Andrew Weissmann (4:58)

So Mary, we also have a treat for people. If you are a listener to Main justice, you're going to be able to hear Mary McCord because we're going to get the feed and we're going to put it on the podcast and so people will be able to click on that and be able to listen to it.

Mary McCord (5:15)

That's right. And that's if they miss it tomorrow because I do believe this is going to be broadcast live. It's going to be, I think a little bit in the same sort of style as the House Select Committee hearings. In fact, the second panel is a reunion of the House Select Committee. So it should be really chock full of information. And this is all why we're recording today on Monday instead of tomorrow on.

Andrew Weissmann (5:36)

Tuesday, because one of us is otherwise engaged.

Mary McCord (5:39)

Otherwise occupied. That's right. Can't be in two places at one time. Although I am so much. And I don't know if you're a Harry Potter fan, Andrew, but I need one of those time Turners that Hermione had where she could like be one place and then turn time back and be in another place in the same time. I've been waiting for those to get on the market, and that just hasn't happened yet. So that will help immensely when that becomes available. And then finally, we want to revisit something that we teed up last week. Andrew, you talked a lot about when we talked about where things stood in the Abrego Garcia case, that there was some mysterious sealed opinion that we were trying to kind of guess about. And this is in the context of the judge putting off the trial and saying, we're going to have an evidentiary hearing on the vindictive prosecution motion. And we now have had that opinion unsealed and we can talk a little bit about that. But let us start with Venezuela. And I guess I do want to say next week we expect to have a real expert in international law. You and I dabble in it. We know something about it, given our prior rules, but we are not true experts in international law. We will have a real expert on to dive into that. But we can certainly lay out sort of from the international law perspective what some of the issues are. And then obviously, we want to talk about this indictment. What does that mean here in the United States? Originally, Maduro was indicted, not his wife, but he was indicted with others back in 2020. That case was assigned to Judge Hellerstein. This is a technically a superseding indictment, so it would still be Judge Hellerstein's case. Whether he keeps it, I guess, will depend. He is getting up there in years, but he is an extremely competent and experienced judge.

Andrew Weissmann (7:23)

So I wanted to start with something that you said, Mary, in teeing this up, you had talked about. The president has said divergent things about this on the one hand, and it's relevant, by the way, to the legal analysis. In part, yes. And there's domestic law issues, there's international law issues, but it's not totally dispositive. But the president has said and others have said that this was just a law enforcement mission. This was just somebody who was under indictment for drug dealing and for weapons charges. Those are the two types of charges that Both Maduro and his wife and others his son are facing. And this is just an effort to bring them to justice. Secretary of State Rubio actually said these are two fugitives, referring to Maduro and his wife. Technically, maybe that applies to Maduro because of the prior indictment. It doesn't apply to her because she had just been indicted. She's hardly a fugitive, be that as it may, but there's one hand saying this is a law enforcement mission. But on the other hand, you have the president saying, we're going to run Venezuela. Well, those are completely opposite. I'm just going to give a quote of one thing that the President said, quote, we're going to have our very large United States oil companies, the biggest anywhere in the world, go in, spend billions of dollars, fix the badly broken infrastructure, the oil infrastructure, and start making money for the country. And so that is quite different than a law enforcement mission, even if it is a, quote, law enforcement mission. And you're doing this because you are really concerned about drug dealing and you want to make Americans safe. Involving drug dealing with. It is impossible to not see the irony that the President of Honduras was charged and convicted in the exact same district, the Southern district of New York. They brought the case, they tried the case, the jury convicted that case. The president has said, well, that was just a railroad job. I was told that that guy was really innocent and he was just being railroaded by the same office.

Mary McCord (9:42)

And pardoned him. Let's not.

Andrew Weissmann (9:44)

Yes, that's what I mean. And pardoned him. And pardoned him. Sorry if I missed the lead. And so that's the exact same office that has charged Maduro, his wife, his son, and is bringing this case. And so it is not just that. How are you against drug dealing? That hurts America when you're pardoning one but arresting another. But it's the exact same office. So to me, the it's just a law enforcement mission and it's just about drug dealing just doesn't pass the straight face test. And we now have the president, in case there was any doubt that this was not about law enforcement or drug dealing. The President is talking about Cuba, Mexico, Greenland, Colombia. Colombia. Let's just take Greenland. What does Greenland have to do with the importation of cocaine and fentanyl? So anyway, as you can tell, I'm pretty exercised because I know nobody ever wants to have analogies to World War II. I do feel like I can do it, given my personal history. But at some point, why aren't we talking about, well, why isn't this The President saying it's time to just go into the Sudetenland, which, you know, is the famous way in which Hitler got it started. Obviously, I'm not comparing Donald Trump to the killing of 8 million people. I'm talking about this idea of world domination and the sort of Latin America is now sort of a free for all. And the kind of irresponsible language and the message it sends to China and Taiwan and Russia and Ukraine is devastating.

Mary McCord (11:22)

Yeah. Can Putin just come up with some criminal charges and grab Zelensky and take over the country and say we're going to run it? I mean, that's, I think, the starkness we need to put this in. Let's just get a few basic principles out there as we talk about what this means for the international community and then what it means here in the US And I think that whether people agree or disagree with the sort of merits, and by merits I don't mean in a legal sense, but just the merits of like regime change in Venezuela, because there's no question Maduro was an illegitimate leader and has caused some really devastating and terrible consequences for the people of Venezuela. But the United Nations Charter, which is something that, you know, the US Is a member of the United nations, it is something we have agreed to, has an Article 2, 4 which says that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. And so whether people think that this was sort of, from a policy point of view, a good thing to do or a bad thing to do, I think there's been a lot, a fair bit of agreement that it does violate that provision of the UN Charter because we definitely used force against the territorial integrity and political independence of another state. There's another provision, Article 51 says nothing in this Charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a member of the United Nations. Okay, so under Article 51, if a member state, so let's say the United States does invade the territorial sovereignty of another state, but they're doing it in self defense, they do something called an Article 51 notice to the United nations saying, we did this, we did this for self defense purposes. Here's why. To my knowledge, that certainly hasn't happened, although there have been statements made by the President and Secretary of State and Secretary of Defense not only with respect to this operation, but also with respect to the strikes on fastball boats in the Caribbean Sea and elsewhere that there's a Self defense aspect of this. But a key in the self defense was against armed attack. Right. And so this gets us back to this whole notion of is drug smuggling into the United States. Could that be the equivalent of an armed attack? And I think it's a very hard argument to make. Yes, drugs kill Americans, but there's just no definition of arms that I've ever seen that includes drugs as an arm. Right. So we haven't heard that they're going to make an Article 51 notice. I think Article 51 would be tough here. But I will say it has been used in other cases where we have actually invaded the territorial sovereignty of another country and extracted somebody who was facing criminal charges in the US And a lot of people are talking about Manuel Noriega as an example. But the example that I know so much more about is the example now he is not a head of state, but the example of Abu Ktala, a leader of one of the rebel paramilitary groups in Libya right after the fall of Gaddafi and the civil war there in Libya in 2011 and 2012. And in 2012 people will remember because this is much more recent history than the extraction of Manuel Noriega back in, I think, 1989. In 2012, our sitting ambassador and three other Americans who were working for the United States were killed in an armed assault on the United States mission in Benghazi, Libya. And over the course of time after that September 2012 attack, the United States. This was started when I was the Criminal division chief in D.C. and culminated in a capture when I was the principal Deputy Assistant Attorney General for National Security. We got an indictment against Abu Qtallah for terrorism charges related to his direction and leadership of that attack on Americans. The FBI, after we got that sealed indictment, went to the military to ask for a military assist to the law enforcement operation. And they did do a capture operation that did not involve a bunch of other bombings or, you know, cyber operations to turn off the lights across Libya or anything like that. It was a very strategic and narrow plan where just Kotala was taken. He was brought back to the United States, he faced trial, he was convicted, he is serving time in the US now for those terrorism charges. And we gave Article 51 notice that because of the attacks on the United States and United States persons and continuing threats of attacks on United States persons, this action was taken under that principle of inherent self defense. It was also a country that we could not have even asked to help us extradite him or to give permission because there was no recognized government in that country, it was still in the aftermath of the overthrow of Gaddafi. And, you know, there were rebel paramilitary forces fighting those who had been loyal to Gaddafi. And there just was not a government to actually extradite a person. So there is history for that in a very different context. And guess what we didn't do after that? We didn't say we're going to run Libya.

Andrew Weissmann (16:29)

You didn't say we're going to run the country. And by the way, let me give you a list, a menu of other countries that we want to take over. I mean, it's not just even regime change. I mean, this is. If you thought that Russia invading with no grounds whatsoever, Ukraine was a black and white issue, this is just as much a black and white issue. Even though Maduro is a bad guy, I mean, like a really bad guy and illegitimate, to me, it is so similar to what we're going to talk about with Kilmar Bago Garcia. In the domestic context, the administration banks on the fact that they can do something illegal if they can characterize the person as a terrorist or a bad person somehow meaning that you, you don't have to apply the law. It's just such a continuity in terms of MO. The sort of modus operandi of the Trump 2.0 administration, which may be a quick way of summing it up, is lawless. And this really isn't the ends justify the means. I think we're going to talk briefly about a decision from Judge Gary Brown, but he starts by quoting from a Supreme Court case saying this country is founded on due process and the law, and that when it's the government that is doing it, that is really the end of the rule of law. And that is fundamentally different when the government is doing that. And so this is what we have been living through, in my view is sort of the international context of something that we've been seeing on the domestic front. And the fact that Maduro is illegitimate and really should not be there doesn't justify the means. And it's something that you and I, I guess having been brought up as prosecut, I mean, it's, it's laughable.

Mary McCord (18:25)

Yes. I do want our listeners to be clear, though. Now that Maduro and his wife are here in the United States, they are going to get totally going to get due process of law with respect to their criminal charges. Right. So the due process you're talking about, Andrew, is really about this whole, you know, entering the country, kidnapping them and bringing them here. Normally, if we have criminal charges against somebody in Another country, we work with that country and hopefully we have an extradition treaty with that country where they will extradite on criminal charges and voluntarily send, you know, their citizen here to face justice. Some countries don't have those treaties with us and we sometimes work with them to try to see if we can't make some arrangements. And sometimes we're just not able to get it done. Right. Like look at how many people, when you were working on the Mueller investigation, Right. And you and the Mueller team charged a number of individuals in Russia knowing unless they travel to a country that would extradite or travel here, we're probably never going to get our hands on them. And the same is the case with China.

Andrew Weissmann (19:22)

Exactly.

Mary McCord (19:22)

But then that's just the way it is. I mean, occasionally, like the case of Abu Khattala, again, someone responsible for terrorist attacks that killed Americans. You know, we've done some other things when there's not a government able to work with us on that and we've done them under this self defense principle, but that should be very much the exception. Maybe what we should do is take a break and then talk a little bit about the charges before we move on to January 6th, just so that people understand what is going on here. And some people might think, well, hmm, does he have a defense to these charges based on the fact that he was, you know, essentially kidnapped by the US in violation of international law? Spoiler alert. No.

Andrew Weissmann (20:01)

So exactly. Yeah, let's take a break and come back and continue.

CIDP Advertisement Voice (20:14)

CIDP can make your daily routine feel not so routine. The good news? With a self injection for chronic inflammatory demyelinating polyneuropathy, you have the option to treat at home. Discover more@cidpselfinjection.com and talk to your doctor. That's cidpselfinjection.com brought to you by Argenics.

Rakuten Announcer (20:41)

Shop with Rakuten and you'll get it. What's it? It's the real deal. Cash back and savings on almost everything you buy. Join Rakuten and start getting cash back at cvs, Instacart, YSL Beauty and other stores you love. You can even stack sales on top of cash back. Just start shopping with Rakuten to save money and get that cash back feeling. Join for free@rakuten.com or get the free Rakuten app that's R A K U t e n rakuten.com hi, I'm Angie.

Angie Hicks (21:11)

Hicks, co founder of Angie. When you use Angie for your home projects, you know all your jobs will Be done well, from roof repair to emergency plumbing and more done well. So the next time you have a home project, leave it to the pros. Get started@angie.com.

Andrew Weissmann (21:29)

So welcome back. As I mentioned at the outset, there are four charges. There were four charges before. There are four charges now in a greatly expanded in terms of the language that's used. And we'll talk about that. And then let's talk briefly about possible defenses. One is, hey, I was brought here illegally. The defendant might say, so you have to release me. You know, that's one type of defense. Surprisingly, there's a lot of law on that. And then the other possible defense is, hey, I was a head of state. And you know what? Heads of state have a kind of immunity. Gee, that sounds familiar. For people. Yeah. For people who listen to this podcast, it's like, see Trump versus United States. So what kind of arguments can be made about head of state? But let's turn to the nature of the charges here, particularly the drug charges. There's a certain type of drug charge that's a little unusual here. What actually has been charged with respect to Maduro.

Mary McCord (22:27)

This is the charge that the indictment, as well as the attorney General Pam Bondi and Donald Trump and others are referring to as narco terrorism. And what it is is it is a criminal offense that's in the United States criminal code that is sort of a combination of drug dealing when it benefits people or organizations that engage in terrorism. And that's exactly what the statute prohib says. Anyone who would engage in like drug distribution or a conspiracy to distribute drugs, and who does this, knowing or intending to provide directly or indirectly anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity or terrorism as defined in other parts of the United States code. That makes this the crime that is sort of just colloquially referred to as narco terrorism. So just to recap it, there's a drug conspiracy to distribute drugs where something of value is going to go to people or organizations that engage in terrorist activities. That is narco terrorism. And the allegations in this indictment are essentially that Maduro, his wife, others in the Venezuelan sort of elites of military and government were providing protection to drug cartels, both within Venezuela as well as drug cartels in other countries, some of which have been newly designated as foreign terrorist organizations by this administration in February, some of which have had previous designations like the farc, which is no longer itself designated, but it has two sort of spinoff successor orgs that are designated. So the allegations are essentially that in return for enriching themselves, the Maduro government and military commanders and his wife and his son provided protection to the cartels to allow them to essentially traffic drugs through Venezuela up to the United States.

Andrew Weissmann (24:23)

And for decades.

Mary McCord (24:24)

For decades, yes.

Andrew Weissmann (24:25)

Starting in 1999, it's very, very serious charges. And so what about this argument, Mary, where, you know, we've been talking about this sort of illegality, the international law illegality of this, and let's assume the judge agreed that it was illegal. Does a defendant get to say, well, I was brought here illegally, so you need to release me and put me back in the position I was in before the illegality?

Mary McCord (24:52)

No. The Supreme Court has decided two cases.

Andrew Weissmann (24:56)

Kerr and Frisbee, hence known as the Kerr Frisbee doctrine.

Mary McCord (25:00)

Exactly. And that basically says it is not a basis for a motion to dismiss the case against you, that you were abducted from another country and brought here to face justice. This does not result in a lack of judicial authority so long as the charges. Right. That you're facing. Of course, this would be a different defense if this wasn't the case. But if there are extraterritorial of those charges, it doesn't matter if you were brought here in violation of international law. And I would say that in large part this comes from, I mean, there's various reasons for this, but our domestic criminal system doesn't really recognize international law. I mean, if there is a binding treaty, that's one thing. But if there is customary international law and things like that, I mean, we've certainly have Department of Justice Office of Legal Counsel opinions that say it doesn't really matter when we, when it comes to our extraterritorial enforcement of the law. And in general, our laws don't apply extraterritorially, but they do sometimes in some circumstances when Congress has made clear that when it's an offense, for example, offenses against United States persons. Right. Or committed by United States persons.

Andrew Weissmann (26:08)

Let's take the example of Abu Khadala. That is an example where the crime was against a sitting member of the State Department in Benghazi. And so that is one where there is extraterritorial jurisdiction, meaning the crime can happen overseas, but the United States still, still is able to criminalize it. So here that's not going to be a defense. The issue that we should keep an eye out for because there will be litigation on this and we'll talk next week about it.

Mary McCord (26:37)

Yes.

Andrew Weissmann (26:38)

Is sort of head of state immunity, whether Maduro is going to claim that as head of state, he is entitled to immunity, there will be a battle royal over whether he is legitimately the head of state and whether immunity should attach. And also even if he is, whether it attaches to things like drug dealing and weapons offenses and it's an international.

Mary McCord (26:57)

Look concept and are we going to respect that?

Andrew Weissmann (27:00)

Right, Right. So that's for another time. Mary. I really want to spend some time just talking about Jack Smith because Jack Smith wanted his deposition before Congress to be made public. He wanted actually to testify publicly. That was rejected by Jim Jordan and the Republican controlled committee. And so he testified privately. There was a lot of pressure to release it. It was released on, wait for it, New Year's Eve.

Mary McCord (27:28)

Because that's when everybody is most glued to the news on New Year's Eve.

Andrew Weissmann (27:33)

Exactly. So, you know, it's such a sign, little tip. If something is released on New Year's Eve, if something is released on the Wednesday before Thanksgiving or Friday afternoon by the White House, that is so called the take out the trash day. And so all of that should be a sign there's something here because that is what is being done. And if you have just an hour, listen to the first hour because you really get a sense of him. He has asked a lot of questions about did he come in with preconceived notions. He talks about the nature of the proof. It gives you just a small sense of the man and how he approached his job.

Mary McCord (28:14)

So before we play some of this recorded deposition, Andrew, just to your point at the beginning about what Jack Smith wanted, he wanted a public hearing that would be consistent with previous special counsels, as you know from working with Robert Mueller on the Mueller investigation. Robert Mueller then did a public hearing. I mean, I was sitting in a newsroom with a reporter talking about that public hearing, Robert Herrer, who investigated President Biden over whether he had mishandled classified information, public hearing and even John Durham public hearings. So, like it is the norm to have a public hearing by a special counsel after they've submitted their report. So this is very much not the norm. But we do now have the transcript, and not just the transcript, but the video and are going to play a clip or two. So turning it over to you, what's so important about this first clip that you want to play for everyone?

Andrew Weissmann (29:08)

Sure. As I have said in the past, I think one thing that's really useful is you just get a sense of the person if you listen to it, the sort of longer segments. But one of the things that explains why you would try to hide this testimony is One of the questions he's asked is sort of of, why didn't you just go up the chain and why weren't you trying to flip people? And why did you essentially start with the president at that point? The former president and Jack Smith talks about the nature of the proof and gives his assessment of the case that they had built. So let's take a listen.

Jack Smith (quoted) (29:46)

Two points. One, as I said, we were considering prosecutions of these people. And I think, I don't want to say what the ultimate conclusion that would have been, but that was something that was being considered. The second thing I think to understand contextually is this was a case where the issue was how to present it in a concise way. We had so many witnesses, again, so many witnesses who were allies of President Trump available to us to testify. This was not a case case where we needed more witnesses. It was a case where we needed to be able to present the case in a streamlined way because there was so much evidence.

Mary McCord (30:26)

And that theme comes up multiple times. I mean, I know Jack Smith returns to this 2, 3, 4 more times during this lengthy deposition and explains that most of the witnesses were not going to be political enemies of the present, they were going to be his allies. And he gives examples about the speaker of the House in Arizona, who had been someone very much supportive of Donald, Donald Trump and an elector in Pennsylvania.

Andrew Weissmann (30:54)

Should we listen to that?

Mary McCord (30:55)

Yeah. Yeah.

Jack Smith (quoted) (30:56)

One of the strengths of our case and why we felt we had such strong proof is our witnesses were not going to be political enemies of the president, they were going to be political allies. We had numerous witnesses who would say, I voted for President Trump, I campaigned for President Trump, I wanted him to win. I spoke speaker of the House in Arizona, the speaker of the House in Michigan. We had an elector in Pennsylvania who is a former congressman, who was going to be an elector for President Trump, who said that what they were trying to do was an attempt to overthrow the government in illegal. Our case was built on, frankly, Republicans who put their allegiance to the country before the party. And so, so the President got information from people he trusted on other issues. He rejected it whenever it didn't fit him staying in office. And there was a pattern in our case where anytime any information came in that would mean he could no longer be president, he would reject it. And any theory, no matter how far fetched, no matter how not basically that would indicate that he could. He latched onto that. And we were confident that we had very strong proof of that pattern.

Mary McCord (32:18)

So another theme throughout is that it was really, Donald Trump, who made this a case, Right. And I don't just mean he's responsible. And Jack Smith was saying, our evidence of that was so strong, it's that he's saying, look, when it comes to who the witnesses were, those were the witnesses, who were the people who President Trump and his allies were reaching out to to try to help him overturn the results of the election. When it comes to. And this is another thing that Jack Smith got questioned about. When it comes to obtaining the toll records of senators about their phone calls with Donald Trump, one of the things Jack Smith said is like, hey, these are the people that he was contacting. If he had been contacting Democrats, we would have gotten their toll records. The toll records were important to corroborate other evidence they had through witnesses who said, I had a conversation about the president, I urged him, like on January 6, right? Urged him to tell his supporters to stop this, urged him about the dangerousness of it so it could corroborate that that phone call took place. And others were like, I had conversations saying that there was not fraud in the election significant enough to change the results. And so those toll records corroborate that. And Jack Smith was saying, these are things that the President decided who he was going to call. And I think that this is very consistent with. With something that Jack said within probably the first 20 or 30 minutes of his testimony. And that is just kind of the heart of this case. To my mind, this is what he said.

Jack Smith (quoted) (33:46)

The evidence here made clear that President Trump was, by a large measure, the most culpable and most responsible person in this conspiracy.

Andrew Weissmann (33:57)

The.

Jack Smith (quoted) (33:58)

These crimes were committed for his benefit. The attack that happened at the Capitol as part of this case does not happen without him. The other coconspirators were doing this for his benefit. So in terms of why we would pursue a case against him, I entirely disagree with any characterization that our work was in any way meant to hamper him in the presidential election. Our view of the evidence was that he caused it and that he exploited it and that it was foreseeable to him.

Mary McCord (34:36)

That last bit, meaning the violence at the Capitol.

Andrew Weissmann (34:41)

He was also asked a question about, well, the President would have a perfect First Amendment right to say that he thought that there was fraud in the election. And. And Jack Smith says, no, he would not. If he was doing that, knowing that that was a lie and doing it to obstruct governmental functions. You do not have a First Amendment right to lie to obstruct governmental functions. If you have a good faith belief in what you're saying and you go to court and you challenge it. That is entirely lawful. In fact, the indictment that was brought by Jack Smith and voted on by the grand ju said that that would be totally fine. But what they charged and what Jack Smith talked about was something very, very different. So again, what Mary and I are doing is giving you some flavor, but strongly encourage you to listen to the man that will be in our show notes so that you can listen to it yourself. Mary, I have a question for you before we take a break and talk a little bit about Abrego Garcia and Judge Gary Brown's decision in another immigration case, another heart wrenching case. Do you want to give us a little preview of what you're going to say?

Mary McCord (36:05)

So this first panel really will be talking about the impact of the pardons of every single one of the people convicted of or charged with the attack on the Capitol on January 6th. You know, there was no differentiation, there was no individualized assessment of what was this person criminal history? Did he have a criminal history before committing this attack on the Capitol? It was just blanket. Everybody gets absolved.

Andrew Weissmann (36:30)

Including violence.

Mary McCord (36:32)

Yes. Involved in other crimes, including crimes of violence. So one of the former prosecutors of January 6th cases will be talking, a police officer will be talking, and I believe potentially one of the people who was offered a pardon and said no thank you to that pardon at least those were the initial plans. And I'm going to talk about political violence a little bit more generally, which is the that two kind of overarching points. One is that political violence, whether it is, you know, something as violent as the killing of the democratic lawmaker and her husband in Minnesota or the assassination of political activist Charlie Kirk, that that's not what political violence is limited to. Political violence extends beyond that to the intimidation, the harassment, the threats that make people less willing to actually exercise constitutional rights, participate in democratic processes, go out and vote, run for, be elected officials. Because when people are chilled from doing those things because of intimidation, harassment and threats, even if they don't rise to the level of physical violence, that completely undermines everything that our democracy is built on and everything that our democratic republic is built on, right. We don't have a direct democracy where we all get to vote on every single thing. We elect representatives to represent us. But so many things are coming together when it comes to political violence to sort of like erode that process by which we are able to elect representatives to represent us in all kinds of matters. And then the other overarching Theme here is that political violence, whichever kind of thing we're talking about, the intimidation, harassment, threats or the actual physical violence is often the result of mis and disinformation. Just outright lies in some cases and just completely misleading things in others. Election fraud. Right, right. Just a complete falsehood, a false narrative that drove the attack on the Capitol on January 6th. Now we have false narratives about immigrants. We have false narratives about elected officials. We have false narratives about so many things that now we fear. I mean, this is what has driven the deployments of the National Guard. This is what has driven a lot of efforts to suppress votes by claiming things like immigrants are unlawfully voting and engaging in violent crimes. Does that sometimes happen? Happen? Yes, that sometimes happens. But the percentage of crime committing by immigrants is far, far smaller than that committed by us born citizens. So anyway, the concern here is that when you have these false narratives that drive political violence, if we're going to learn from January 6th, I mean, we have got to do more about addressing mis and disinformation.

Andrew Weissmann (39:10)

Boy. So one, I can't wait to hear it. I will be tuning in live. I will also listen to the feed on our podcast. I hate to say this, but you know, I'm just finishing up a book and I think you're gonna like it. I'm not sure you're gonna like my conclusion, but there's certainly some chapters about disinformation and what I think we can do. Surprise, surprise, we're kind of on the same page. So why don't we take a break and this is like a really good segue to since we're talking about immigration as an example of this, to talk about two things that have been gone on in the Abrego Garcia case that I think are worth noting and a ruling by Gary Brown in the Eastern District of New York. And I think we'll put a link to that also in our show notes because it's a long decision that's very, very readable and we're not going to be able to do it justice. So let's take a quick break and come back and we'll outline for you what's going on there and try and put a spotlight on some things that have gotten less attention than it deserve.

Mary McCord (40:13)

That sounds good.

CIDP Advertisement Voice (40:24)

CIDP can make your daily routine feel not so routine. The good news, with a self injection for chronic inflammatory demyelinating polyneuropathy, you have the option to to treat at home. Discover more@cidpselfinjection.com and talk to your doctor that's cidpselfinjection.com brought to you by Argenics.

Rakuten Announcer (40:50)

Shop with Rakuten and you'll get it. What's it? It's the real deal. Cash back and savings on almost everything you buy. Join Rakuten and start getting cash back at cvs, Instacart, YSL Beauty and other stores you love. You can even stack sales on top of cash back. Just start shopping with Rakuten to save money and get that cash back feeling. Join for free@rakuten.com or get the free Rakuten app that's R A K U t e n rakuten.com hi, I'm Angie.

Angie Hicks (41:20)

Hicks, co founder of Angie. When you use Angie for your home projects, you know all your jobs will be done well. Roof repair done well. Kitchen sink, sink install done well. Deck upgrades done well. Electrical upgrade done well. Angie's been connecting homeowners with skilled pros for nearly 30 years, so we know the difference between done and done well. Hire high quality pros@angie.com.

Mary McCord (41:53)

Welcome back. So Andrew, last week we talked about quite a bit about the developments in the criminal case against Abrego Garcia. Everyone will remember this is so complicated because there's the civil case that Abrego Garcia originally brought through his wife and others to bring him back from El Salvador and now has gotten released there because ISIS continued to try to detain him before removing him to pretty much any country other than a country he would like to go to, countries that don't even want to take him. But we talk particularly about the criminal case against him, a criminal case that was only created while the controversy over him being wrongfully removed to El Salvador was still pending. And after the courts, including the U.S. supreme Court, said that the United States needed to facilitate his return. That is when the Department of Justice obtained a criminal indictment and he is charged in Tennessee and he has a pending motion to dismiss on vindictiveness grounds that we talked about. And what are the new developments in that?

Andrew Weissmann (42:58)

So two developments that are sort of interesting to me. If you remember, we talked about how there was this sealed submission and we didn't really know what it was about, but we did know that the judge sort of canceled the trial date at the end of January and instead said at the end of January, January 28, there was going to be a hearing on the vindictive prosecution motion. And what we now know is that there is evidence that suggests it's still not determined. There will be a hearing that the government's claim that the decision to prosecute and go forward with respect to Abrego Garcia was not made solely by the local U.S. attorney's office. There had been a suggestion in the papers and by the government that, you know, hey, it doesn't really matter that you should look to Washington because it was a local decision. And sure enough, there's email traffic that has communications with the Deputy Attorney General's office, and one of which suggests not only involvement, but that they want it to be brought quickly. Now, we will understand, just to be fair, we need to hear the context of that, and the government needs to lay out its side of the story at this hearing. But that's sort of one thing, which is that what was happening was the judge had evidence that he thought and has talked about it as casting doubt on that claim. The second thing that's happened is we had talked at various times about Gregory Pavina, know, the senior DHS official. He is somebody who the judge in Chicago had some choice words about. He reappeared in the Judge Howell decision that we talked about making claims about what the law requires and getting it wrong. Well, there is now a pending motion before the same criminal Tennessee criminal judge, the one overseeing this case case, about his statements about Abrego Garcia, that Abrego Garcia's counsel says were in violation of that court's order about not making these statements. And he directed that order to DOJ and dhs. And the kinds of statements were exactly the kinds of things that, Mary, you and I would like never in a million years do when you were in the government. You speak in court, you don't badmouth people gratuitously. So that is pending now. And this is a senior DHS official who has made really outrageous statements about Abrego Garcia. So those are the two things.

Mary McCord (45:48)

And this is the kind of things we've been hearing since the beginning with even the Attorney General. Right. Basically, forget the presumption of innocence. Right. Calling him a sexual predator and a dangerous criminal and all of this and all of the things that we don't do. And that reminds me of something that I actually meant to raise the top of our episode today about the criminal indictment of Nicolas Maduro and his wife is that one of the things that really bothered me was the statement that the Attorney General made that morning through social media, the morning this was all breaking, and that was that now he was going to experience the full wrath of justice in America. And. And I don't know about you, but my antenna just went up and I'm like, wrath and the word justice have nothing to do with each other. Right. Justice and our justice system is about holding someone accountable when they have violated our laws and caused injury. And it is about providing them with due process and a fair trial under all of the principles of our Constitution. It is not about wrath. It is not about we just go after people out of vengeance and bring them here to stand trial in our courts. And I feel like that what triggered me to remember that I had forgotten to talk about that at the top of the episode is what we have seen against Abrego Garcia. It is hard to see that these criminal charges and the way he's been treated not just by the Department of Justice, but by dhs. Right Again, he has said, I will go to Costa Rica. Costrika said, we will take him. And they've instead tried to send him to Liberia and all these places where he's got no connections, no ties, and they don't want him. And all you can think about is this is vengeful. So it should not be that way. But the word wrath of justice in the United States just should not ever come out of the Attorney General's mouth or anyone at the department.

Andrew Weissmann (47:46)

Perfect segue to Judge Gary Brown in the Eastern District of New York was deciding a habeas petition of another immigrant who Aaron Anthony Clark versus the United States Department of Homeland Security. Judge Brown begins his opinion by noting the Justice Brandeis statement in Olmstead. If the government becomes a lawbreaker, it breeds contempt for law. It invites every man to become a law unto himself. It invites anarchy. The judge describes how he has spent over three decades as either a federal prosecutor or judge in that district and has never seen anything like that. Let's leave aside the what the judge says he's going to have contempt hearings and wants to have briefing on ice's disregard of his court orders. He has a whole section on that. But the thing that is unbelievable here is that you have somebody who was in the country, married to an American with children was no risk of flight. We talked about that when we talked about Judge Howell's case, and yet is arrested seemingly illegally without the necessary findings. But I just want to focus on the conditions because that is what the judge focuses on. He's put in a holding cell with numerous people. Never intended to be a place to hold people overnight, let alone for days. He becomes one of nine men locked in a putrid and cramped hold room, a small cell containing an open toilet designed to briefly detain a single individual. ICE held them day after day without access to bunks. Bedding, soap, showers, toothbrushes, or clean clothes. The space is unheated or poorly heated at night while the outside temperature dropped to as low as 21 degrees. The men were provided two packaged meals a day to the extent they could sleep. They did so crammed on the filthy floor while the lights blared 24 hours a day. That is in the United States of America.

Mary McCord (50:10)

And he goes on to describe, the reason there are no bunks is because this holding cell is only supposed to have people in it for a tiny, minimal amount of time. And I say people, but I mean an individual person, one at a time. But guess what? Because of the mass deportation policy isis out of space. And they say we need more space, we have to use other spaces. That is not a legitimate excuse.

Andrew Weissmann (50:35)

One of the things that happens here is Judge Brown, after getting all of this, orders that Mr. Clark be immediately, immediately released. And what happens? They hold him overnight. They don't immediately release him. So that is going to be the subject of contempt hearings. It'll be interesting, and I'm very interested because I really think that judges have to, assuming the proof is there and there's intentional conduct, their due process has to be afforded the people who are being accused of potential contempt, but they have to be held to account. You don't get anywhere by having a different standard. And the government is particularly required. They should welcome being held to that standard. So this is one we're going to keep an eye out for. As I said, it's in our show notes. It's very readable. We just have given you a small piece of what happened here. I should say Judge Brown cites to other cases to support him, not just other cases legally, but other cases with similar findings with respect to the treatment of these people. This is not America. Even if there's a basis to go forward with a deportation, it is not by these means. There is such a thing as cruel and unusual punishment.

Mary McCord (52:06)

And just to be clear, legally, right, this was a habeas petition to say this person should be released. He has not received the due process that he's entitled to in terms of a hearing about whether he needs to actually be detained pending his removal proceedings or whether he could be released into the community. He's somebody who originally did come into the community on a proper visa. He did overstay that visa, at least according to this opinion. But he is married to the US citizen, so he does have another basis for being able to obtain lawful residency here. And the judge recognizes that habeas is an extraordinary remedy. He says the law on this is a habeas petition should be granted bail. By bail here we mean release pending. We normally think of bail in a criminal case pending your criminal charges going to trial, but in the immigration case, it's, you know, release pending your removal proceedings. It says petitioner should be granted bail only in unusual cases or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make that habeas remedy affects. In this case, the judge says the existence of extraordinary or exceptional circumstances is beyond doubt. This is where he talks about. I've never encountered anything like this in 35 years of working with federal law enforcement is both a prosecutor and a judge. And this is a judge who was appointed by Donald Trump in 2019. So we're not talking about 35 years as a judge, but he had prosecutorial experience before that. It's both ISIS disregard of procedural requisite, the chillingly brutal conditions of confinement, and also the fact, honestly that the judge felt that he had been lied to by ice. ICE had refused to provide information that the judge had requested regarding the conditions where this man was being detained.

Andrew Weissmann (53:57)

Requested is another way of saying ordered.

Mary McCord (54:00)

Yes, ordered. You're right. He writes his opinion after he had ordered the person's immediate release. And so he's able to include in this how outrageous it was that they then held him for an entire another day. So it really is like you say, it's really a bombshell type opinion. And you know, I know we've sort of said this before because we've seen so many similar opinions now and. But I don't want people to stop being impacted by those because like you said, it is judges who are saying, you know, this is not how the system is supposed to work. And even one, one opinion like this, when I was a prosecutor or when you were a prosecutor, we would have just been mortified. Right? Well, first of all, we wouldn't have gotten ourselves in position to have an opinion like this written. But it's like a five alarm fire, but we're seeing it repeated over and over again.

Andrew Weissmann (54:48)

We want to call that out to you folks because there is this fire hose of outrage and of things that are, to quote Judge Brown, abhorrent. That's one of the words he uses. And it's really important to call it out so we don't normalize it. So, Mary, I wish you all the best for tomorrow. I can't wait to hear it next week. Obviously, we'll continue. We do have an expert coming on international law. And with that, thanks everybody. I wish everybody a really healthy and fulfilling 2026. Thank you so much for continuing to listen and we'll be back to our regular Tuesday release time next week. And remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content.

Mary McCord (55:44)

This podcast is produced by Vicki Virgolina. Our associate producers are Iggy Monda and Rana Shahbazi. Colette Holcomb is our internal, Bob Mallory, Greg Devins II and Hazik Bin Ahmad Fared are our audio engineers, Katie Lau is our Senior Manager of Audio production and Aisha Turner is the Executive Producer for Ms. NOW Audio.

Andrew Weissmann (56:06)

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

TextNow Advertisement Voice (56:25)

Sometimes life will get you stressed out. Lucky you can always count on Text Now. Free Talk, free text, free 5G. And they'll never shut you off because like I said, it's free. Text Now's got your back nationwide. No long term contracts, but I'll be nervous about losing service. Textile's got the your back. That's their sense of purpose. No matter what comes next, you've got Free Talk and text with the TextNow app. Wireless plans require the purchase of a sim card. Visit textnow.com for terms and conditions.