Main Justice Podcast: "Usurping Power"

Date: March 10, 2026
Hosts: Andrew Weissmann & Mary McCord
Episode Theme:
This episode examines the latest legal battles and court decisions arising from the Trump administration’s expansion and exercise of executive power, focusing on Department of Justice (DOJ) reversals, constitutional concerns, immigration enforcement practices, and the ongoing tension between executive authority and institutional checks such as the Senate, state bars, and the judiciary.

Overview

Andrew and Mary analyze a series of recent, high-stakes legal developments that highlight how the Trump DOJ is pushing the boundaries of executive power. They provide insider perspective on DOJ decision-making, illuminate how courts are responding to executive overreach—especially in areas like appointments and immigration enforcement—and draw connections to broader constitutional principles.

Key Discussion Points & Insights

1. DOJ Flip-Flops on Executive Orders Blacklisting Law Firms

[02:00–13:31]

• Background: The DOJ initially moved to dismiss appeals of four district court decisions that found Trump executive orders blacklisting certain law firms unconstitutional. Within 24 hours, the DOJ reversed course and refiled to proceed with appeals.
• Insider Perspective:
  • Mary draws on her 20+ years at DOJ, explaining that decisions to appeal generally rise to the Solicitor General (John Sauer), highlighting how unusual and political this reversal was.
  • Andrew speculates this reflects chaos at the highest levels. “You do sense a sense of chaos within the White House,” (12:35).
• Legal Tactics:
  • The Solicitor General is “doing a sifting and a triage not to bring cases that... [could] potentially hurt you in other cases,” (08:33, Andrew).
  • The delay in seeking Supreme Court intervention on these orders contrasts with how fast DOJ has acted elsewhere.
• Substance of the DOJ Brief:
  • DOJ argues courts cannot interfere with presidential speech, national security decisions, or agency directives if not yet implemented.
  • Mary highlights, “Every single one of the provisions of the executive orders directed at pulling security clearances, pulling government contracts was First Amendment retaliation. That's the place where all four judges...agreed,” (16:02).
  • Judge Beryl Howell’s memorable phrase:

    “In a cringe worthy twist on the theatrical phrase, let's kill all the lawyers, the executive order takes the approach of let's kill the lawyers I don't like—sending the clear message: lawyers must stick to the party line or else.” (16:49, recounted by Mary)

• Broader Context:
  • The episode underscores a larger trend of “shoot first, ask questions later” in decision-making—both domestically and in foreign policy.

2. Minnesota Immigration Surge Ruling

[19:52–38:19]

• Case Overview:
  • The district court in Minnesota found a “policy and practice” of unconstitutional ICE and CBP stops and arrests largely based on race or ethnicity, violating Fourth Amendment and equal protection rights.
  • Plaintiffs (mostly Somali and Latino US citizens) were repeatedly stopped or arrested without reasonable suspicion or probable cause.
• Legal Standards Clarified:
  • Andrew: “Reasonable suspicion is a very low standard... but you cannot...arrest people based on reasonable suspicion. You need to have this higher standard called probable cause.” (24:45)
  • Judge highlights that race/ethnicity “alone cannot furnish reasonable suspicion,” and quotes Justice Kavanaugh’s walk back on this issue.
• Agency Policy Exposed:
  • Despite training manuals stating probable cause is required, court found that ICE/CBP leadership publicly claimed they could make arrests on reasonable suspicion, disregarding both law and their own policies (27:02–28:00).
  • “Things like that don’t matter is what one of the agents said to these U.S. citizens,” (26:24, Mary)
• Practical Impact:
  • Even with clear constitutional violations, no injunction issued due to “standing” and “irreparable injury” requirements:
    • The judge found it too speculative that the named plaintiffs would be stopped again; the “surge” had ended, reducing likelihood of repeat harm.
  • Mary’s critique: “I disagree with his standing ruling because I think it just makes it too easy for the government to avoid ever getting a final adjudication... it would only just be by luck that they were not stopped a second time.” (38:07)

3. Separation of Powers: Appointments Clause & Executive Overreach

[40:33–55:37]

a. New Jersey U.S. Attorney Appointment Maneuvers

• Backstory:
  • Trump administration tried to bypass the Senate by appointing acting U.S. Attorneys, then when required by law and courts to step down, the DOJ divided their duties among three people (“the triumvirate”) to subvert advice and consent.
• Court’s Response:
  • Judge Brand (Middle District of PA) in a 130-page decision struck this down.
  • Quote:

    “You are causing the caseload to basically come to a standstill because of your desire to not have to share power with another branch of government, which is our constitutional system.” (47:01, Andrew)

  • Founders’ design:

    “Dividing the appointment power was critical to defending against despotism...” (54:37, read by Mary from decision)

• Broader Concern:
  • Executive refusal to use lawful interim appointment mechanisms, risking ongoing prosecutions to avoid oversight.

b. Voice of America/US Agency for Global Media

• Case Details:
  • After firing all advisory board members, Trump’s DOJ tried to delegate virtually all powers to Carrie Lake without Senate confirmation.
  • Judge Royce Lamberth (Reagan appointee) declared the maneuver “an end run around the process,” (53:26, Mary), declaring all Lake’s actions null and void.
  • He invoked Alexander Hamilton to explain the Founders’ intent for requiring Senate consent.

4. DOJ Seeks to Shield Attorneys from State Bar Discipline

[55:37–59:13]

• Proposed Rule Change:
  • Attorney General Pam Bondi proposes federal DOJ attorneys should not be subject to state bar disciplinary investigations until DOJ allows it, claiming state bars are being “weaponized.”
  • Mary observes judicial skepticism:

    “This is just like we can't be bothered with you disciplinary committees doing investigations into U. S. Department of justice attorneys.” (57:47)

  • Broader context:
    Judges have rebuked DOJ attorneys, withdrawn “presumption of regularity,” and questioned credibility in court.

Notable Quotes & Memorable Moments

• Mary on DOJ’s argument in blacklisting cases:

  “Every single one of these things was done... in retaliation for those law firms exercising their First Amendment rights to represent people and policies and causes that the President disliked.” (16:02)

• Judge Howell’s summation—relayed by Mary:

  “A cringe worthy twist on the theatrical phrase, let’s kill all the lawyers ... let’s kill the lawyers I don’t like.” (16:49)

• Andrew on executive unpredictability:

  “You do sense a sense of chaos within the White House... these are the same people who are deciding our foreign policy, and we are in the middle of a war.” (12:35)

• Mary on Minnesota ruling’s significance:

  “The judge has to do here... is say... the evidence in front of me is that no matter what your training manual said, your policy and your practice was to engage in these unconstitutional stops and unconstitutional arrests.” (28:00)

• Andrew on the appointment power:

  “We never have to worry about this pesky Senate... it’s sort of ubiquitous executive power...” (45:03)

• Judge Lamberth’s warning, quoted by Andrew:

  “The Senate’s advice and consent role serves as a check on the unilateral installment of candidates who have no other merit than that of being in some way or other personally allied to the President...” (54:37)

• Mary on the DOJ’s proposed shield for attorneys:

  “...This unprecedented weaponization of the state bar complaint process risks chilling the zealous advocacy by department attorneys on behalf of the United States, its agencies and its officers." (57:47, reading DOJ rationale for the proposal)

Timestamps for Key Segments

• [02:00] – DOJ flip-flop on law firm blacklisting appeals, inside DOJ mechanics
• [09:31] – Supreme Court’s handling of Trump DOJ cases, emergency docket vs. merits
• [16:02] – Executive orders as First Amendment retaliation
• [19:52] – Minnesota ruling: constitutional violations in immigration “surge”
• [24:45] – Legal standards: reasonable suspicion vs. probable cause in arrests
• [26:24] – ICE/CBP attitude toward civil rights; judge finds clear bias
• [29:40] – Why no injunction? Discussion of legal “standing”
• [40:33] – Separation of Powers: Appointments Clause, NJ U.S. Attorney case
• [52:37] – Voice of America case and ruling by Judge Lamberth
• [55:37] – DOJ’s move to block state bar discipline for DOJ attorneys

Tone and Style

• The episode maintains a blend of legal expertise, policy critique, and sometimes wry, exasperated commentary at the current crisis in governance.
• The hosts ground their analysis in real-world DOJ and court experience, using humor (“thing one... thing two...”, [49:03]) and acerbic asides to clarify the stakes.

Conclusion

This episode lays bare the ongoing effort by the Trump administration to centralize power in the executive branch, challenge institutional checks, and evade legal accountability—both through overt policy maneuvers and subtle procedural gamesmanship. Weissmann and McCord make clear that the courts remain a vital arena for contesting such expansion, but persistent legal and practical obstacles remain.

Listener Action:
The hosts encourage anyone concerned about DOJ’s effort to shield its attorneys to weigh in during the public comment period—details in the show notes.