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Main Justice
Unflinching Obligation
00:59:43
A look at disturbing political violence in Minnesota amid political protests across the country. Plus: a press conference seizure and a losing appeal.
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- [00:01]
Jeff Lewis
Hey, this is Jeff Lewis from Radio Andy live and uncensored. Catch me talking with my friends about my latest obsessions, relationship issues and bodily ailments. With that kind of drama that seems to follow me, you never know what's going to happen.
- [00:13]
Reba McEntire
You can listen to Jeff Lewis live.
- [00:15]
Mary McCord
At home or anywhere you are.
- [00:17]
Reba McEntire
Download the SiriusXM app for over 425 channels of ad free music, sports, entertainment and more. Subscribe now and get 3 months free.
- [00:27]
Mary McCord
Offer details apply.
- [00:32]
Jeff Lewis
Avoiding your unfinished home projects because you're not sure where to start. Thumbtack knows homes so you don't have to don't know the difference between matte paint finish and satin or what that clunking sound from your dryer is. With Thumbtack, you don't have to be a home pro, you just have to hire one. You can hire top rated pros, see price estimates and read reviews all on the app. Download Today.
- [00:59]
Mary McCord
Foreign.
- [01:04]
Andrew Weissmann
Welcome back to Main Justice. It is Tuesday morning, June 17th. I'm Andrew Weissman and I'm here with my co host Mary McCord. How hi Mary.
- [01:14]
Mary McCord
Good morning, Andrew. How are you today?
- [01:17]
Andrew Weissmann
Last week I did this thing where I said hi Mary, let's get started.
- [01:21]
Mary McCord
That's true because we had so much no time to chit chat.
- [01:24]
Andrew Weissmann
I have in front of me I was creating this list of the things that we thought we would talk about and then there were all these things where I was like, but I also want to talk about so like this like let's just say this is like an all employment act for podcast since January 20th. Because there's so much and there's so much that's legal. There's so much that's important we're going to cover. But probably not today because we're waiting for the written decision. But there was an oral decision from Massachusetts that was remarkable from a Republican federal judge about racial discrimination and LGBTQ discrimination. There's the renewed travel ban. There's so many things that deserve their own.
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Mary McCord
Yes. Their own episode.
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Andrew Weissmann
Right.
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Mary McCord
If not, you know, not just a segment. I know it's very tough.
- [02:14]
Andrew Weissmann
What is going to be in our A, B and C block.
- [02:17]
Mary McCord
Yeah. Well, we will start by continuing what we discussed last week in terms of what's been happening in Los Angeles. The use of Title 10, United States Code, Section 12, 406 to federalize the National Guard and also the Secretary of Defense ordering Marines to deploy there. When we recorded last week that was being challenged by Governor Newsom in the state of California, the district court there, Judge Breyer issued a temporary restraining order that has been already appealed. An emergency motion for a stay is now fully briefed. Argument will happen today just right as we are finishing recording this podcast. Meanwhile, the preliminary injunction is being briefed still in the district court because that was just a temporary restraining order. And argument on that will be Friday. So a lot to cover there.
- [03:03]
Andrew Weissmann
And Mary, you know what people should listen to. Mary just did this incredible outstanding job in the last episode in walking through all of the sort of key legal pieces in connection with what's going on in la. But today there's we have so much more meat because we actually have the decision and we have the papers to talk about. So we'll actually be getting into that. But if you think, wait a second, I didn't take last week's class.
- [03:28]
Mary McCord
Right. Go back to the next remedial education. Right.
- [03:32]
Andrew Weissmann
Remedial. Mary McCord. Right.
- [03:34]
Mary McCord
Military authorities. And then you'll be ready. Then we will break down the federal charges and talk also about state charges against the shooter who killed a Minnesota lawmaker and killed her husband and shot two others. And the federal complaint is pretty darn chilling. He also went to two other state legislators homes. I mean it is quite the read. And we will talk about that. I also want to spend some time, Andrew, talking about what happened to Senator Padilla last week in California when he was trying to ask a question of Secretary Noem. That's the DHS secretary who was talking about the military deployment there was and he was seized for purposes of the Fourth Amendment. And I want to talk about what that means. What's a seizure, what's an arrest?
- [04:22]
Andrew Weissmann
This finally is my core competency, you know, because I teach, I teach Fourth Amendment. So this is one where I was like, I know exactly what this is.
- [04:30]
Mary McCord
Yeah, let's help people understand that because I think sometimes the verbiage around arrests and seizures and the Fourth Amendment gets a little bit muddled. And then we will try to hit some of these other bazillion things that all deserve attention even if we're not going to be able to give them the full attention they deserve today. And we will do our best. And that includes the decision you mentioned in the had to do with the termination of NIH grants and there much other activity, including last week there was an argument in the Manhattan Trump case, but it was a federal argument about removal. We talked about it a little bit. And there was also a denial of en banc review of the verdict in the Eugene Carroll case.
- [05:12]
Andrew Weissmann
So I know this is going to be like taking us back to talking about E. Jean Carroll. And we're going to talk about the effort to take the case federal. And we're obviously going to have a fairly somber discussion in the B block about the murders and the attempted murders. And I agree with you, it was completely chilling. Just to be clear, Melissa Hartman and her husband Mark were fatally killed. John Hoffman and Yvette were shot. And remarkably, they are alive. They're in the hospital. But as you said, those are the four people who have been sort of the focus. But there were also, it's detailed, there were two other attempts. The story is dramatic, but I just, I'm sure everybody who's listening, it's hard not to have just enormous sympathy and prayers for the families and the victims. And it's. It's horrendous.
- [06:03]
Mary McCord
It is. And let's not forget this was the morning of the no Kings protests planned all over the country, including in Minneapolis, on the same day that the President was hosting a military parade here in Washington, D.C. on the 250th anniversary of the army, but also the President's birthday. And that, you know, has stirred a lot of controversy about that type of a show of force here on the streets of the US we're not celebrating the end of some war or something like that. It was really a show of military might. And that's partly why those protests were planned. And protests did go on. And by all accounts, there were large numbers of people in many, many cities, big and small, blue cities and red cities, to use those terms, which is important. And it's important, you know, for Americans to be exercising their First Amendment rights. And I'm glad they weren't cowed by this shooting. But nevertheless, you know, that's nerve wracking to know that there's somebody out there committing acts of violence. And the shooter in his vehicle did have no Kings flyers. So that's why I'm sort of bringing these things up in connection with each other. And the manhunt was still going on during those protests and rallies. So the police understandably said, we advise you not to go until we've captured this person. But people were like, no, this is important. We need to exercise our First Amendment rights.
- [07:31]
Andrew Weissmann
And there was sort of what appears to be or is reported to be a sort of form of hit list. Y and as you said, he did in between shooting Mr. And Mrs. Hoffman, he then did have these two other attempts before he was able to shoot and kill Melissa Horton and her husband Mark.
- [07:51]
Mary McCord
I mean, should we just get into this complaint, since we've now gone so.
- [07:54]
Andrew Weissmann
Far into this, I just want to make a point that the victims of this violence, it includes Republicans and Democrats. Let's start with Donald Trump himself was the victim to what appear to be assassination attempts. You have Steven Scalise, to go back in time a little bit, but you also have Nancy Pelosi's husband brutally attacked. But much more recently, in addition to Donald Trump, you have Governor Shapiro.
- [08:23]
Mary McCord
That's right.
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Andrew Weissmann
You have the two people, these two young people who coming out of, I believe it was the end of the.
- [08:29]
Mary McCord
Jewish Museum just a few blocks from Georgetown Law, where I work.
- [08:33]
Andrew Weissmann
Right.
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Mary McCord
Actually about one block. Yeah.
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Andrew Weissmann
And so the amount of both political violence of people who are actually elected officials and then essentially bystanders to it, whether they're related, obviously, you know, we know about Judge Salas's son, where somebody was trying to harm Judge Salas and in the course actually went to their home, which is like what happened here, going to their home. And there Judge Salas son was killed. And she speaks about that, if anyone wants to hear her. She has spoken with Nicole Wallace about that in ways that it's very, very hard to listen and not cry. At least I find that it's very, very moving.
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Mary McCord
Yes, I met her at a conference on threats to judges that I was speaking at last fall. I met her and her husband. They're absolutely lovely. And talk about taking one of the, probably the worst thing that has ever happened to them in their lives and using it to speak out about political violence. She's been really a remarkable example of doing that.
- [09:36]
Andrew Weissmann
So should we just talk for a second about what is alleged? And here we have somebody who wore a mask that again, these are all allegations. I want to make sure everyone understands that this all has to be proved in court. But the FBI affidavit sets out that the alleged perpetrator had a sort of mask on that sort of made him look bald and covered his face.
- [09:59]
Mary McCord
Yeah. And let's just pause for a second there because we're not just talking about like a Halloween mask. We're talking about one of these hyper realistic silicone masks that fits close to the face so that it's, it's not immediately obvious a person has on a mask. And we will put a link to this affidavit in the show notes. There are photographs in the affidavit. There must have been some cameras like that. People have, you know how people have cameras at their front door.
- [10:25]
Andrew Weissmann
But one of the things he did is he had A he dressed as a police officer. He had his car set up like.
- [10:31]
Mary McCord
As a police car with sirens, lights, et cetera.
- [10:34]
Andrew Weissmann
He had a flashlight. He said, I have a warrant. He said, it's the police. And he had a flashlight that he flashed in their face so they wouldn't get a good look at him. But one of the first things he said is, do you have any firearms? And with, I think it was with Mr. And Mrs. Hoffman, they said, we do, but they're locked up. And then they realize at some point and they say you're wearing a mask, you're not the police. He said, this is a robbery. They try to shut the door and he shoots through the door. And he manages to shoot. It's just unbelievable. They're Alive. John Hoffman nine times and Yvette Hoffman eight times. The daughter whose home calls the police 2am 2am Right. The police arrive and there's just a sense of really interesting police work because not only are they there and trying to get them help, but they then go to what they have identified as nearby elected officials. And that's how they know about these other attempts because one of them, they have the perpetrator ringing on the doorbell and the person's not home.
- [11:44]
Mary McCord
And in another, again, you know, photographs in the affidavit of him at this other elected official's home.
- [11:51]
Andrew Weissmann
And the other he's in a car as the police go by and essentially he gets warded off because he sees the police going to the home to check on it. So they don't realize that he's the bad guy. And so he then moves on. And so when the police finally get to the home of Melissa and Mark, they actually are there while he is shooting them.
- [12:14]
Mary McCord
That's right.
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Andrew Weissmann
And runs off.
- [12:15]
Mary McCord
And this is what's so tragic for just moments. And let's just be clear for people police on their own after they learned about the shooting of Senator Hoffman and his wife said, we better go do wellness checks on other elected officials in the area. So they were just being proactive in going to their houses. Right. When they get to Representative Portman's home, they see this black Ford Explorer parked outside the home that looks like a squad car. It's got police style lights, they're on, they're flashing. The license plate says police. Now it's a fake license plate, but it says that they see him dressed in dark colors standing near the front door facing the house. Then it says, and I'm just going to read it. Moments after their arrival on scene, Bolter fired Several gunshots into the house as he moved forward entering the Hortman's home. Imagine your law enforcement. You're getting there. You're seeing that in dash cam footage from the scene. Moments after Bolter fired those shots, as he moved into the house, a second set of gunshots can be heard. At the same time, several flashes appear in the entryway windows. And then it's at that time, officer moving forward to the home's front doorway. They see Mr. Hortman lying on the floor. They approach the fallen Mr. Hortman, who had been struck by multiple gunshots. And then, then they also find Representative Hortman suffering from multiple gunshots. Meanwhile, Bolter flees and there is some gunfire exchange. He leaves his car there and flees.
- [13:40]
Andrew Weissmann
And this reads like such great work. And, you know, it's going to relate to, like state enforcement. This is what they do. But it was so smart. They didn't know about this list. They didn't know what this was. But it is the idea that there was targeting of four elected officials, and presumably that's part of the motive. And then people who are standing by who were spouses of them and their other victims, such as, you know, the daughter who called the police. It is so terrifying because of the string of violence in this country that is so unacceptable without sort of a outcry on all sides. And, you know, and you really got a sense of this, how tight knit the Minnesota community is. Should we talk for a moment about what's been charged?
- [14:29]
Mary McCord
We should, but I just want to complete the picture with the good police work after that. Right. Because this is when they find in that vehicle, they find five firearms, semiautomatic assault style rifles, a large amount of ammunition, a medical kit, and these notebooks, right, Several notebooks of handwritten notes, names of more than 45 Minnesota State and federal public officials, many of them with addresses. There's a list in these notebooks of different search engines which you can use to find people's addresses. Right. They then, you know, use GPS in the SUV to see the trip history of this car. And that's when they realize all the places that he's gone to. They ultimately find discarded a Beretta 9 millimeter semiautomatic handgun, three magazines just a few blocks away, the mask, flashlight discarded a few blocks away. They then do additional investigation. Right. Talk actually with Mr. Bolter's wife, who's cooperative, use cell phone location data, talk to his roommate because he also sometimes shared an apartment in Minneapolis due to work there. And all of this, they're able to piece together this effort that took some time. Right. The ordering of this specialized mask, the ordering of all these other materials, putting this all together, all this research to find out where people lived. That's why I think ultimately one of the charges that has been announced is a federal stalking charge. And it's interesting because I think people are might be thinking, how does stalking apply here? But it's under federal law, when with the intent to kill, you use the mail, interactive computer services, electronic communication services, et cetera, to engage in a course of conduct that places a person in reasonable fear of death or seriously bodily injury to that person. That is a federal crime of stalking.
- [16:27]
Andrew Weissmann
Right. And then there's sort of related firearms offenses related to that stalking.
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Mary McCord
Those are including killing somebody while committing stalking. Right.
- [16:35]
Andrew Weissmann
With a firearm. That's sort of the federal charges in connection with a complaint, not an indictment yet. But that's right. Obviously will be. There are also state charges that right now are second degree, but they clearly, when this goes to indictment, will be first degree. And it goes to very much what you're saying, Mary, which is this idea of premeditated.
- [16:56]
Mary McCord
Yes.
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Andrew Weissmann
So there will be substantial charges at both the state and federal level. The proof seems overwhelming, including the fact that you will have eyewitnesses who are victims. I've seen cases like this where someone who has been shot but not killed is testified. And there was a case, a famous one in New York, where the person represented themselves and the victim was literally said, Mary. Yes, I remember seeing you shoot me.
- [17:26]
Mary McCord
Wow.
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Andrew Weissmann
I mean, so like. So here the proof seems overwhelming. There has been a lot of spin on the far right suggesting that this person is somehow a Democrat or the Democrats are responsible for it. And all of that is false disinformation. We don't yet know the motive. Obviously, there's evidence from which one can infer motive. It's not required as long as it was intentional or premeditated. But in terms of the charges so far. But this idea of trying to blame and immediately view this through a political lens is so detrimental. That's one of the reasons I wanted to start with the fact that political violence has been something that's affected all sorts of people, political people, not political people. And it needs to be seen that way. I mean, I know I'm stating the obvious, but this is one where that's the first thing out of the box was to blame this on the Democrats. And if I just, you know, I'd be saying the same thing if someone said blaming it on the Republicans, I mean, this is one where the talk of violence is just not helpful. I mean, we have talked about this. Many people have talked about this kind of language is going to lead to this. But also think about all of the ways that there's disincentives to being a public official, disincentives to being an election worker, to doing anything out of principle. Where you put yourself in the limelight is that these are things we want people to do. Even if you disagree with them, you think politically, you know, there's taking a view that you disagree with. Like, as long as they're acting in good faith, that's what the country's for. And it's just crazy that that is not. This is the kind of discussion, Mary, that I had in fifth grade, not now.
- [19:11]
Mary McCord
Well, and one sort of hopeful thing here is the entire congressional delegation, Republicans and Democrats all jointly put out a statement denouncing this. Right. They at least did not make it into some sort of attack on the opposing party. This is wrong. It doesn't matter what party you are. Political violence is not acceptable in the United States.
- [19:34]
Andrew Weissmann
So, Mary, should we take a break? Because it doesn't relate directly, but the idea of, as you mentioned, political violence as a deterrent to speaking, to protesting, and the idea of people getting arrested, deported, summarily arrested, as we saw, and I'm using that term sort of advisedly with the sitting senator of California is thrown to the ground and he is seized, in my view, in violation of the Fourth Amendment. But admittedly, we don't know all the facts. But let's take a break and then talk about the legal issues and some factual things that have happened in connection with the events in la.
- [20:15]
Mary McCord
That sounds good.
- [20:24]
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- [22:28]
Andrew Weissmann
Mary let's talk about Judge Breyer because he wrote a decision and I thought one way to talk about it is why he thinks he has to rule, why he has jurisdiction and why this is not sort of like oh judges, you have to stay out of this. And then what he said about is this or is this not a rebellion? And the second ground which was was federal law enforcement unable to do its job? Those were sort of, as people remember from last week, those are prerequisites that would one or the other were needed. And then he deals with this sort of procedural issue about why the governor was asked to do anything, right? So I thought one of the nicer parts of the decision was when he talked about what the court's role is here. Because just to be clear, this administration's view is butt out, you have no role whatsoever. That is what they are saying. You have no role.
- [23:22]
Mary McCord
They said even if the President gave no reasons at all, the government, at least at argument said the court couldn't review that. It's just non reviewable.
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Andrew Weissmann
One of the things that Breyer said is, and I'm just going to read one sentence which is he said the federal courts, quote, have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given meaning their duty bound to say what the law is. And so we're going to turn to sort of what is a rebellion and what does the statute mean? But remember, this is a congressional statute with words in it and limitations in it. And the court is the one that gets to say, has one branch or the other violated that and usurped the role of the other? It is just, we are not living in a dictatorship. We are not living in a land where there's only one branch. And it was very welcoming to see Judge Breyer say that.
- [24:20]
Mary McCord
Yeah. And, you know, I think he was really aided and I think we foreshadowed this last week in our episode by the fact that even though, you know, there is such a thing as a political question doctrine where courts will refrain from even taking jurisdiction and ruling on issues where they are totally committed to the discretion of one branch and when there's no real standards for assessing them. But he says that's not the case here. And we've, you know, we just had the Supreme Court and the lower courts that have followed the Supreme Court when the Supreme Court said in response to a very similar argument by the government, the government argued with respect to the Alien Enemies act that courts have no role in deciding whether there has been an invasion or predatory incursion by a foreign nation. That's a political question. They should have no role. The Supreme Court disagreed. Said although judicial review under the Alien Enemies act is limited, there can be judicial review on questions of the interpretation and constitutionality of the act. Interpretation of the act, what Judge Breyer then says is like, since then, several judges have interpreted what invasion or predatory incursion means, and many have now found it doesn't mean what trend has done in the United States. And so that's what Judge Breyer relies on to say, I can interpret what Congress meant when it said rebellion.
- [25:43]
Andrew Weissmann
And he does.
- [25:43]
Mary McCord
And he does.
- [25:44]
Andrew Weissmann
And he says there are four factors that he comes up for. What is a rebellion, by the way? I think this is such a great thing for listeners because in many ways, this is sort of what the law does. It's articulating here things that are and gives reasons for it and citations, but something that I think may feel intuitively right to listeners as to what a rebellion is. Now, the government took the view that anytime anyone resists law enforcement, that's what Congress meant. That's a rebellion. And the Court said, no, that is not a rebellion. There are four factors that the judge says he looks at. It must be violent. It must be organized. It must be open and avowed, and it must be against the government as a whole.
- [26:28]
Mary McCord
That's right.
- [26:29]
Andrew Weissmann
And he said, I find it particularly deplorable that the government would look to protected First Amendment activity as some sort of evidence of a rebellion. And the people who are peacefully protesting obviously are not engaged in rebellion. So we're only talking about the handful of people who are not peacefully protesting. But applying those four factors, he said, that ain't a rebellion. That's right.
- [26:54]
Mary McCord
And you know, he did look back. So this particular statute that the president relied on 12406 is from 1903. So he looked back at a bunch of dictionary definitions of 1903, and he said the first definitions are always about violence and organization. Violence is required, but not enough. And the government had kind of done. You know how when you look up something in the dictionary, you sometimes have a first definition and a second and a third, and that third one is kind of like rebellion against authority. And the government cited that. And I'm not saying that as a direct quote, but basically I read it and it was like, that's kind of like when your kid like eats a cookie before dinner after you've said don't eat any cookies before dinner and they're rebelling against you. And I don't think that's what Congress meant.
- [27:39]
Andrew Weissmann
You don't? Mary?
- [27:40]
Mary McCord
I don. And so I thought, you know, he drew upon those dictionary definitions to come up with what you just said. And then as you indicated, I think this is so important. He was particularly concerned that what he said is the court is troubled by the implication inherent in defendants argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion. The US Reports, meaning the books full of all of the cases decided in the United States are chock full of language explaining importance of individuals right to speak out against the government even when doing so is uncomfortable, even when doing so is provocative, even when doing so causes inconvenience. Now, this is not to say that you could not have a protest become so pervasively violent and open and avowed uprising against the whole of government. Say, for example, what happened on January 6, 2021, that it couldn't be a rebellion against the authority of the United States. But what we're seeing in la, at least according to both the government and the state of California, is yes, there are incidents of violence, but they're sporadic and individual, not organized and large. It doesn't meet the standard. Doesn't meet the standard.
- [28:57]
Andrew Weissmann
So one thing I thought Of Mary, when I was thinking about this case, and I was thinking about your background in national security, and my background in national security is there's a very famous Supreme Court case called Keith K E I T H and it dealt with domestic violence. And one of the things that was said in that case was you have to be particularly careful about what a government does in connection with alleged sort of domestic violence and in the domestic sphere, because there are all sorts of other reasons that can creep in. And whether it's. The law enforcement operation is going to be done for political reasons. That's right. Is of real concern. And it basically said, you know, when you're operating in a foreign context, it may be more justified, but you have to be particularly wary. It's. To me, it was. This decision reminded me so much of Keith. It reminded me of what Justice Jackson said in Youngstown, our favorite concurrence. But I really thought of you in terms of the Keith decision and that sort of admonition. But Mary, what did he say about the second thing? Because rebellion and sort of the danger of rebellion, he rejects. And then he moves on to this ide, whether they meet this other standard, which is that federal law enforcement is sort of unable to do its job. Because this sort of reminded me a lot of our prior discussion about state law enforcement in Minnesota and just what a really remarkable job state law enforcement can and. And they do do every day.
- [30:31]
Mary McCord
Yes.
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Andrew Weissmann
In this country.
- [30:32]
Mary McCord
I want to go there and I'm going to answer your question, but when you just said what you said about the Keith case, it made me think of something we just have to mention. So the Keith case, so people know, was not about military being deployed or anything like that. It was about surveillance. Right. For purposes of trying to detect and prevent domestic extremist violence. But the court's kind of like, you don't get to just surveil people sort of outside the Fourth Amendment just because it's about domestic violence and raise all these concerns you just indicated about, you know, misuse of authorities for political purposes. And I will Note that on June 12, on the day that Senator Padilla was seized, trying to ask Secretary Noem a question at a press conference, she said that the operation in la, including the military, will continue until they have, quote, liberated Los Angeles from the leadership of the democratically elected governor and mayor. Is that what section 12406 is about when you're federalizing the National Guard and then also also deploying Marines, supposedly to protect federal property and federal functions against a rebellion? Sounds Very different than liberating Los Angeles from its democratically elected leadership.
- [31:54]
Andrew Weissmann
Perfect example of. Once again, we saw this in the Alien Enemies act litigation, the dualism, the dichotomy between what is being said in court by lawyers and what is being said by senior officials. Remember Judge Boasberg pointing that out, saying, I am very aware of this split and that what you are saying is inconsistent with what senior people up to and including Donald Trump. But okay, we are digressing to our big picture.
- [32:21]
Mary McCord
Let's go to this, let's go to this picture.
- [32:23]
Andrew Weissmann
Totally. I love it. I love it.
- [32:25]
Mary McCord
To your point, law enforcement out there doing their job, arresting people. And so what the court is saying that even if the defendants, meaning the US Government, is correct, that maybe they would have been able to do more ICE raids if there hadn't been any protests, that's sort of not the standard for federalizing the National Guard. And there's not any indication here that local and state law enforcement weren't, I shouldn't say it that way, that they weren't doing their jobs because they're, I don't think anybody was disputing that, even the defendants. But there's not a reason here to say that the federal government cannot execute the laws because they are still executing the laws. They are still making ICE arrests. The local law enforcement is making arrests of people who are committing acts of violence or attempting to commit acts of violence against federal law enforcement who are trying to execute federal law. So we don't have a problem where there is an inability to.
- [33:21]
Andrew Weissmann
Unable, unable, unable.
- [33:24]
Mary McCord
That's what the statute's about. You can't do it. That's just not where we're at here.
- [33:28]
Andrew Weissmann
And then finally he said, by the way, the procedural requirement that this go through the governor, well, that's like, that's sort of a no brainer. I mean, obviously it didn't go through the governor.
- [33:39]
Mary McCord
But he does make one thing clear because he says, I don't have to get to the question about whether the statute requires the consent of the governor because as a matter of procedure, you know, that statute does require the orders to be issued through the governor. And it's not enough to send an order to the adjutant general that says at the top of the memo through the governor. That's not what this could have meant. So he's like, I don't have to get to that question about consent because the US Government's big on can't possibly be consent, yada yada. And I will say the federal government, particularly now in the briefing to the Ninth Circuit is trying to Route 12406 in Insurrection act history where there is a provision that does not require the consent of the governor. That is what was used back in the civil rights era, which we talked about last week, where the governors were refusing essentially to prevent the type of violence that was occurring and standing in the way of the execution of federal law. And those are times where the Insurrection act was invoked over the objection of the governor. But that's because the Insurrection act allows that there's nothing, right? Yes. And that history doesn't map on to the history of 124 06, which was enacted many, many years 100 years later than the earliest. Insurrection act has a different pedigree and has never, let's not forget, never been used in history before by itself like this in the situation of civil unrest. You know, we talked about disturbances.
- [35:15]
Andrew Weissmann
Postal workers. Yes.
- [35:16]
Mary McCord
Postal workers is the only time when.
- [35:18]
Andrew Weissmann
Postal workers are on strike. Guess what, Mary, that's not law enforcement activity.
- [35:23]
Mary McCord
That's right. That's right.
- [35:24]
Andrew Weissmann
So, Mary, I know there's a administrative stay and that's something. There's now an argument in the Ninth Circuit that's. Yeah. So this is like. To be continued. So do you want to talk about the preliminary injunction? The PI.
- [35:38]
Mary McCord
I do. I will say to the point I just made that this briefing for the stay has been very fast over the weekend. And I read all the briefs and I'm sure you did too. And this is where I see this argument that government's trying to make, trying to root what they're doing here in this history. And that's where I think that's just not quite right. Because Insurrection act is something Congress gave to the president. And 12406 doesn't have those same types of.
- [36:03]
Andrew Weissmann
It's so funny. I read it as like a confession to me pointing out that a different statute does something differently. Only to me made it clear that this statute wasn't doing it. No, it was just like. I'm not sure that's helping you.
- [36:21]
Mary McCord
It's. It's interesting, isn't it? So now we are meanwhile. So we'll find out if the ninth Circuit, which at least temporarily stayed things administratively now they'll actually be hearing argument is should we stay Judge Breyer's order? Because we should be clear, Judge Breyer ordered that the National Guard be put back under the California Attorney General's authority. That was actually more than California had even asked for. California had asked for an injunction against engaging in domestic law enforcement act activities. And Judge Breyer went further than that. He also said, though, I'm not going to make any orders right now with respect to the Marines and whether they're violating Posse Comitatus act or even whether the federalized National Guard is violating Posse Comitatus act, because I don't have enough facts. This is last Thursday. I don't have enough facts to support that. That is really a key piece of the preliminary injunction motion. It then stayed that order of Judge Breyer. It's now going to decide, do we keep that stay in place while we handle the substantive appeal? Can we even handle the substantive appeal of a tro? Meanwhile, the preliminary injunction is proceeding, being briefed in an expedited manner this week with argument Friday. And the big issue there that's different from before is new facts that California says show that the National Guard and the Marines are engaging in domestic law enforcement. And they talk about things like going along not just sort of guarding federal property on federal property, but going off federal property, going on ICE raids. There's at least one indication of a Marine making a temporary detention of somebody, a seizure for purposes of the Fourth Amendment, let's just be clear. And then turning that person over to the Los Angeles Police Department. And what California is arguing is this being a violation of Posse Comitatus act, that should support a preliminary injunction, not just a temporary restraining order, but a preliminary injunction. Is that what is happening meets the tests that other courts have laid out for domestic law enforcement, that the use of the military is regulatory, prescriptive, and compulsory. In other words, they're doing things that people have to comply with. The military involvement pervades civilian law enforcement activities, meaning they're there kind of with civilian law enforcement, and their presence pervades that civilian law enforcement and that their involvement is direct and active. And so last week I talked about oftentimes this kind of being limited to search, seizure, arrest, detention. And that's just kind of because those are the things that are so sort of core civilian law enforcement activities. But what I just read those statements, those are what courts have said can be so pervasive that it's civilian law enforcement. So I think we're going to find out whether it's a little bit more than just the actuals, arrests and actual detention, actual search and actual seizure.
- [39:17]
Andrew Weissmann
I have a question for you. Is a way to think about this, that if the court were to accept factually that this is what's going on, that they're doing more than what the government initially said, is it one way to think about this is with respect to the National Guard, it's yet another reason that Judge Breyer's right. In other words, it's with legally, you add it to all of the things that he's already said. Plus there's now more because factually they're doing something that's impermissible with respect to the Marines. It seems to me that it's actually because obviously he hasn't ruled on that at all. But the Marines who are federalized to begin with, they're federal officers.
- [39:58]
Mary McCord
They're always they're US Armed forces. Right.
- [40:01]
Andrew Weissmann
But there's a posse common Pattis act that they could only do certain things in that role. So that could be just an independent, separate ground for finding what the Marines are doing is improper. Is that a way to think about this?
- [40:17]
Mary McCord
Well, that's right, because the use of 12406 in the presidential memorandum was solely with respect to federalizing the National Guard. The authority for having the Marines engaged in this protective mission of protecting federal function and federal property, according to the government, is just inherent presidential authority. But that inherent presidential authority doesn't mean they can do, assuming it exists at all. And that's something that, you know, hasn't really been decided. The big question then is would that inherent presidential authority extend to domestic law enforcement? Right now the government says they are not engaging in that. They're only engaging in protective functions.
- [40:58]
Andrew Weissmann
They have a factual argument, Right?
- [41:00]
Mary McCord
So that's where we have this factual argument, right? Like are they or aren't they? And what does that mean for the Marines deployment and the National Guard deployment? So much more. And by by next Tuesday, when we record, we may know what. Well, we'll know something more. We know something more than we know today. That's right.
- [41:17]
Andrew Weissmann
So, Mary, let's take a quick break and let's come back to Senator Padilla because I wanted to talk about something which is when people say whether somebody was seized and somebody was arrested, and this is going to be like, welcome, welcome to my criminal procedure class. But there was like this whole issue of like, was he arrested? Was he seized? I think even the senator says, well, I wasn't arrested. And I think he's using that in the colloquial sense. So come on back, everybody, and we're going to explain what the colloquial views are and what the law actually is.
- [41:51]
Mary McCord
Yep. Foreign.
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- [44:04]
Mary McCord
Andrew let's have a little Fourth Amendment lesson here. Okay, let me just tee this up by reading the fourth Amendment right. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue upon probable cause. The word arrest is nowhere in the fourth Amendment.
- [44:28]
Andrew Weissmann
Exactly. So the question in the fourth Amendment is, what is a seizure? Like, how do you define it? And so the courts have to define it because as you said, the Constitution says you can't have an unreasonable search and seizure. But then the courts have to decide what is a search and what is a seizure. And as the courts say with respect to a seizure, it is, would a reasonable person feel free to leave? And a classic example of a seizure, the sort of platonic ideal is when you are actually arrested and handcuffed and sort of taken off the street and booked. That is sort of the platonic ideal of a seizure because it's a full on arrest. But if you were doing like sets and subsets, you know, a seizure can be a lot more than just an arrest. Like the police can hold you, they could tell you stand where you are, you're not free to go. But as soon as you're sort of physically touched, that usually is like a big sign that the courts look at. You look at the number of people, you look at the tone of voice, you look at whether guns are drawn. In Senator Padilla's case, he is not just physically touched, he is pushed, shoved and thrown to the ground and handcuffed.
- [45:49]
Mary McCord
Yes.
- [45:49]
Andrew Weissmann
So that, just to be clear, is a seizure. And the Fourth Amendment now says lots and lots of exceptions. But the general rule that you sort of alluded to is where's the probable cause of the crime?
- [46:03]
Mary McCord
And it has to be reasonable. Right. So for a full on arrest, that means probable cause for what people know as a Terry stop. Right. A brief encounter.
- [46:11]
Andrew Weissmann
To ask wasn't a Terry stop.
- [46:13]
Mary McCord
That's a re that. Yeah. You don't throw people to the ground and handcuff them for a Terry stop. That's a brief encounter. Can I ask you for some identification? Those kind of things still requires reasonable, articulable suspicion that criminal activity may be afoot. Arrest, probable cause, that a crime's been committed. And I just want to do a little detour into the common law because you mentioned physical force. So in 2021, the Supreme Court decided a case called Torres B. Madrid. This was argued by my colleague at icap, our Supreme Court director, Kelsey Corcoran. In fact, this is when we first met, because she was not with ICAP at the time, but I mooted her on that case. She won that case. Police attempted to approach the car of a woman who was stopped in a parking lot in the early morning because they thought she might be somebody that had a rest warrant for. She was not. They did not identify themselves. She thought they were trying to carjack her. She sped away in her car. They shot her multiple times, hit her twice in the back as she is fleeing, had to abandon the car, had to be, you know, flown to the hospital. Right. Because she was shot twice. But the police did not apprehend her. In the moment. So the question then for the Supreme Court is, was that a seizure?
- [47:27]
Andrew Weissmann
Because she's still moving because she got away. And the general. The general view of an arrest was that if somebody has a show of authority and says where the police stop, in order for it to be a seizure, you have to have complied. If you just keep walking.
- [47:43]
Mary McCord
Well, that's it. Before Torres, female drug.
- [47:46]
Andrew Weissmann
Exactly. And actually even after, because that's a show of authority case.
- [47:50]
Mary McCord
If there's no touch and what.
- [47:52]
Andrew Weissmann
By the way, this is. Wait, we're.
- [47:53]
Mary McCord
We're really getting to. Yeah, yeah, you're right. So if you walk away and you've never been touched. But one of the things the Supreme Court looks back on and says at common law, it was this application of physical force to the body of a person with intent to restrain. That was an arrest, no matter whether the arrestee escaped. And here there was a physical force shooting somebody in the back.
- [48:18]
Andrew Weissmann
Right. And they said it didn't matter whether it's like a person's hand versus a projectile, like a bullet. That's right.
- [48:25]
Mary McCord
That's right. And so I bring that up to talk a little bit about what a seizure is. And also this idea that at common law, arrest was defined, I'd say more like the way we just think of a seizure today, whereas in present times, in common law, when we're talking about that, we're talking about we're going back into ancient history, even before the founding, back to England in kind of what was the law that wasn't written down in a code? That's what common law is. It's just what was known. And that's many, many cases, many, many cases through case law, not through a written code. Now, as you said, Andrew, when we think of arrest, we think of it as sort of arrest and charged with a crime as the first step toward a booking. Right, Exactly. An indictment or a criminal complaint and then a trial, etc, etc.
- [49:11]
Andrew Weissmann
Exactly. And that's why when Senator Pindi, I think, said, you know, I wasn't arrested, what he meant is, like, that is a totally understandable thing. If you're not in the criminal law, you're a criminal defense lawyer or criminal prosecutor, it's like, I wasn't arrested, I wasn't charged, I wasn't booked and taped. But you and I would say, as people who teach law at law school or do a podcast that's deep in the weeds, like we do on Main justice, is that actually not only was a seizure, which is really all you need to have this, but it was an arrest where we would say you actually needed probable cause or an exception. Now, we don't know the justifications yet. I want to make sure that we'd have to hear from ICE as to and whoever was doing this. But this is a seizure. When you throw somebody to the ground and you handcuff them, that is an arrest for the purposes of the Fourth Amendment.
- [50:07]
Mary McCord
And to be clear, this doesn't depend on whether it was a senator or not a senator.
- [50:11]
Andrew Weissmann
Not at all.
- [50:11]
Mary McCord
Right.
- [50:11]
Andrew Weissmann
Or identifying himself. There's a sort of like Christine was like saying, well, I wish he had identified himself. I'm sorry, there's no exception to the Fourth Amendment that says it doesn't apply. But by the way, I think I'm Senator Padilla.
- [50:25]
Mary McCord
I'm Senator Padilla. And like, that's pretty obvious on the tape.
- [50:29]
Andrew Weissmann
Mary, should we turn to New York? Because there were lots of things in my hometown. There was the Eugene Carroll case where what happened there was in connection with the first judgment in time that she got for about $5 million. The Second Circuit had affirmed that. But Donald Trump had asked for that to be heard by the entire Second Circuit. It and sort of obviously is a precursor to then going to the Supreme Court. Supreme Court doesn't have to take it, obviously. And the Second Circuit said, we are not going to hear this, what's called en banc. And by the way, I'm sorry to even have to explain that because everyone, of course knows that now because you've been listening to us. So you all know this, our lingo. So they said no, there were two dissents and they were both. I'm just going to say it. They were dissensed by judges who were appointed by Donald Trump. And they did seem to flag issues. I viewed it as sort of flagging issues for the Supreme Court for the cert opinion to say, look, we disagree, by the way. I'm not saying that pejoratively, like they may in very good faith think these are real issues and the Supreme Court might be interested in it. But it was very much about proof that they say that Donald Trump couldn't put into evidence going to actual malice. They didn't seem to me to be particularly interesting because I didn't think they had the factual predicate for it. Like, you know, Donald Trump didn't offer to testify to it. He didn't testify at all in this trial. And so things that would go to his state of mind, usually you have to testify to that. You can't just sort of say, I want to put it on.
- [52:13]
Mary McCord
Yeah.
- [52:14]
Andrew Weissmann
And so it seemed a little weak to me, but I, I sort of read it as these are of interest. One thing I did note was I read the briefs on this and the, the issue that was flagged in the dissent. I didn't see it in the. Donald Trump's papers.
- [52:27]
Mary McCord
Well, interesting.
- [52:29]
Andrew Weissmann
Yeah.
- [52:29]
Mary McCord
I did not read all of his papers this time, so I can't. But, you know, sometimes judges reach out and do that. And that's, I think, why you have this idea that maybe this was a signal for something that, that Donald Trump's lawyers might want to put in a cert petition. Right. And frequently when a court denies en banc, meaning, again, as you already explained, denies having the whole entire court rehear the case, when there are judges who issue dissents, that is something that the attorneys think about. When they decide whether they should try to get the Supreme Court interested in the case and petition, they will oftentimes look at those dissents and say, okay, well, we've got at least a few judges that think there's something here. You know, let's go seek higher review. Now, it remains to be seen whether Trump's attorneys will do that or not, and certainly remains to be seen whether the Supreme Court would be interested. But I think your instinct there is probably on point.
- [53:24]
Andrew Weissmann
And just to be clear, I'm not saying that pejoratively. I mean, there's no reason to think that they don't think that this is a good faith issue. I do think there are answers to it. Where this leaves us is that the $5 million judgment in terms of the Second Circuit, they're done. They have, like, they have ruled in her favor. There's no more review in the Second Circuit. So the next step would be to go to the Supreme Court, which may or may not hear it. One week from Today on the 24th, there will be the separate appeal on the second Eugene Carroll judgment. That one, if you remember, was for $83 million. And there's going to be a separate appeal there, and that's going to be heard for the first time in the Second Circuit a week from today. So that's sort of E. Jean Carroll news. But then, Mary, you listen to the effort by Donald Trump, the renewed effort, I should say the renewed, renewed effort to have his criminal case, the Manhattan criminal case, where he was convicted and sentenced on 34 felony counts. He wants to have that removed to federal court. It was denied at the district court level, but it was then argued also in the Second Circuit. What did you make of that.
- [54:43]
Mary McCord
Right. So it was an interesting argument because the judges were very active. They had a lot of questions, both for Donald Trump's lawyers and a lot of questions for the district attorney lawyers. Remember, this was a district attorney of Manhattan who prosecuted this case. And what they seemed honestly most interested in is this notion is, can you actually still seek removal of a case after the case is basically finished? And there's so much about the statute that allows removal of a case. Remember, removal. Federal officer removal is when there is a federal defense that the person who's being prosecuted says, I should have a federal court rule on my federal defense. And here we had things like immunity. Right. As a defense. And there's a few problems with that, which the court did get into in asking Mr. Trump's lawyers questions about that, which are that Donald Trump had sought removal earlier in the case, which had been denied, and that was all before the Supreme Court ruled on presidential immunity. But Donald Trump did not then come in, like the day after or the week after the Supreme Court's presidential immunity decision and say, okay, now I need to remove. Because now the Supreme Court has told me I have this defense and I need to remove this prosecution to federal court to determine my defense. He waited. He waited a long time.
- [56:09]
Andrew Weissmann
He slept on his rights.
- [56:10]
Mary McCord
He slept on his rights. And so there was a lot of this type of discussion about, is this even something right now that we can or should be deciding that the statute applies to? And what Donald Trump was arguing is that, yes, there are time restraints within the statute for when you can seek removal, but there is a good cause exception to that. That good cause exception allows us to seek it, even sort of after the case is through a trial, which, of course, was the case with the Manhattan prosecution. And so this. This question we've been talking about, sleeping on your rights kind of went to, is there good cause or is there not? So, like I said, an active bench, all three judges asking lots of questions of both sides, and so we'll see what they end up doing there. It's kind of a crazy notion, though, that you can wait till after trial and say, excuse me, this should have all been in federal court.
- [57:04]
Andrew Weissmann
Yeah. Quick note on a different topic, which was just filed yesterday, the aba, the American Bar association, has filed a lawsuit in Washington, D.C. your home turf, Mary. And they are basically saying, you know, we've had these four cases with law firms saying that these executive orders are unconstitutional. Three of the judges have actually completely agreed. One has temporarily agreed and is deciding right now whether to Permanently agree. Remember I said this thing about isn't there a way to do some sort of class action? This isn't quite a class action, but what they're saying is we represent, we're an organization, we have lots and lots of members. We want a decision that declares that all of these executive orders that could be done, like these four. So essentially, it's like looking in the future that we want a declaration that all of this is improper and null and void because they're kind of all similar. They carve out the. And describe the different provisions. And they're basically saying we have to figure out a mechanism so that none of this sort of chilling effect can go forward. So it's inventive, but it is very much based on what might happen in the future. That's usually. And by the way, not how lawsuits work. Lawsuits usually work on someone's done something injured right now.
- [58:24]
Mary McCord
Now they're saying we are injured already. Right. And I should say the APA is doing this on behalf of member law firms and lawyers. Right. And there's no question that the blacklisting and the capitulation by other law firms that didn't want to be blacklisted has had just a drove dramatic effect on law firms and law practice. Dramatically chilling effect that is still continues to permeate the field. But it will be interesting to see. I can already foreshadow, but I won't do it right here, all the arguments the government will make, including that there's just no standing here. Right. This is not something where these firms can challenge this at this point when there's been no action taken toward them. But they want, as you said, they want to declare that each provision that were in those other blacklists, orders about security clearance termination, government contract provision, the declaring federal buildings and employee access, you know, limiting their access and all of these things, they want all of those to be declared unconstitutional. So we'll be watching this closely. I'm not even sure who it's assigned to at this point.
- [59:30]
Andrew Weissmann
We don't think we know yet what judge has said.
- [59:32]
Mary McCord
Yeah. And then last thing before we say goodbye, you mentioned this right at the top, and we have not seen the transcript yet. And this ruling was based on a hearing. And so we don't have a written opinion and we don't have the transcript yet. But as you indicated, there was a very, very strong ruling by Judge William Young in Massachusetts, a jurist who's been on the bench since 1985 in a case brought by a number of states as well. As a number of organizations who receive NIH grants, that's National Institutes of Health on all kinds of research relating to the health of Americans. Right. And many of those grants had been terminated under Donald Trump's different directives to end de measures, to end, you know, anything that is about gender.
- [60:20]
Andrew Weissmann
I think it was racial minorities and LGBTQ plus were the sort of key issues.
- [60:26]
Mary McCord
Oh, that's what he used. But I'm, I'm talking about Trump's original, like executive orders and executive actions were directing federal agencies to end CI measures or anything that would support sort of gender affirming care. Anything other than we have two genders, right? Male and female. And so that resulted in the termination of a number of grants. Oh, here's the words Trump had used. Gender, ideology, extremism. That's the quote that he had used.
- [60:52]
Andrew Weissmann
Mary, can I tie this to something we had talked about with Judge Breyer? Because Judge Breyer talked about the duty of a judge and that this is something that is what the court has to do. They have a responsibility. And this is one where the reports are that Judge Young said, it is my duty to call it out. And very much in the same language. This is a judge who was appointed by Ronald Reagan. He said that he found what was going on was appalling. He said it was palpably clear. And what the record is reported is I've never seen a record where racial discrimination was so helpful. I've sat on this bench now for 40 years. I've never seen governmental racial discrimination like this.
- [61:37]
Mary McCord
He goes on to say, to your point about his obligation, I'm hesitant to draw this conclusion, but I have an unflinching obligation to draw it. That this represents racial discrimination and discrimination against America's LGBTQ community. That's what this is. I would be blind not to call it out. My duty is to call it out on that basis. He said the termination of different research grants based on racial discrimination, discrimination against the LGBTQ community, that's in violation of law, and those grants must be restored. And there is so much important research in these areas. Healthcare research has to be very dependent on the communities that are impacted by different health issues. Everybody knows that, right? Anybody with family members or friends that know that different people, different races, different genders, et cetera, are impacted differently by health issues. Some are more susceptible to certain issues and some are not.
- [62:34]
Andrew Weissmann
Can I just say on that score, I think I mentioned this before, but the largest long term health study of women was canceled by Doge, and only because of really good reporting by npr, at least I'm relating a cause and effect. Was it restored? It caused shockwaves in the medical community. But this idea of, you know, it's basically, it's like, you know, make America great again for, you know, white men. And this idea of difference not being valued. But I think a really good place to end is this idea of unflinching obligation.
- [63:09]
Mary McCord
Yes. That's what our courts are doing right now.
- [63:11]
Andrew Weissmann
And I see it in the courts. When you think about the state law enforcement in Minnesota putting their life on the line.
- [63:18]
Mary McCord
Yep.
- [63:19]
Andrew Weissmann
It was their unflinching obligation to the public. And you're seeing it in the courts and you're seeing it with people really standing up.
- [63:26]
Mary McCord
That's right.
- [63:27]
Andrew Weissmann
So, Mary, once again, I mean, this is like we're like racing through so many topics, but it's such a pleasure to talk to you about it, even when the topics are really difficult.
- [63:36]
Mary McCord
Yeah. And we do appreciate we are getting lots of questions from people and we're trying to address them as we go along and really appreciate the listeners who are writing in with their questions and their comments.
- [63:47]
Andrew Weissmann
So thank you all for listening and remember to subscribe to MSN Premium on Apple Podcasts to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content.
- [64:00]
Mary McCord
This podcast is produced by Vicki Virgolina and 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 executive producer for MSNBC Audio.
- [64:17]
Andrew Weissmann
Search for Main Justice Wherever you get your podcasts and follow the series.
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Woody Harrelson
This is Comedy Bang Bang the podcast, the promo, and in 30 seconds I'm going to tell you why you should check out the show. I, the host, Scott Aukerman, have a lighthearted conversation with famous celebrities like Jon Hamm, Alison Williams, Phoebe Bridgers, Jason Alexander, Natasha Lyonne, Bob Odenkirk, just to name a few things go a little off the rails when different eccentric characters and oddballs drop by to be interviewed as well. Each week is a blend of conversations and character work from your favorite comedians, as well as some new hilarious voices. Comedy Bang Bang the Podcast Listen every Monday wherever you get your podcasts.