Main Justice - Episode Summary

Podcast: Main Justice
Hosts: Andrew Weissmann & Mary McCord
Episode: “Untethered to the Facts”
Date: October 7, 2025

Brief Overview

In this episode, Andrew Weissmann and Mary McCord—both former DOJ officials—delve into the accelerating crisis around President Trump’s federalization of National Guard troops in Oregon and Illinois, the escalation of military action against alleged drug cartels at sea, retaliatory immigration and criminal prosecutions, and how the judiciary is struggling to enforce the rule of law against executive incursions. The hosts focus on recent court decisions challenging the factual basis and legality of the administration’s actions, emphasizing the dangers of executive overreach, the misuse of military power, and retaliatory justice.

“The President’s determination was untethered to the facts… This is a nation of constitutional law, not martial law.”
— Mary McCord quoting Judge Immergut (24:47)

Key Discussion Points & Insights

1. The Supreme Court Term and Shifting Priorities

(02:37)

• The new Supreme Court term began, but the hosts set aside analysis of major cases (conversion therapy bans, tariffs, Hawaii gun restrictions, birthright citizenship).
• Focus is instead on abrupt military deployments on U.S. soil—a “main topic” due to its constitutional gravity.

2. Federalization of the Oregon National Guard

(04:49 - 26:16)

Background

• Over the weekend, President Trump federalized the Oregon National Guard after the Governor refused to deploy them voluntarily to suppress protests outside an ICE facility.
• The legal justification: invoking 10 USC § 12406, which allows federalization in cases of invasion, rebellion, or when federal law cannot be enforced by usual means.

Judicial Response

• Judge Karen Immergut, a Trump appointee, issued a Temporary Restraining Order (TRO), finding the administration’s claims grossly exaggerated and unsupported by facts.
  • “The President’s determination was untethered to the facts.” (13:25)
• Immergut found:
  • No current rebellion or violence.
  • Local and federal law enforcement were able to maintain order.
  • The administration’s depiction of “war-ravaged Portland” was contradicted by the record.
• She emphasized the necessity of the rule of law and a “foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs.” (24:47)

Notable Quotes

“This case involves the intersection of three of the most fundamental principles in our constitutional democracy… Whether we choose to follow what the Constitution mandates… goes to the heart of what it means to live under the rule of law in the United States.”
— Mary McCord, quoting Judge Immergut (15:21)

“The government’s argument… can’t possibly be the argument here, because under that theory, you can have federal forces everywhere in the country by just saying crime is occurring.”
— Andrew Weissmann (18:11)

Political Fallout & Broader Legal Context

• Hostility from administration officials and surrogates who accused Judge Immergut of “legal insurrection.”
• Immergut’s ruling aligns with prior 9th Circuit decisions, reinforcing her review authority and rejection of presidential factual claims based on “good faith.”

3. Expansion to Illinois (Chicago) and Memphis

(28:00 - 35:09)

• The pattern repeats as Trump federalizes out-of-state National Guard (e.g., Texas NG into Illinois) over the Illinois Governor’s objection.
• Lawsuits from the state and city of Chicago challenge the action, citing pretext, longstanding federal antagonism towards sanctuary states, and lack of factual basis.
• The judge in Chicago requests granular information on arrival, locations, and mission of Guard troops—signaling judicial vigilance.

“The lawsuit lays out all this targeting as part of saying… this is really just a pretext for… trying to attack Illinois.”
— Mary McCord (30:58)

4. High Seas Military Strikes: Drug Cartel Operations

(35:09 - 45:34)

• The administration has now authorized four lethal strikes on alleged drug cartel boats—without clear public explanation or evidence.
• The DOJ’s Office of Legal Counsel produced a classified memo, arguing that cartels pose an “imminent threat” and that the president can treat them as non-state armed groups (akin to foreign terrorist organizations).
• A War Powers Resolution notice has been submitted to Congress, starting a 60-day clock for legislative response but offering little substantive justification.

Hosts’ Legal Skepticism

• Both hosts strongly question the lawfulness and precedent for such actions:
  • Lethal military force against criminals is not authorized absent a true “armed conflict.”
  • Existing criminal and civil tools (i.e., Coast Guard interdiction, criminal prosecution) suffice.
  • Expanding this logic could justify deadly force domestically.

“This is imposing the death penalty by blowing these boats up and these people up with no process. Just to be clear, it’s basically saying we're going to apply as if we’re in the middle of World War II.”
— Andrew Weissmann (42:22)

5. Retaliatory Actions Against Dissent & Immigration Status

(47:59 - 59:39)

Judge William Young’s Ruling (Massachusetts)

• Concluded that recent revocation of student visas for pro-Palestinian speech was a First Amendment violation:
  • “The intent… was invidious, to target a few for speaking out and then use the full rigor of the Immigration and Nationality act in ways that had never been used before…”
    — Judge Young (paraphrased, 48:29)
• Presented overwhelming factual support for a campaign of retaliation, noting the chilling and terrorizing effect on broader activism.

Vindictive Prosecution Case: Abrego Garcia

• Judge Crenshaw (Tennessee) finds sufficient evidence that the prosecution against Abrego Garcia may have been brought to punish his successful civil lawsuit against the government for unlawful deportation.
• Grants discovery into the decision-making process—an extremely rare step due to evidence (including statements by Deputy Attorney General) directly linking the prosecution to Garcia’s civil action.

“It is remarkable to see in print the Deputy Attorney General... link specifically the criminal case to what was happening in the civil case in Maryland.”
— Andrew Weissmann (56:27)

Notable Takeaway

• The judiciary, across ideological divides and appointments, has repeatedly resisted executive overreach and attempts to punish dissent or opposition in the courtroom, applying the law rather than yielding to political pressure.

6. Conclusion: The Rule of Law Under Siege

(59:39 - End)

• The episode underscores the importance of an independent judiciary.
• Despite vilification and mounting executive attempts to circumvent or ignore court rulings, judges across the country—from Oregon to Tennessee and Massachusetts—are “holding the line” for constitutional governance.

“It is still very good news in terms of the rule of law that… judges of various stripes and persuasions and across the country… are looking at reality and saying this does not comport with the rule of law.”
— Andrew Weissmann (59:39)

Timestamps for Major Segments

• [02:37] – SCOTUS new term / shift to military deployment crisis
• [04:49] – Deployment and legal justification in Oregon
• [13:25] – Judge Immergut’s pivotal opinion (“Untethered to the facts”)
• [24:47] – Constitutional tradition vs. martial law, 10th Amendment implications
• [28:00] – Federalization efforts in Chicago and Memphis
• [35:09] – High seas military strikes and OLC memo discussion
• [42:22] – Death penalty analogy for extrajudicial killings
• [47:59] – Judge Young’s ruling on student visa retaliation
• [53:02] – Vindictive prosecution and discovery in Abrego Garcia case
• [59:39] – Closing reflections on judicial independence and civil liberties

Memorable Quotes

• “The President’s determination was untethered to the facts.” – Judge Immergut via Mary McCord (13:25)
• "This country has a long standing and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. This is a nation of constitutional law, not martial law." – Judge Immergut via Mary McCord (24:47)
• “It is remarkable to see in print the Deputy Attorney General… link specifically the criminal case to what was happening in the civil case in Maryland.” – Andrew Weissmann (56:27)
• “It is still very good news… that we are seeing judges… looking at reality and saying this does not comport with the rule of law.” – Andrew Weissmann (59:39)

Final Takeaway

The episode vividly dissects the ongoing battle between executive aggrandizement and judicial independence. It highlights the critical importance of factual rigor, good faith governance, and the constitutional bulwarks—while noting the real threats posed by normalization of martial rhetoric and retaliatory state action. The hosts' measured, fact-driven analysis provides both a warning and a measure of hope for the resilience of American institutions.