I wrote, which is that in Trump one, right, there were lots and lots of Cabinet members fired, but they were fired for pushing back against Donald Trump. Right. And they can stand there, most of them, and hold their heads high even today and say, we were fired or we resigned or higher.
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A
A little higher. Right.
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B
Yeah. Because we refused to be a sycophant. Right. We refused to go along with things that we knew to be either unlawful or unethical or what have you. Both Kristi Noem, the former Secretary of Department of Homeland Security, and Pam Bundy were fired because. Not because they pushed back, but because they tried really hard to do everything that he wanted to do, and he just didn't like the way they did it. It wasn't good enough for him. As George Conway said when I was on Olive's show with him this weekend, they weren't corrupt enough.
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A
Right.
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B
They weren't extreme enough. They could not accomplish. So I often think, what are they sitting there thinking right now? I mean, they can't say, I was pushed out because I held a line, I had a red line, and I stood up for principles. No, it's. I was pushed out because I wasn't evil enough. I did not do enough of the things that Donald Trump wanted as effectively as he wanted them to do. And that's kind of what got me reflecting on when I testified over a year ago at Pambani's confirmation hearing, because there were three other witnesses testifying at the second day of her hearing who had all worked with her when she was the state Attorney general in Florida. In fact, one had even worked with her at the state D A level attorney's office. And she was by all accounts a pretty legit prosecutor with actually a very good record of going after the pill mills, Right, that had caused the opioid addiction and killed so many Floridians as well as people around the country. And one of these witnesses is a Democrat who had actually himself run in the AG primary. And lost. And then she brought him into her attorney general administration as a drug czar and took some heat for that from Republicans because he is a Democrat. And each one of them testified, and I liked them, I chatted with them. I believed very strongly that they truly believed the things that they were testifying to. They testified that she will always follow the evidence and the law without fear or favor. One talked about how much he was sure that the Department of Justice attorneys would love working with Pam Bondi. One talked about her reputation for standing up for the rights of victims of crime. And look what we have seen, Right? It's not without fear or favor that she did her job. She prosecuted or attempted to prosecute the President's enemies and gave favors to his allies. With respect to Department of Justice attorneys loving working with her, I mean, they've just been fired and forced out.
- [16:48]
A
Fired, forced out or left on their own because they couldn't stomach what was going on. And we've talked about how they're now advertising to try and fill slots. I mean, that's just unheard of. These are incredibly hard jobs to get normally and just be clear under any administration.
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B
And now it's like, have you got a law degree apply?
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A
Exactly.
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B
And then, you know, last, with respect to crime victims, yes. I've seen her sometimes out there touting the mothers of people who she will say, killed by an illegal alien. That's her term, not mine. Or she will tout the mothers of victims of drug overdoses. These are mothers of victims of crime. I don't want to denigrate her for that except the terminology she uses. But what have we seen her do with respect to the victims of Jeffrey Epstein's crimes? We saw her literally keep her back turned to them during the hearing just a couple of months ago where she was asked to acknowledge the victims and apologize to them, and she would not even look at them. So in every respect, I think she has utterly failed to live up to the standards that those three witnesses really did believe she would stand up to, as well as any standard. Anyone being not just the Attorney General, but any attorney at the Department of Justice should be be able to live up to.
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A
And the reason this is going to be such a thankless job for whoever takes it, and this could be a very bumpy confirmation hearing for whoever it is because there's so much ammunition to talk about. And that's one where if the Congress does their job and asks good questions and gets their act together, you know, you can imagine this administration is not looking to put front and center. The actions of the Department of Justice, including the fact that it's continues to be in violation of the law with respect to the Epstein matter because they're still not turning over documents.
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B
But never fear, Andrew. Remember, Todd Blanch has said the Epstein files should not be an issue going forward. So apparently they're not going to be. If you cannot tell the facetiousness in my voice.
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A
Yes, Todd Blanche and Hermeet Dylan and all these names floating around and everyone's jockeying for it. But like Todd Blanche, as my friends in the south would say, bless his heart because I mean, he's up to
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B
his eyeballs in the Epstein stuff. Right? So. And you don't get just to declare spic back. It's done.
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A
I know. I mean that confirmation hearing could be something. So that's just a risk I'm not sure this administration is going to take. The big picture is that all of this is emanating from the Oval. Mary, why don't we take a break because I know that you are deeply immersed in the birthright citizenship case. So why don't we take a break and then get into the subst in your take of the oral argument.
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B
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A
Stay up to date on the biggest issues of the day with the MSNOW daily newsletter. Each morning you'll get analysis by experts you trust, video highlights from your favorite shows. Voters wait in. Donald Trump's dismissal of their concerns has been weighing on his political standing. Updates on our latest podcasts and election coverage, plus written perspectives from the newsmakers themselves, all sent directly to your inbox each morning. Get the best of MSNOW all in one place. Sign up for msnow daily @ms. Now. Welcome back. Okay, we're going to talk about the birthright citizenship argument. That was about four years ago, wasn't it, Mary?
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B
It seems like it.
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A
Mary, you were outside the courthouse just behind Congress where the Supreme Court is just maybe first set the scene of what that was like and then we'll go into the discussion, the oral argument that day.
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B
Yeah. Now obviously I would have loved to been inside, but it was a gorgeous, by the way, gorgeous, gorgeous, sunny, beautiful day. And there were lots of different news organizations who'd set up Camp actually on the grounds of the Capitol. For people who are not familiar with D.C. the Capitol is directly across the street from the Supreme Court. And so you could see in the background of the shot, I was there with Ali Vitali, who was hosting that day, as well as Chuck Rosenberg. And in the background of the shot, you could see the plaza and the front of the Supreme Court. But maybe more importantly, you could hear the demonstrations going on, right? There was a rally, there were speakers, there was music playing, all in supreme support of maintaining birthright citizenship. The same birthright citizenship that was cemented into our Constitution by virtue of the 14th Amendment. And that, I think we all feel pretty good, will remain a core feature of our law. Another thing you could hear was the helicopters buzzing around because for the first time in our history, the President actually came and attended part of the argument. And that meant helicopters, right, going around, surveilling the area for safety purposes.
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A
But he only attended part of the argument.
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B
That's right. Now, I thought there is no way that Donald Trump is going to sit through what I knew would be a two hour argument. I mean, you are sitting still, the attention's not on you, and you get no fanfare, you get no ability to speak. And I thought, he's not going to want to sit there. Not to mention a lot of this argument, let's face it, would go over the head of many people. And also I would include among that the President, because he's not a lawyer, he's not steeped in the legal issues. He stayed through the Solicitor General's argument, that's the one arguing for the executive order. And then he got up and left, I'm told shortly. In Cecilia Wang's argument, she's the one representing babies who would lose their citizenship or would not be able to have citizenship if this were allowed to go into effect.
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A
So I did find it unusual that the President would show up. Not just because it obviously was unusual, but if you and I were in the White House Counsel's office or just an advisor to the President, I'm not sure it's a good thing. In other words, if the message is even unintentionally, and I'm not sure here you can even say it was unintentional. But if the message is like, I've got my eyes on you, and it's supposed to have some kind of fear factor, that's brought to the table, that's not how our Constitution is supposed to work. That is how I think Donald Trump works. And so I do think it is a manifestation of the larger problem we're seeing about the Executive branch not viewing itself as part of three branches of government that have checks and balances with the idea that the executive branch is going to take, take, take, take, take as much as it can in complete distinction with our first President of the United States, who stepped down precisely to set the model of restraint, set the model that you have three branches of government. So I just do think that the symbolism of his going he speaks with his actions there in a way that I thought was inappropriate. But what did you think about the argument?
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B
First of all, they were tough questions asked of both sides, but I thought that overall, Mr. Sauer, the solicitor General, has a much greater hill to climb to convince enough judge Justices to uphold this executive order. And my prediction is probably like a 7 to 2 ruling against the government, with Justices Alito and Justice Thomas perhaps siding with the government, although I'm not even 100% sure about that. The legal arguments are there were some interesting, kind of like, hypotheticals, but the bulk of the legal argument was really about what does subject to the jurisdiction there to mean. And I just want to read the key sentence, the citizenship clause from the 14th Amendment, Section 1. It says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. And so because the plain text says all persons born in the United States, there's nothing really that the government can argue to get out from under that part of the text and say this actually doesn't apply to all persons born here. So instead they have to look at and subject to the jurisdiction thereof and say that is a limiting principle. And their argument is that that doesn't just mean you're subject to the regulatory jurisdiction in the United States. You're here, you're subject to our laws. They said that's not what that means. That means that you have to be domiciled lawfully in the United States with an intent to remain here, and your allegiance has to be to the United States and not to any other foreign power.
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A
So can I just give you two hypotheticals there? What if you are a dual citizen or. The issue that certainly was on Justice Gorsuch's mind because it's such an issue dear to his heart, and he's written a lot on this, it seems to be at the forefront for this Court is Native Americans. So how does this all deal with those two situations? And then finally, isn't there an older Supreme Court case that dealt with this Already that seems to be very favorable for the ACLU's position, the position that birthright citizenship is birthright citizenship. And you can't read in all of this stuff that the administration wants to. So I think I've given you two and a half questions, but that's okay. You're an appellate lawyer. You're used to this.
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B
So the challengers to this, and of course, remember, ICAP also had represented babies and their mothers back in Casabi Trump, the first birthright case that went to the Supreme Court.
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A
And ICAP is.
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B
That's my day job Institute for constitutional advocacy and Protection. And that was limited to the scope of universal injunctions.
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A
Yeah.
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B
So we have been deeply involved in this and our case is currently in the 4th Circuit state, the Supreme Court case, for obvious reasons. There's no reason for the Fourth Circuit to rule when the Supreme Court's going to tell us the answer is. But our position and the position of the ACLU representing the babies, and I think the position, frankly, of historically most people in America is that the concept of Jews solely birthday on the soil came from England. It was the English common law birth on the soil. Anyone born on the soil, even to foreign parents.
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A
And what's the phrase you used?
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B
Jus soli or jus soli? It's Latin, and I don't really do Latin except for that in England. Right. Birth on the soil meant you had an automatic allegiance to the king. And that is what came, as they say, when you came to America, the founders brought the old soil with it. Right. They brought this concept of juice solely, which was always what was just expected of in terms of birthright citizenship. And that is in contrast to jus sanguinis, which means birth based on parentage. Right. That was not what was accepted here. And this is something that Justice Barrett questioned John Sauer about at some point during the argument. So in jus solely, there are some exceptions, and those were exceptions at the founding, and those included the exceptions for like foreign ministers. So think about right now, right? If you're a foreign diplomat, you have some immunity from our laws, Right. You have to obey traffic laws and stuff, but you do have some immunity from our laws. So foreign ministers, people on foreign ships at port, hostile occupying enemies on a territory, they didn't get citizenship, their babies didn't get citizenship. And Indian tribes, and that's because, remember, Indian tribes were already here and they had their own, essentially their own sovereignty.
- [29:11]
A
They still have that history carries through. And it raises all sorts of legal issues. But just to be clear, that is one where.
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B
That's right.
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A
There's a different category, and I think that's one where the ACLU was making that point, which is that that is sui generis, just to throw in more Latin. It's sort of a unique circumstance.
- [29:29]
B
That's right. And it has been since changed by Congress. Right. So Congress passed a law to provide citizenship to American Indians born here in the US So they have birthright citizenship now by statute. But the 14th Amendment was not interpreted to apply to them for these reasons we've just been discussing. And this is where Justice Gorsuch asked some interesting questions, said, put aside this statute based on your interpretation. John Sauer, of legal residence here, legal domicile here with intent to remain, wouldn't Indians, even under the 14th amendment, have citizenship? And he said, yes, I think so, but I haven't really thought that much about that. I need to think some more about that.
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A
By the way, what's with these people showing up at the Supreme Court and saying, I haven't really thought about it. We talked about that the other day, which is, if you don't have a good answer, I don't really think the way to go is to say, I haven't really thought about it. I just think you have to fess up and give something better than that,
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B
Especially when, you know, you've had three, four, five moot courts and somebody has asked you this.
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A
You're the Solicitor General of the freaking United States. You haven't thought about it.
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B
And it's a clear question, because this whole. The exceptions are a big issue. In fact, the very beginning of the argument, one of the things that the Chief justice asked John Sauer was there's these kind of quirky exceptions. But you're trying to expand these quirky exceptions, like for foreign ministers and hostile aliens. You're trying to expand them to all people who are here unlawfully. And where does that come from? And that's another important point. And this is also something that came up multiple times. We did not have an immigration act that criminalized crossing the border unlawfully or made people deportable if they were here unlawfully. That didn't exist at the time of the founding. Immigration was not an issue because guess what? We were building a freaking country. We obviously had to have immigrants. Right?
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A
Right. Yeah. There's another doctrine in the law which is, and we've talked about the major questions doctrine, but this idea, there's a Supreme Court case where people talk about the fact that either the Framers or Congress does not hide elephants in Mouse holes. And so that sort of goes to this idea that. Wait a second, you're relying on these really one off exceptions, the ones that Mary was outlining to then say we're driving, I'm not even sure you can say a truck through it. I mean, you're driving an entire battalion through this. And you're asking us to believe that the framers didn't think about that enough to make it clear what they were saying. I took that from the Chief and from Justice Gorsuch as very, very problematic questioning of John Sauer's position. It is fair to say they read lots of questions about line drawing. They had lots of questions from just solido about the policy. Although odd for Supreme Court justice who's supposed to believe in originalism, hard to see why we're talking about policy. In other words, from a policy perspective, if you were Congress, you might have like, oh, we should do X or we should do Y.
- [32:36]
B
One of the policy points John Sauer makes is that, oh, this explosion of birth tourism, people who come here just to have their baby and they go back home, we need to stop it. And the Chief justice says, having asked you and talked a little bit about this, do you agree that has no impact on the legal analysis before us? And General Sauer says, and because he's the Solicitor General, he's referred to as General Sauer during these arguments. He says, of course, we're in a new world now, as Justice Alito pointed out to where 8 billion people are one plane ride away from having a child who's a US citizen. And Chief Justice Roberts says, well, it's a new world, but it's the same Constitution. And that was one of the only laugh moments of the entire argument, which was really good, which is like, this doesn't matter that now we have this issue of lots of people trying to come here. We're still interpreting a Constitution.
- [33:27]
A
Right.
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B
And this is where your question about the 1898 case, I think really comes into play. Because guess what? The Supreme Court did have an opportunity to interpret the 14th amendment.
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A
1898. And the 14th amendment was passed right after the Civil War. So we're talking about the generation where people had memories and knew and lived through the passage of the 14th Amendment. We're not talking about 20, 26, and so much closer in time to understanding what this would be about. And so what did that case hold? And I'm just going to give you a quick spoiler alert where Justice Gorsch had said essentially to the government, I'm not sure. You should really be pushing your position on that case because it doesn't seem to support you, to be clear.
- [34:14]
B
And this, I don't disagree with a portion of what the government says. The 14th Amendment was post Civil War, a response to a terrible, terrible Supreme Court decision called Dred Scott. Right. Which said that enslaved people, including freed slaves, were not U.S. citizens. And what the government's position is, it's limited to that. And that's what President Trump keeps saying. And there's absolutely nothing that would suggest it was limited to that and that it didn't mean what it says, which is all persons born in the United States and subject to the jurisdiction there do are citizens.
- [34:48]
A
The Supreme Court's never going to say that because there's a number of conservatives on that court who believe you look at the text and so whatever you happen to have motivated you to pass a constitutional amendment, that's all good and well, but they're going to look at what was the actual language that was passed. And they certainly didn't limit themselves, if that's what they intended. That's not the language you would use.
- [35:12]
B
And the case of Wong Kim Ark was actually about a child of Chinese immigrants and whether in fact he was a US Citizen or not. And remember, there was a big anti Chinese movement as well within this country. There were the Chinese exclusionary acts and things like that. And this is why John Sauer wants to rely on this case, because what the way the Supreme Court was framing the issue was that a child of parents who were domiciled in the United States but were subjects to the emperor of China, whether their child would be a citizen. And what had happened is he had left at some point and came back. And that's when this issue about whether he was actually a citizen came up. So because the Supreme Court teed up the question as a child of parents domiciled here, that is where the government grips this term. Domicile decides, it is key to citizenship, that the parents must be domiciled here and then imports its own definition of domicile lawfully present with intent to remain. And then they say that shows allegiance. But the other part of the way the Supreme Court phrased the question in Wong Kim Ark was domiciled here, but still subjects of the Chinese emperor, which means they had mixed allegiance, Right?
- [36:28]
A
Exactly.
- [36:29]
B
At any rate, the idea that Wong Kema Arc was not a citizen was rejected by the Supreme Court. And Justice Horace Gray wrote the opinion to the point we were just making. He did agree that the main purpose of the 14th Amendment was to establish the citizenship of former enslaved persons, black people. But he went on to say that citizenship is not restricted by color or race. Instead, he wrote that the amendment affirms the ancient and fundamental rule of citizenship by birth within the territory in the allegiance and under the protection of the country, including all children here born of resident aliens. So you can see why the challengers say this case is completely what helps us, supports us. That has been the law of the land for over 125 years. Certainly when we first got our nationwide injunction, the Court said not only does the text of the 14th Amendment, but the Supreme Court's decision in Won Kim Ark and history shows citizenship by birth. And that's why Justice Gorsuch questioned John Sauer the way you indicated, Andrew, because this notion that this helps the government, the justices were finding that really hard.
- [37:38]
A
One final question on this. Congress has passed a statute and has passed by statute protections of citizenship, including. You made reference to for Native Americans. Is it possible that the Court ducks the constitutional issue. Is it possible that they decide this on a statutory basis to say that the President can't do this because it's in conflict with the statutory rights created by Congress?
- [38:08]
B
Yeah. So this is interesting. And that question was asked of John Sauer and asked later, I think, of Cecilia Wong, which is normally we don't resolve constitutional issues if we don't have to, and if there's a statutory basis, we can resolve it on those grounds. And of course, John Sauer said, if I'm going to lose, I'd rather lose based on the statute and not on the Constitution. But that's after he has already argued that the statute and the constitutional provision mean the same thing. And that's when he's also been questioned. Well, if they mean the same thing and Congress, by the time it passes the statute in 1940 and then again 1952, it's had plenty of years to live with Won Kim Ark. And if it thought Won Kim Ark and citizenship by birth was wrong, wouldn't it have said something different in the statute instead of using essentially the same words that were used in the constitutional amendment? And frankly, John Sauer just didn't really have a persuasive response to that. So I think it is unlikely that they'll decide it based on the statute. But they could. Let's assume they vote for the government, and I don't think they will. That would be saying it has never applied to children of undocumented immigrants or people lawfully, but temporarily here, which would mean tons of people would not be citizens. So Sauer's answer to that is, oh, it's prospective only. And one of the questions was, well, that's what you say, but what if some future administration says it's not? That is where Congress really could say we are giving everyone in the past citizenship. Right. So there are things Congress can do to expand it. They just can't take it away. Yep.
- [39:35]
A
Why don't we take a break because we're going to now talk about Trump's executive order on mail in voting and the issue about whether that conflicts with the Constitution and Congress's power. So it's a really good segue to dealing with, again, an executive order. But let's take a break and come back and talk about what the executive order said and what sort of issues are legally.
- [40:10]
B
Day or night. VRBoCare is here 247 to help make every part of your stay seamless. If anything comes up or you simply need a little guidance, support is ready whenever you reach out from the moment you book to the moment you head home. We're here to help things run smoothly because a great trip starts with the right support. And hey, a good playlist doesn't hurt either.
- [40:39]
A
Stay up to date on the biggest issues of the day with the MSNow Daily Newsletter. Each morning you'll get analysis by experts you trust, video highlights from your favorite shows, Voters weighed in Donald Trump's dismissal of their concern. Concerns has been weighing on his political standing. Updates on our latest podcasts and election coverage, plus written perspectives from the newsmakers themselves, all sent directly to your inbox each morning. Get the best of Ms. Now all in one place. Sign up for Ms. NOW daily at Ms. Now.
- [41:13]
B
Welcome back. Picking up where we Left off. On March 31, the President signed an executive order called Ensuring Citizenship Verification and Integrity in Federal Elections. And this executive order is part of what he has been talking about wanting to do for some time now, which is federalize the elections. But that is not what the Constitution says. And also people might be like, hang on, am I having deja vu? Didn't the president try something like this already? And didn't the courts stop it? Yes, you are having deja vu. And he did try to take over in many ways. He tried to have a citizenship identification requirement, many, many other things back early in the administration that's been halted by lots of courts. And now he's trying again. So this one is a little different and it's very complicated, I think completely unworkable, even if it weren't unlawful. But what does it do, Andrew?
- [42:10]
A
Sure. So I'm going to start in reverse order. Just pick up where you left off about the prior instance of the second Trump administration trying to do something. And I'm going to read from Judge Kola Catelli's decision just so it frames the discussion, so that when we get to what this new executive order does, you'll have that as a backdrop. And this is what she said. These consolidated cases, the ones that she was deciding, are about the limits of the president's power to dictate the rules of federal elections. The framers of our Constitution recognize that power over election rules could be abused either to destroy the national government or to disempower the people from acting as a check on their elected representatives. And she cites Alexander Hamilton in federal 59. Accordingly, they entrusted this power to the parts of our government that they believed would be most responsive to the will of the people, first to the states and then in some instances to Congress. And this is the key. They assigned no role at all to the President. Let me just repeat that. They assigned no role at all to the president. Put simply, our Constitution does not allow the president to impose unilateral changes to federal election procedures. And then this is a very, very long and detailed decision striking down or declaring void or improper various aspects of the executive order that was being challenged. That's like a really good backdrop to this new executive order. And that is, as you said, it's entitled and we'll put it in our show notes, ensuring citizenship verifications and integrity in federal elections. And there's sort of two pieces as I read it. One is dealing with creating essentially a validation process where the states, in order to give out mail in ballots, have to validate their list of who they think can vote by giving their information to the federal government. The federal government then uses their giant databases in some unspecified way to determine who is and is not allowed to vote. By the way, this is all in aid of what the non existing evidence handful of people. Right. Just to be clear, there's no evidence of either widespread fraud or even not widespread fraud.
- [44:52]
B
Yes.
- [44:52]
A
And there's zero evidence of fraud to the tune of being material, meaning that it changed the election. There's been no evidence of that, even with the so called 2020 election, where every single case that was brought was rejected on to the extent they were claiming material fraud in the election. Indeed, at times the plaintiffs making those challenges actually had to say, we're not even claiming that. So that one thing, which is that the feds essentially under this executive order are keeping control over who gets a ballot and the criteria.
- [45:26]
B
Just hearing you to articulate it after you just teed up the first executive order, it's like, oh, is this just an end runaround? You know, you got struck down on all states are going to have to require proof of citizenship. So you know what we'll do now? We'll do it, say the feds will come up with the list of people who are.
- [45:42]
A
Yes.
- [45:42]
B
I mean, it's just a total end run.
- [45:44]
A
Yes, exactly. And so the second, as you would say, thing two. So thing one is this idea that. Which by the way, I've totally stolen and I use it all the time now. I love it. And I use it in class and I use it on air and it works. Thing one, thing two, love it. So thing one is this idea that federal control. And I love the way you put it, which is like, okay, we're going to actually have control over who gets to vote. Thing two is basically saber rattling of a different sort that just says, I want Pam Bondi and now whoever else is there to be really on top of potential crimes. So if the state actually sends out something that they shouldn't be sending under this executive order, if they are using the mails to commit fraud, I want you to be all over that. Like a duck on a June bug. And I don't think the phrase duck on a June bug appeared in the executive order.
- [46:40]
B
I'm looking, I'm searching right now.
- [46:42]
A
Where search for duck and June. Okay, so essentially that's like, if you don't do this, you could end up being like the six members of Congress where we're going to make up some crime that you've committed. Just to be clear, for it to be a crime, it would have to be, wait for it, intentional.
- [47:01]
B
That's right. In fact, they list the executive order lists like 1, 2, 3, 4, 5, 6, 7, 8, like about 10 crimes. Maybe you could be prosecuted for one of these 10 crimes. Also, we maybe will withhold federal funds if you do anything that we think is not in compliance with this order right now.
- [47:17]
A
This is one where it's hard to find this part totally improper because it's saber rattling. It's like, we want you to be on top of this and it has this terrorizing effect. Now that alone it could be struck down as sort of. It's chilling. It's an improper chilling effect. When you put it together with thing one. To me, that's the improper part of
- [47:38]
B
thing two, which is what the challengers are saying, like the 23 states who have sued and others. Like, this is all an effort to intimidate and coerc state officials to removing anyone from their voter list who is not on our voter list or on the list now that you haven't gotten to yet, like, of the Postal Service voter list. This is really wacky to me. Now we're giving the Postal Service all this responsibility.
- [48:03]
A
Right. Which is like, not exactly their bailiwick or their expertise. But also, this is about mail in voting. The president just voted by mail. And the reports are, so did his wife and so did his son, his youngest son.
- [48:17]
B
Well, he said he can. It's because he can because he's the President of the United States and he can. That's right. And so can tons of other people because that's what the state laws allow.
- [48:25]
A
But you know what? I think we're making a fallacy here. This is what we're not. I think, Mary, you and I don't understand. We're assuming that the law should apply equally, whereas the theory here is, well, I can because it's me and you can't because it's you. So I do have a question for you. So there are these five cases, as you said, the states are suing. There are voting groups that are suing. I know one of the cases, the judge said we have to make this a front burner item. And I think that there are papers due later this week on it. But shouldn't we be expecting to see some decision from the court? Shouldn't we be expecting at least a temporary restraining order, preliminary injunction decision up or down on this relatively soon?
- [49:14]
B
Yes. This has to move fast because if the government actually thinks that they're going to go through this whole process of compiling these lists and the executive order talks about the list then being distributed to the states no less than 60 days before an election. And, oh, the state, by the way, if they want to file some sort of like, objections to individual people that they think, oh, no, this person is really a citizen or this person that they can do that doesn't say what the feds are supposed to do in response to that or what the timeframe is. But you can see how all of this, we have an election coming up in just months, and there's just really no way that this could possibly, even if it were upheld, is not in violation of the Constitution or statutory laws. I just can't see any way that this could be workable in time for this election. And that just bring up another principle, the Purcell Principle, which is that you don't muck about and change the rules of elections too close to the elections, or it could cause mass voter confusion and things like that. And that issue came up, remember, in the Supreme Court argument that we talked about a couple of weeks ago, where the issue was for mail in ballots, can they be counted if they're received after election day, even if they were postmarked by election day? And I believe Justice Kavanaugh, maybe some others, questioned, if we rule in your favor government, could that even be implemented in time for this election? And that is actually a much simpler question in many ways, or much simpler implementation issue. Not simple, I don't think, but simpler than what this executive order would require.
- [50:46]
A
So, Mary, one of the things we said we were going to do is highlight some things that are on our list. There are three. Let me just do the first one, which is we had talked about Judge Boasberg. He had quashed two grand jury subpoenas that were served on the Federal Reserve, and he had a motion by the U.S. attorney's office to reconsider. And it is a thing of beauty. Let me just give you a little strategy lesson here. If you've got a judge like Judge Boasberg, I'm not sure you wanted to make this motion because it is such a beautiful opinion. And he lays out exactly what he had been saying and what is wrong legally and factually, with what the government's position is, so that if they appeal it, there is an absolutely crystal clear record of what he had said. And of course, he denied the motion to reconsider and really pointed out how he got the law. Right. He said, you don't even challenge what I'm saying. The law is. You actually agreed. Don't pretend that you didn't. You any quotes from where they said you agreed. Exactly. And then he says, well, now you have to turn to the facts. And he said, you know, he just said it's threadbare. And one of his best lines I thought was, he said, you still do not point to any evidence of fraud.
- [52:10]
B
That's right.
- [52:11]
A
And so when I'm looking at what your true purpose is and whether this was abusive, it helps to see that you had some legitimate basis to be doing this. And you still have not pointed to any evidence of fraud. So he has rejected that. So the next step would be for the government to appeal that. But I have to say, the record is extremely good. I mean, it is better now because of this new opinion.
- [52:37]
B
Yeah. On the flip side of the political Prosecutions that we've seen out of this Department of Justice, we've seen the favorable treatment of allies. Last week, we talked at length about Michael Flynn getting paid $1.25 million in a lawsuit brought based on him being maliciously prosecuted, which really has no merit at all. Nevertheless, he was paid out. Well, just this week, the Supreme Court granted cert and remanded a case that Steve Bannon had brought challenging his conviction for lying to Congress, for contempt of Congress. Now, he had been convicted. He had served his sentence, his conviction had been upheld by the D.C. circuit, and he was appealing that. Now on a petition for cert to the US Supreme Court in February, in came the Solicitor General saying, we now agree that cert should be granted here because we have filed a motion to dismiss in the District Court below. Dismiss this case as. Here's what he said. The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interest of justice. The government has accordingly lodged a motion in the District Court under Federal Rule of Criminal Procedure 48A to vacate the judgment and dismiss the indictment with prejudice. The government therefore requests that the court, the Supreme Court, grant the petition, vacate the judgment below, and remand the case to allow the District court to grant the Rule 48Amotion. So even though all this has happened, they've decided we now should dismiss the case. The Supreme Court, in a very brief order without any rationale granted, cert vacated the judgment of the D.C. circuit, right, which it affirmed the conviction and remanded to the D.C. circuit, quote, for further consideration in light of the pending motion to dismiss the indictment. Now, they don't say the circuit must remand to the District Court with directions to dismiss, but to consider the motion dismissed. And this hearkened me back again to Michael Lynn, right, where this whole question of dismissal went up to the D.C. circuit on mandamus, etc, but all went away after he was pardoned. So it is not crystal clear what the judge in the District Court will ultimately do, but the leaning there is very much that he will be dismissing this.
- [54:50]
A
Yeah, well, the law is very, very favorable to the government because the government is viewed, particularly with this Supreme Court, as having almost exclusively plenary power authority. Right, exactly. And this was an issue that came up at the end of the Trump first term with respect to, as you said, Michael Flynn and this idea that we can just get rid of cases. So this is one where, hey, we want to have a criminal investigation, as you said, of Jerome Powell and the Fed, even Though it's now been determined to be baseless by one federal judge. But a case where there's actually been a criminal conviction and it's been affirmed on appeal that we're going to get rid of, and what's the difference who's doing the bidding of which person?
- [55:32]
B
One's a friend and one's a foe.
- [55:34]
A
Yeah, exactly. So this is pure the laws for the and not for me. There is a final case which has to do with the ballroom.
- [55:42]
B
That's right.
- [55:43]
A
Judge Leon issued this and put a stop temporarily to any construction proceeding with respect to the building that's going on. It's too late to stop the actual destruction of the East Wing. And he then stayed his decision for 14 days to allow the government to appeal. So very proper of him to do that. And let me just make sure people understand, the reason this relates so much to what we have been talking about, particularly in birthright citizenship, is that Judge Leon starts with the Constitution and says. And I'm going to read the quick part of his decision, he says, together. And now he's referring to different clauses in the Constitution. Together, the property clause, the Appropriations clause, and the District clause. These are all parts of the United States Constitution establish Congress's primacy over federal property spending and the District of Columbia. Indeed, defendants have declined to argue that they have any inherent constitutional authority to build the ballroom. In other words, he's saying, look, constitutionally, what happens to federal property is a matter left to Congress to decide, not the executive. And he says, you are just there essentially as a renter.
- [57:04]
B
That's right.
- [57:04]
A
It is not your property. You may think of yourself as a king. This is me now speaking, but you're not. You were there as a custodian, but this is something that belongs to the public and to citizens. And it's Congress that has constitutional authority. And so the only issue is whether Congress has somehow delegated this authority to you by statute. By statute. In other words, as Congress said, you can do this.
- [57:31]
B
So here he says, no statute comes close to giving the President the authority he claims to have, full stop.
- [57:38]
A
Meanwhile, we've got the complete destruction of the East Wing. And the route that the United States is taking now to deal with a little out that Judge Leon gave them is he said, you know, I'm dealing with the creation that you say you're allowed to do to build this ballroom, but I'm not dealing with sort of national security concerns. And that wasn't really brief to him, and he's not addressing it. But that is now why you were hearing the president say, oh, wait, wait, wait, the ballroom is just surplusage. Right.
- [58:15]
B
It's what's underneath the ballroom.
- [58:17]
A
Right. It really was all about this national security issue, which by the way, I guess we never bothered briefing to, to the district judge. But that's why you're seeing this change of tactic to say, oh, from a national security perspective. And as you, Mary, know, you and I both teach national security. There's a lot of deference in the courts when something comes up as a national security matter. But that doesn't mean you had to have completely eradicated the east Wing and build this new ballroom again. It goes to this issue of pretext. And so we keeping an eye on that because there is an application now by the government in the D.C. circuit to block what Judge Leon has done.
- [58:58]
B
Yes. Much more to come. So, I mean, listeners, be glad you're not getting quizzed on this episode because we covered a lot of territory.
- [59:07]
A
Oh, wait, there's no test. We're not gonna have a test.
- [59:10]
B
Yes. Maybe we should think about that.
- [59:11]
A
Okay. Yeah. Well, this is what happens when you have two people who teach during a podcast. I'm sure most listeners are like, tap me out. Exactly. Thanks everybody for listening. And remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and and other MSNow originals ad free. You'll also get subscriber only bonus content. And as we mentioned, we are now available on YouTube. Check us out there. Head to Ms. Now main justice. And Main justice is one word, so that's Ms. Now Main Justice.
- [59:51]
B
This podcast is is produced by Vicki Bergolina and Donnie Holloway. Colette Holcomb is our intern. Bob Mallory and Hazik Bin Ahmed Bered are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [60:09]
A
Search for Main justice wherever you get your podcasts and follow the series.
- [60:31]
B
Day or night. VRBoCare is here 247 to help make every part of your stay seamless. If anything comes up or you simply need a little guidance, support is ready whenever you reach out. From the moment you book to the moment you head home. We're here to help things run smoothly because a great trip starts with the right support. And hey, a good playlist doesn't hurt either.