Andrew Weissmann (3:22)

Busiest law firm in the country.

Mary McCord (3:24)

Yep.

Andrew Weissmann (3:25)

Unbelievable how much they're doing.

Mary McCord (3:27)

And just a plug for ours. Ours is fully briefed. We expect our judge to rule anytime in Maryland. And finally, we'll talk a little bit about the new investigations that were announced last week into former CIA Director John Brennan and former FBI director James Comey.

Andrew Weissmann (3:44)

And by the way, I just want to make sure we're not normalizing something. The investigations that were announced last week. I know, I know. I e first leaked clearly by the government to FOX News and then confirmed by the Department of Justice, which as you and I know the policy of the department is euphemistically known as put up or shut up. It's like you don't announce these things because if the case goes away, people are entitled to not have the opprobrium of the government tarnishing them unilaterally unless and until they're charges.

Mary McCord (4:22)

Yep.

Andrew Weissmann (4:22)

It's so friggin indicative of where we are as a country that that happens. And it's like that's the least of our problems.

Mary McCord (4:33)

Yeah, exactly. So it's like almost as a throwaway when I say we'll get to that. And you know, in many different situations that would have been headline. Right?

Andrew Weissmann (4:40)

Yep, exactly.

Mary McCord (4:42)

But Andrew, let's start off. I think really a good place to start off is with the whistleblower. That's Erez Reveni. I don't know how you, how do you pronounce his last name?

Andrew Weissmann (4:53)

I think that's right. It's Erez Ruveni. And our apologies if you'd like to come on the show to explain how to pronounce his names, we'd love to have. Yes. Yeah. Because you know, he's a, he's such an interesting guy. Just a brief recap for our listeners. I mean people who are dedicated listeners know this. But just in case to recap, this is not a Political appointee. This is not a deep state person. This is somebody who has been in the department for 15 years. He served on various administrations. He's a immigration specialist. And he in fact stood up and defended many, many controversial things that the Trump administration in the first term did, including the so called Muslim ban.

Mary McCord (5:41)

That's right.

Andrew Weissmann (5:42)

So we're not talking about somebody who is being, you know, persnickety about, like, oh, if it's not a policy I agree with, then I'm going to do something wrong or outlandish. Where he has said, and by all accounts it appears to be true, is that he's just not willing to A, disobey a court order and B, say something to the court that's not true. That's sort of the heart of it is he was on the Abrego Garcia case.

Mary McCord (6:09)

Right. Those are things that are sort of the highest ideals of Department of Justice lawyers. Right. You are not going to disobey a court order and you are going to always abide by your duty of candor to the court. You tell the court the good, the bad, what helps you, what hurts you.

Andrew Weissmann (6:25)

It's both the right thing to do and the right thing to do, meaning if it's what you have to do, but it's also strategically the right thing to do. You want the court to trust you and to feel like when they say, Mr. Raveni, what happened here, that they're going to hear the unvarnished story, good, bad and indifferent. And here one of the things that he apparently got in a lot of trouble for was by saying that it was a mistake that Mr. Abrego Garcia was removed to El Salvador. Just to be clear, that is the government's continued position. They're saying that now in court. They said it to the Supreme Court. Just remember, there's only two positions they can take. It was intentional, meaning that they intentionally violated a court order, or the more benign version, which is it was a mistake. So it's sort of incredible that he got in trouble for saying something that is the most benign version of what happened. The other is that once there was an order in the Judge Boasberg case, the one that said, you know, turn the planes around, make sure this isn't happening. He kept on sending what was required to be done to people. And the internal emails that you referred to, Mary, have sort of chapter and verse where he's trying to get answers about what's going on and saying, you know, this is what Judge Brosberg has required us to do and we've talked a million times about the idea that, you know, your obligation. If you think the judge is wrong, you can ask to re argue, you can appeal him, but you have to comply until either of those two things happen.

Mary McCord (7:59)

That's right. And you know, this is a perfect segue right into these emails and text messages because as we talked about a few weeks ago, Mr. Rouveni did submit an extensive whistleblower complaint that is being considered by those on Capitol Hill and elsewhere describing what went on on the day before and the day of that March 15th effort to remove three planeloads of detainees under the Alien Enemies Act. Some pretty bombastic kind of allegations. Not bombastic meaning he exaggerated them, but like really significant allegations of things that the principal Assistant Deputy Attorney General Emil Beauvais allegedly said during meetings at the Department of Justice about ignoring court orders, using a phrase that we don't usually use on this program that begins with an F and ends with a K on the first word. And the second word is you. And that is what Mr. Raveni alleged that Emel Beauvais had said with respect to are we going to abide by court orders? And I think what's really significant, many things significant about these emails and text messages which I read, is that to your point, you start out with Raveni, who is in court on the 15th. Remember, I say in court, this was a telephonic or zoom court hearing because it was on a weekend. Judge Boasberg was out of town on, I guess like a weekend vacation when he, you know, got the emergency motion in the middle of the night. He had a 9am or roundabout 9am hearing and said, I'm going to have a, you know, stay everything right now, no planes leave. I'll have a more extensive hearing at 5pm and what these emails and text messages show is that during that 5pm hearing, which goes on, it's not exactly 5pm but started around there, which goes on for a couple of hours. We see Raveni reaching back out to supervisors to get clarification. And importantly, we see him being very clear minute by minute. The judge is about to issue a tro. Right?

Andrew Weissmann (10:05)

Right.

Mary McCord (10:05)

The judge has now issued a TRO and he has been clear. Turn any planes around that have already taken off.

Andrew Weissmann (10:13)

Also, Mary, I was struck by. So he actually texts the actual order, the minute order from the judge.

Mary McCord (10:20)

That's right.

Andrew Weissmann (10:20)

One of the things the government ended up arguing is, oh, it's only an oral order, so it doesn't count. Or it's a minute order. It doesn't count. And here, obviously, Mr. Raveni isn't thinking that. He's like, here's the order. We have to comply with it.

Mary McCord (10:34)

Before we move to some of the things we learned in his text messages and emails from the very next day during that hearing, we also, in addition to seeing these emails where Mr. Raveni is trying to get, you know, are people on a plane, you need to take people off. I now see that the planes have taken off. They're not supposed to, you know, if they land, they need to pursue it into the judge's order. He wants to know exactly the details, and he said to bring them back. But in addition to those emails, there are text messages between Mr. Roveni and his colleagues at DOJ that also corroborate that rather explosive comment that he said that Emil Pove had said about court orders. And he's saying at one point, this doesn't end. This is during the hearing, 5:55pm this doesn't end with anything but a nationwide injunction and a decision point on the fu. And there's multiple like that.

Andrew Weissmann (11:26)

Yes, exactly. And you don't have anybody on those text chains saying, what are you talking about?

Mary McCord (11:31)

Another one. Guess it's find out time on the fu.

Andrew Weissmann (11:35)

Right. Meaning that to be clear, the allegation from Mr. Eventy is that Mr. Bove had said, if the court does this, we may have to essentially using that word, we may have to disobey it, or as he said, give them the middle finger. I thought one of the most interesting things here, and I want to make sure our listeners know this is what has happened from both what Mr. Bove has said under oath because, you know, he's nominated to be a third circuit judge. And so he was questioned about this under oath. And also what Todd Blanche has said, I believe on X, you know, on former Twitter, so one Mr. Bovet has been sort of really pressed first teachers said, I never told somebody to disobey an order. Well, of course, that's not what Mr. Raveni is saying. The order hadn't come down yet. So he was saying, this is what we may have to do when the order comes down.

Mary McCord (12:27)

Right.

Andrew Weissmann (12:27)

So just saying I didn't give an order to disobey an order is not responsive. And I think it was Senator Schiff who pressed him and said, that's not the question. The question is, did you say this? And this I thought was so telling. He says, I don't recall. I mean, come on. So fine, you have somebody saying, I don't recall. And you have somebody saying, it happened, that that is an uncontradicted record. And also that's kind of a weird thing. If somebody said to me, mary, did you ever say in a senior meeting on a major case that we may have to disobey a court order? It'd be like, not in your life. No way, no how.

Mary McCord (13:07)

That's right. Like, first of all, this hypothetical wouldn't happen, right? This is because that would not ever happen at the Department of Justice. You would never forget about that.

Andrew Weissmann (13:16)

The other is Mr. Blanche, the deputy Attorney General. My read of what's been reported and what he has said is super disingenuous because he said I was at the meeting and that didn't happen. But this is the problem with that. It appears, and I think everyone agrees, that statement of I was at the meeting and it didn't happen is suggesting that he was at the meeting from beginning to end and he recalls and you know, everything and it didn't happen. But the facts appear to be at least that Mr. Blanche was only at the meeting for a short period of time. So if that's true, he shouldn't say I was at the meeting, which is literally true. But it gives the impression that he was at the whole meeting.

Mary McCord (14:03)

This is what we call a misleading statement.

Andrew Weissmann (14:06)

Exactly. It's like it would be totally different if he was 100% accurate and said I was at a part of the meeting and at the part of the meeting that I was at that didn't happen. That might be true, but that apparently is the set of facts. And so if that's the case, I really think that Todd Blanche really owes the public the truth. I mean, to put it bluntly, I mean, it's just so amazing. That is your job. You work for the public. You're not entitled to mislead them. It doesn't matter that you like your principal deputy and want him to get confirmed. If he said it, he said it. If you weren't there for the whole meeting, you can't make it seem like you were.

Mary McCord (14:44)

We're going to get more into this when we talk about the proceedings in front of Judge Zenas in Maryland. But this is one reason why the presumption of regularity when it comes to the Department of Justice is really almost non existent anymore. But before we move to that, I think another really important point about these emails is the one that was provided as part of this document production to members of Congress. That is an email dated March 16th. So the day after the planes went to El Salvador with detainees on them, the day after. Right. Mr. Rovini and others were asking for updates. Listeners might recall that Judge Boasberg even took a break during the hearing on March 15 to say, find out where these planes are and to make sure to tell people they need to be turned around. And if they've already landed, they need to not deplane anybody who is being sent there strictly under the supposed authority of the Alien Enemies Act. Right. That was all. And like you said, Mr. Raveni sent the minute order to his superiors. They knew this was the judge's order. Yet the next day, March 16, an email from another Department of Justice official to Mr. Raveni and his boss and others saying, I have been told by odag, ODAG is the Office of the Deputy Attorney General. I have been told by ODAG that the principal Associate Deputy Attorney General advised DHS last night that the deplaning of the flights that had departed US Airspace prior to the court's minute order was permissible under the law. And the court's order.

Andrew Weissmann (16:20)

Yeah, this is why Judge Boasberg is holding hearings and that Judge Zinnis is holding hearings and Judge Gallagher, and all across the country, you have judges who are up in arms about the government not obeying its orders. And that's the real import of what Mr. Reveni is saying, is that this is not an accident. This is a strategy.

Mary McCord (16:42)

And it's pretty. Again, like I said, that would be very much against the presumption of regularity out of the Department of Justice that the Department of Justice would actually have a strategy of disobeying court orders. Now, we know from later filings that the department took the position in later filings that Judge Boasberg lost jurisdiction once the planes left US Airspace. But that is a very dubious proposition that certainly had not been represented to Judge Boasberg during that hearing on March 15. There had been no court that said that that's a valid interpretation of the law. Judge Boasberg since then has questioned that. So the fact that even if. Let's give the benefit of doubt to Mr. Bovain and assume that he thought he had a good argument, that the court lost jurisdiction once the planes were out of U.S. airspace and that by the time the minute order came, they were out of US Airspace, you still would not blatantly advise DHS to violate a court order based on what you think you have as a good argument.

Andrew Weissmann (17:43)

You'D go back to the judge. Right. I mean, this is like, of course you would.

Mary McCord (17:46)

And he doesn't just say, it's permissible under law. He says permissible under the law and the court's order.

Andrew Weissmann (17:52)

Right. And it's not permissible under the court's order, right?

Mary McCord (17:56)

That's right. Even if you have a legal argument, it's not permissible under the court's order, which is why you would go back. Okay, so before we take a break, let's talk also about what's happening in the Maryland courtroom with respect to Mr. Abrego Garcia, who in fact was sent to El Salvador. As we've already discussed and listeners will remember that after lots and lots of stonewalling and saying, the government saying that they couldn't get him back, he suddenly was brought back only to face criminal charges in Tennessee alleging alien smuggling and other crimes like that. And he has been detained in Tennessee, however, in, you know, relationship to his criminal case, not any type of ICE detention. And a magistrate judge there recommended that there really was not enough indication or evidence to continue to detain him pre trial. We talked about that magistrate judge's order during one of our episodes that then went to the district judge who oversees that case who is still considering whether Mr. Abrego Garcia should be released from detention. And at one point, Mr. Abrego Garcia's attorneys themselves said, hang on, don't release him yet, you, Honor, because we want to find out what DHS is going to do. They're talking about just putting him straight into detention and deporting him immediately. And we don't want that to happen. So actually, this is so extraordinary. Keep holding him in criminal detention while we can figure this out. And that's what Judge Zenas is now trying to do in Maryland because she's the one who had the case that was originally brought when he was sent to El Salvador. And the government maintains the position that frankly, she shouldn't be asking them any questions now because they think that once he was brought back from El Salvador, any case in front of her was over. Needless to say, she disagrees.

Andrew Weissmann (19:50)

What is it that Mr. Abrego Garcia wants? What is it that she would like the judge to do in Maryland? And the main thing that he wants is so benign, it is to have 48 to 72 hours notice before the government were to seek to remove him. And just to be clear, this is somebody who knows exactly what would happen because it happened to him, where he is just extracted with no notice at all and sent to El Salvador. So what they are saying is, Judge, we would just like to make sure that there is that window of opportunity where we have an opportunity to come back to you to challenge whatever they are seeking to do. In other words, whether they have the facts to deport me. That is, you know, the hearing that he said I was entitled to.

Mary McCord (20:38)

Right. And also remember to make arguments about his own fear of persecution or safety or torture, depending on where they're purporting to send him to. He has an order that he can't be sent to El Salvador, but as we know, people have been sent to other places, including South Sudan.

Andrew Weissmann (20:55)

So let's just, again, in the spirit of not normalizing, Mary, if you were in the government and the position was that this wouldn't even go to court. If I said to you, Mary, what my client would like is 48 hours notice so that depending on what you're planning on doing, we have an opportunity to go to court, you're free to oppose it, whatever it else, but we just want an opportunity to do that. And you would be like, fine, like, that's just not a big deal. That is basically saying, gee, what I'd like is due process. Here's another thing that the government, of course, is saying, no, we don't want to concede that or give you that. The other is one of the things that happened in the hearing in Maryland that I just sort of like, thank God I was sitting down when I was reading this. Do you know how Mr. Abrego Garcia's attorneys learned that he was now back in this country from El Salvador? Did the government call him to say, look, we're bringing him back or he's on a plane or this is when he'll be landing? No, they learned it from the media. Mary, you and I have. I've never been on the defense side, but you and I have been prosecutors. That's what you do. You alert people.

Mary McCord (22:01)

Not in this new world. Because it seems like lots of things we only know because of the media. That hearing. That is a hearing where the judge said essentially, and I'm paraphrasing here, because we don't have a transcript. So this is based on reporters who were in courtroom, but basically that the presumption of regularity is being destroyed because the attorneys standing in front of her could not answer basic questions such as, how is the decision going to be made about where he might be deported to? Who will make that decision?

Andrew Weissmann (22:31)

What are you planning on doing?

Mary McCord (22:32)

What are you planning on doing?

Andrew Weissmann (22:34)

They couldn't answer that. So the judge then called from a witness from the Department of Homeland Security who the judge said was not credible. The judge said, as you said, this is basically, they've thrown out the presumption of regularity. This is, we talked about the presumption of irregularity. And she just had so many adjectives and adverbs that were pejorative in looking at what the government wanted. And one of the anecdotes that has been reported is when the judge asked the government lawyer, it's a very young team. It's very new to sort of the department and to the case, their position. They said, well, I know that Mr. Abrego Garcia would like to be a sitting member of Congress.

Mary McCord (23:15)

Yeah, I couldn't believe that when I read that. It's.

Andrew Weissmann (23:17)

That is the kind of immature statement. It's just so shocking because what's at issue here is something that's just so easy to deal with, which is give him due process. If you want to remove him and you think you have the facts to do it, which you very well may just go ahead, and that's what the courts are for.

Mary McCord (23:36)

And just to be clear, because that seems like such a random thing just for the government attorney to say, this is in the context of basically complaining that he's asking for too much. Mr. Abrego Garcia is asking for too much to get some notice before he gets spirited away, which, given what the.

Andrew Weissmann (23:52)

Government did to him, is unbelievable because.

Mary McCord (23:55)

That did happen to him.

Andrew Weissmann (23:56)

Exactly. This is exactly the wrong case for the government to be on their high horse. Speaking of which, let's take a break and come back and talk about the district judge in LA in connection with what she has termed the ice raids and roving teams and her decision there. Let's take a break and come back and we'll discuss that.

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Mary McCord (25:24)

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Mary McCord (26:02)

Welcome back. As promised and as we talked about at the top of the episode, there were some interesting developments in court in California relating very much to the June, I believe it was June 6 series of ICE raids, which she has called roving patrols in her opinion. You know, people will remember this started at the Home Depot, but it went on to farms and car washes and other places where there are a lot of migrants. And this would be van loads of ICE agents pouring out of their cars and stopping people and detaining them. And so there was some objection to that, wouldn't you say, Andrew?

Andrew Weissmann (26:44)

Yes, there was this just to give a brief primer. If you're going to temporarily stop somebody to question them, meaning that it's against their will, that is a Fourth Amendment seizure. And if it's temporary, you need to have reasonable suspicion. That means you have to have some facts that give you reasonable suspicion that the person before you, the individual, has done something wrong, it can't just be general. It has to be about what is it about that person that they have committed some sort of crime that gives you reasonable suspicion. It's a low standard, but there still has to be something and it cannot be based on impermissible things such as race or national origin. And if you're going to use the factor that something happened in a location, there has to be something specific about the person or if you're going to use an area, because that is what the allegation is. Here they were using specific areas like car washes. That's not enough. It has to be something about your having surveilled that particular location. So for instance, if you knew that there was a gang, had a particular hangout, that gang members were part of Then you can use the location, but it just can't be, I think bad people hang out at X locations, and it can't be something like car washes across the city. And so the issue here for the judge was she was trying to find out from the government, why are you picking any particular person up? Why have you stopped this person and why have you detained them? And normally, in a Fourth Amendment context, the government will give you the reasons to be valid. It has to be something about, you know, we had a specific information about that person committing a crime, or in the immigration context, that that person had committed an immigration violation, that they're here in an undocumented way, they had crossed the border illegally, whatever the issue is. But it has to be specific to the person, and it can't just be which the judge was noting, that the plaintiffs had presented lots of evidence that the people who were being picked up were from black and brown communities and white people were not.

Mary McCord (29:01)

Not being stopped, not being asked for identification, not being asked questions, allowed to walk away.

Andrew Weissmann (29:07)

And even when people were citizens, black and brown members of our community who are citizens, they were still being stopped and still being given a hard time even after they said they were citizens. Right? So that was sort of the record. And the government kept saying, oh, you haven't given us enough time. You haven't given us enough time. And she was like, well, you have all of the information. Just give me something. Like she said, can you just start going through, with respect to each of the named plaintiffs here, what is the reason? And I mean, that's the frustration that you really feel from this judge is she's like, you are not actually giving me a valid reason other than me seeing that it's going to be race and national origin, and that you are just picking up any black or brown person at a car wash. And the stories are horrendous. The named plaintiffs, the evidence that was put before the judge. And I'm not saying that there's potentially no counter evidence. It just was not presented to the court.

Mary McCord (30:06)

And so what the court did is she said, I'm going to enjoin this. And she's very specific in each of the things you pointed out. She said, first of all, I'm granting the application for a temporary restraining order. Now, that's the most limited. It's 14 days, and in the meantime, she'll have a full preliminary injunction hearing. She says that the dhs, as required by the Fourth Amendment of the United States Constitution, defendants are enjoined from conducting detentive stops, meaning stops that detain people in this district unless the agent or officer has reasonable suspicion that the person to be stopped is within the United States in violation of U.S. immigration law. And more importantly, defendants may not rely solely on the factors below that she lists alone or in combination to form that reasonable suspicion. And here's those factors. Apparent race or ethnicity, speaking Spanish or speaking English with an accent, presence at a particular location, for example, a bus stop, car wash, tow yard, day laborer, pickup site, agricultural site, et cetera, or the type of work one does. And I think the reason I wanted to read that is she sees exactly what the evidence was showing her. Right. That this is all based on hunches. I'm going to go to this place where I think there's a bunch of immigrants and we're just going to start stopping people with no, no particularized reasonable suspicion and nothing we've even been able to articulate that that location is a place where people illegally present will be.

Andrew Weissmann (31:42)

And one of the things the government did here, which is again in the category of I can't believe it, I mean, I can, is in trying to say they're justified, they said, but, Judge, look, when we stopped this person, they actually were doing a crime and they. We did arrest them. And so it was legitimate without ever addressing, as the court notes. Yes, but why did you stop the person? The fact that you got lucky or your hunch proved out is exactly what the Fourth Amendment is intended to stop. You don't get to break into, for instance, someone's home and say, well, look, I actually found some evidence there. So it justifies going in. The idea is that you have to have that beforehand. And here it's just remarkable to me that there's such a lack of understanding what the law is, which is what the judge says. I mean, this is just a fundamental difference as to like them not understanding what the Fourth Amendment requires, which is that you have to have that before you do the seizure, not after.

Mary McCord (32:40)

I mean, it's like due process. Right. Should happen before people are spirited out of the country to a third country. I mean, I just feel like we're seeing the same movie over and over again with just slightly different factual scenarios.

Andrew Weissmann (32:52)

And with the funding that we talked about last week, which is going to go through the roof, I'd like to see a lot of that funding going to training on what you can and cannot do. But I obviously, needless to say, I don't think that's what's going to happen.

Mary McCord (33:08)

Yeah, no kidding. And before we switch gears to what's kind of been going on as a result of recent Supreme Court emergency docket decisions. I just want to make note of a related matter that also was decided in California last week, and this one was not against ice. It was actually against the Los Angeles Police Department. But this was where, you know, so many of the things we've just been talking about, these raids, right? These are the very raids that led to protests in la, especially that raid at the Home Depot that also ended up leading to the president authorizing federalization of the National Guard and deployment of Marines in order to assist ICE in carrying out these raids. All this was going on at the same time. And a group of journalists and journalistic associations brought a lawsuit against the LAPD to say, stop shooting less lethal munitions at journalists doing their job, exposing them to tear gas, forcing them away from public places, or using other forms of physical force because the journalists are trying to cover these protests. And there are numerous, again, talk about the evidence, numerous facts that were presented to the judge that showed journalists, even when they were not particularly close to the protesters, like more than a hundred feet away or dozens of feet from police officers, not even near any protesters were shot with rubber bullets, et cetera, pushed by an officer on a horse. They. These kind of things, people still who are suffering injuries from this. And guess what? The judge there also said, stop doing that. Stop shooting rubber bullets at journalists reporting on things that are happening in public.

Andrew Weissmann (34:52)

On streets and sidewalks in America.

Mary McCord (34:55)

In America.

Andrew Weissmann (34:56)

So, Mary, I wanted to turn to something which is you're our podcast expert on birthright citizenship, and as you mentioned at the outset, there has been movement on that because your case and sort of companion case saw some activity. And then we'll also discuss another Supreme Court case. But what happened? Where are we now in those cases?

Mary McCord (35:22)

Sure. So I think listeners will recall that immediately, within a couple of hours of the Supreme Court issuing its decision that narrowed universal injunctions. It did not even talk about the merits or the constitutionality of the Birthright Citizenship Executive Order. Just said universal injunctions have to be limited to only what's necessary for complete relief, and that ordinarily will not include anyone other than the actual named parties. So we kept our case was one of the cases that was up in the Supreme Court. Ours was brought on behalf of pregnant mothers and two immigrant rights associations. So the preliminary injunction stayed in effect as to them. But the universal part that applied to everyone else in the rest of the country is what got ratcheted back. So within two hours of that Supreme Court ruling in our case we refiled, amended our complaint as a class action, sought relief for the entire class of babies who had been born or will be born after February 19, who would be subject to that order and their parents. And then the aclu, which also had had a case, brought a new case also alleging a class action. Both of these got briefed very quickly. And the judge in that ACLU case, a judge in the district court in New Hampshire, he issued last week, I think it was on the 10th, that was Thursday, he did grant a preliminary injunction and provisionally certify the class again, similarly, basically, the class of babies who are born or who will be born who would be deprived of citizenship under this order. He did not certify that class on behalf of their parents, but just on behalf of the actual babies who would be denied citizenship. And right now there is a preliminary injunction class wide, which means wherever you are in this country, if you are subject to that executive order, it has frozen and you're a baby born now, who otherwise would be deprived of citizenship will have citizenship. Our case also is fully briefed. We expect the government objected, I will say, to the class in both our case and the case in New Hampshire, and we expect the judge to rule in our case very soon. Meanwhile, the states also. There were two groups of states that had obtained universal injunctions. They have slightly different arguments about why they need universal relief in order to have complete relief. Because they have argued that, what about when somebody moves into our state from a state that didn't have citizenship? How do we handle that like the burden is on us, so we need this to be universal. That is also being briefed. But the bottom line for listeners is right now there is an injunction class wide across the country that means that babies are protected.

Andrew Weissmann (38:02)

And the judge who issued that, just so everyone knows, is a judge who was appointed by a Republican president and reportedly said in the course of the argument, this is not a hard case.

Mary McCord (38:18)

That's right.

Andrew Weissmann (38:19)

And just to be clear, this is every single judge, Mary, correct me if wrong, every single judge who has evaluated the merits of the case has said that the government loses.

Mary McCord (38:31)

That's right. On the constitutional issues, the binding Supreme Court precedent, the history of treating people as citizens when they're born. Here, every judge has ruled against the government on this. Which is why, you know, I think that the government didn't take the merits up to the Supreme Court, only took the scope of the injunction up to the Supreme Court in order to try to live to fight another day on the merits. But they're fighting it now and that day will finally come in the Supreme Court. I do, I do think.

Andrew Weissmann (38:57)

Yeah. So, Mary, should we take a break and come back to talk about the appeal that was taken the cert petition by the government of another California decision by Judge Ilston from San Francisco, a sort of longtime respected district court judge, and come back and talk about that and then end by talking about former director Comey and CIA director John Brennan?

Mary McCord (39:26)

That sounds like a great plan. Let's do it.

Andrew Weissmann (39:28)

Okay, let's do it.

Ted Danson (39:38)

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Andrew Weissmann (40:00)

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Mary McCord (40:28)

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Andrew Weissmann (41:06)

Welcome back. So, Mary, I have a question for you. This is to give a brief recap and then I want to ask you a question because Judge Ilston has this sort of very large case in front of her where what is before her is reductions in force in terms of an executive order saying there should be reductions in force and one agency saying there should be reductions in force. But she doesn't have actually the actual reductions in force. The actual plans are not yet articulated. But it's this huge scope many, many different agencies. And that case was before her. And she looked at a lot of evidence, heard lots of arguments, and she entered a temporary restraining order saying, like, let's just put everything on pause here. The key issue is when you do a sort of massive reduction of force as opposed to sort of small rearranging of things or, you know, firing somebody or putting them on probation. But if you're doing sort of a massive reduction in force or restructuring of agencies, you need Congress. That is Congress's role. So she sort of looked at this and said, this is what you're planning on doing. I've looked at all of this and said it needs to be put on hold. And that's when it went up to the Supreme Court. And as sort of an emergency, once again, the government does this emergency. As Justice Sotomayor said in a different case, sort of they have him on speed dial and the court took it and the court decided 8 to 1. And we'll talk about the one which is Justice Jackson, 8 to 1, that they were going to stay the Judge Ilston stay, in other words, sort of essentially get rid of it. But here's my question, Mary, as I read the Supreme Court, and I think this might explain why Justice Kagan and Justice Sotomayor don't join Justice Jackson and dissent, is that this is more of a procedural thing where they're saying, let's wait until we actually have a full record of what these reduction enforced plans are. And so I think a lot of the reporting seems to have made it a bigger deal than it actually is. But I didn't know if I'm being too Pollyannish, whether you thought there's more to worry about here.

Mary McCord (43:22)

So that's a perfect question, because the way that those eight, including Justice Kagan and Sotomayor, who said they definitely agree with Justice Jackson, who had dissented, that the executive branch cannot undertake major reorganizations without Congress. But they were saying, but we don't have the individual plans. This is a facial challenge to the executive order that required agency heads to promptly undertake preparations to initiate large scale reductions in force consistent with applicable law. And so even Justice Sotomayor and Justice Kagan said it says consistent with applicable law. You know, a facial challenge to this executive order fails here, but it's open for the judge to go ahead and review individual plans that are required by this executive order. The problem with that, Andrew, is when Judge Ilston ruled On this on May 22nd on this preliminary injunction, she said at this stage of the case, the evidence discredits the executive's position that, you know, that nothing was yet happening. And she said on February 11, the President ordered agencies to plan for large scale reductions in force or RIFs and reorganizations. She said the agencies began submitting agency RIF and reorganization plans for review and approval by the President's centralized decision makers. And then she says agencies then rapidly began to implement these reorganizations and large scale reductions in force without congressional approval. In some cases, the plaintiff's evidence showed agency changes intentionally or negligently flout the tasks Congress has assigned them. After dramatic staff reductions, these agencies will not be able to do what Congress has directed them to do. And she gave a series of illustrations in footnotes about the National Institute for Occupational Safety and Health eliminating 221 of 222 positions that research health hazards. Similar big, huge reductions in force at the office of Head Start, the Farm Service Agency, the Social Security Administration, 7,000 employees, right? And then here's the kicker. Defendants fought the court's order for them to disclose the most relevant documents, the agency's RIF and reorganization plan plans themselves. In other words, she said to them back in May, show me the individual plans. And they said no. And it goes to the Supreme Court. And eight of the justices say, this was a facial challenge. You really need to look at the plans and, you know, go back and basically do a do over. But like, the reason I read from that is Judge Elston, she asked for the plans and the administration didn't give them to her.

Andrew Weissmann (46:02)

Right? And to that point, that's like totally fair. Everyone knows Jesse Elston and in light of this case, has now ordered the government to give her the plans, which, by the way, she had done. But that's like, she's like, okay, now the Supreme Court is saying that essentially they're waiting to see me rule on the specifics of the plans and whether they require congressional approval, which by all accounts it appears that they're going to need to because these are huge reductions in force. And so she's like, so now I need them, so you need to turn them over. I do think that one of the things that other people have said the same, which is that Justice Jackson is one of, I think, only two justices who served on the district court that is at the trial level, and her opinion is replete with the role of the Supreme Court, is not to second guess the factual findings that are made by the district court when there's a factual basis for it. They can't obviously just make things up and, you know, you really sense that she understands the role of the district judge. And I think she brings that experience to the bench in a way that I thought was sort of. You could easily see why she was the lone dissenter, because she had come from that background and understood what Judge Ilston was dealing with. I think she also is basically. I mean, she wrote it in a much, much more erudite way than I'm about to say, but she basically is saying, get real. I mean, you don't think this is what the President's doing? You've got to be kidding me. That's right.

Mary McCord (47:37)

Everything about that. Yeah, let's get out of the trees and let's start looking at the forest, because we know what's happening here. And I bet you put your. Your finger exactly on it. She was saying, we need facts to answer this question. The rest of you are ignoring those. But the district court didn't ignore those. She spent over 50 pages talking about the facts. Justice Jackson says what is at issue here is whether the executive order affects a massive restructuring of the federal government, the likes of which have historically required Congress's approval on the one hand, or minor workforce reductions consistent with existing law, on the other. One needs facts to answer that critical question. And the district court not only issued such preliminary findings based on actual evidence, it is also the tribunal best positioned to make that determination, at least initially. And then she says, put differently from its lofty perch, far from the facts or the evidence, this court lacks the capacity to fully evaluate, much less responsibly, override reasoned lower court fact finding about what this challenged executive action actually entails.

Andrew Weissmann (48:43)

So don't worry, Mary. This isn't an anecdote. But I. When I was at the FBI, we had a case before Judge Ilston, and this probably should be viewed as high praise. She ruled against us, and I remember reading her opinion and saying, you know, it was really thoughtful. I mean, I disagreed with her, but she was so thoughtful. She was also very respectful. She immediately said, look, I'm going to stay my decision so that you have a time to appeal it. You know, as long as you do it within a certain amount of time. She's not saying, oh, I know the answer. And she understood our position, and she understood why we were taking that position. So even though she ruled against us, I really think I just ended up thinking, oh, that this is like a very good judge. I was just very happy to be in front of her, you know, yeah, that's what you want from a judge, is somebody that you sort of go, oh, you know what? They really listen to the facts and they're thoughtful in the way they come out.

Mary McCord (49:37)

That's their job.

Andrew Weissmann (49:38)

Yeah, absolutely. So should we talk about.

Mary McCord (49:40)

Yes.

Andrew Weissmann (49:40)

John Brennan and Jim Comey? Because the news last week was that the government was opening some sort of criminal investigation with respect to Jim Comey. It seems. No one's really talking about why, but it seems to have something to do with some post he put out involving some. Something he saw on the beach, which he took down when someone said it could be viewed as a threat. And obviously there shouldn't be language that's, that's viewed as threatening, but that just seems like a total tempest in a teapot and people really trying to take advantage of it. And listeners to this podcast know that Mary and I are not exactly fans of Jim Comey, but this is just sort of over the top. And with respect to John Brennan, the claim that we're going back to 2016 to the issue of, I mean, if, if that is what the investigation's about, which is whether Russia interfered with the 2016 election, as you mentioned, Mary, that is not a disputed fact. That is something that has been proved over and over again. It has been looked at by, obviously, the Mueller investigation. It was looked at by the inspector general, it was looked at by John Durham. It was looked at by the bipartisan Senate committee that Marco Rubio was on and signed off on, saying it was the most thorough investigation and saying that. And it's just not disputable. There's two indictments that the Mueller team brought where you could read in black and white exactly what they're doing. I mean, this is.

Mary McCord (51:12)

There's hard evidence and let's be clear, also John Durham, you mentioned his name, that was a special counsel appointed to investigate the investigators. Meaning investigate John Brennan, who was the CIA director at the time.

Andrew Weissmann (51:26)

He met and was interviewed by them.

Mary McCord (51:28)

That's right. And so. And John Durham came up with zilch, zip, nada. Right. Because there is not. There is. Was nothing there.

Andrew Weissmann (51:36)

It's also something that is, you know, there's typically a five year statute of limitations. And I famously don't do math. Yeah. I don't do math in public, but we're 2016 and we're 2025, and that's over 5.

Mary McCord (51:51)

Yes, exactly.

Andrew Weissmann (51:52)

So I'm just not really sure what this could be based on. And it sort of reeks of selective investigation and selective prosecution and a bit of a, a distraction of like, you know, maybe it's red meat. To their base to distract them from other things that are going on. Obviously, people listening to this will have followed the whole Jeffrey Epstein brouhaha that's going on within MAGA world. But whatever the reason is, it's not an investigation that should have been announced publicly, that's for sure. And it's hard to see what the legitimate reason is. Having said that, I just want to make clear, you know, we obviously are not in the government. We don't know what they have, but nothing that's been reported and nothing about it signals a good faith investigation.

Mary McCord (52:39)

That's right. What it signals is consistency with promises made during the campaign to seek retribution and go after people believed to have wronged the sitting president. So it's a. It's not a good sign at all. And we will, of course, follow this and we'll be back with more. And there's so much more to talk about because one of the things we didn't even get to is Pam Bondi firing the top ethics official. Who would want to be bothered with the ethics official telling you what you can and cannot do? Two thirds of the federal programs branch of the Department of Justice that defends the government in all these cases we talk about are now gone. Not all because they've been fired. In fact, I think most of them were not. They're gone because they just don't feel comfortable defending the administration. And then they end up in a position like some of the lawyers we've been talking about today who cannot answer the court's questions because they're not being able to get the information they need to answer those questions. So things at the Department of Justice are like I have never seen in my lifetime. And very worried about the department.

Andrew Weissmann (53:39)

Yeah, very worried about the department and very worried because of. It's a reflection of what is happening in the real world on the ground in terms of these sort of mass firings, in terms of the roundup of people based on, according to know at least one judge, discriminatory and unconstitutional factors. So it is really great that people are staying engaged and listening to this podcast, because I know this one was. And not a lot of them lately are uplifting. But it's really important for people to understand what is going on and what arguments and what positions the government's taking so they understand just how outlandish it is and how different it is than the norm.

Mary McCord (54:24)

Yeah. So much more to come. But that's a wrap for today.

Andrew Weissmann (54:29)

Sounds good. So next week we're going to actually do our recording on Wednesday not on Tuesday. So today's a Monday, a day early.

Mary McCord (54:37)

This week, a day late next week. You know, that's how it goes sometimes.

Andrew Weissmann (54:40)

Exactly. So sorry about that. Thanks for hanging on with us and thanks for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content, like the recent war powers deep dive that Mary and I did with Tess Bridgman.

Mary McCord (55:03)

This podcast is produced by Max Jacobs. Our intern is Colette Holcomb, Bob Mallory is our audio engineer, Bryson Barnes is the head of Audio production and Aisha Turner is the the Executive Producer for MSNBC Audio.

Andrew Weissmann (55:17)

Search for Main Justice Wherever you get your podcasts and follow the series, Finding.

Ted Danson (55:38)

The music you love shouldn't be hard. That's why Pandora makes it easy to explore all your favorites and discover new artists and genres you'll love. Enjoy a personalized listening experience simply by selecting any song or album and we'll make a station crafted just for you. Best of all, you can listen for free. Download Pandora on the Apple App Store or Google Play and start hearing the soundtrack to your life.