Usurping Power

Summary

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.

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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.

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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.

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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)

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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.

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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.

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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)

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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

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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.

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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.

Transcript

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[Mary McCord]

How exciting.

[Andrew Weissmann]

So anyway, guess what? I'm Andrew Weissman and that was Mary McCord. It is amazing that we're doing any chit chat.

[Mary McCord]

Yes.

[Andrew Weissmann]

We actually had an entire show planned and then a couple of decisions came out that we are going to cover and it is once again a jam packed episode of really interesting decisions and developments. So maybe, as they say, without further ado.

[Mary McCord]

Yes.

[Andrew Weissmann]

Okay, Mary, what is on our dance card? And I think by the way, people will remember last episode where we were like go on and on about a subject and then they're like, exactly.

[Mary McCord]

Hold up.

[Andrew Weissmann]

Something broke, right?

[Mary McCord]

Yes.

[Andrew Weissmann]

Okay.

[Mary McCord]

Yes. So folks will remember we closed out the episode last week by talking about the Department of Justice's decision to dismiss the appeals of all four court decisions in joining the President's executive order blacklisting those law firms. I jumped back on a few hours later to say, whoop, not so fast. Apparently they're going to file motions to withdraw those motions to dismiss. They did indeed do that. So within a span of it wasn't even 24 hours, they reversed position. Going to give you a little bit of our inside take on how these kind of decisions get made within the department and why that might have happened. And briefly talk about sort of DOJ's real attack when it did file its opening brief on Friday. But there's much more briefing to come, of course, in that case.

[Andrew Weissmann]

Yep.

[Mary McCord]

Then we'll move on to a very, very important and late breaking and long decision out of the district court in Minnesota about a topic we talk about frequently about the immigration surge in Minnesota, which is now over. And that's actually a factor in this decision. But the does find that the plaintiffs there, which are a number of people who had been stopped, some of them had been arrested by ICE and CBP agents, likely had established that the DHS engages in a policy and practice of these illegal stops and arrests. And so that's an important decision.

[Andrew Weissmann]

Yeah. Based on race and national origin.

[Mary McCord]

Exactly. Then two decisions, one that was late breaking yesterday, one that happened last week by judges, one here in dc, One in New Jersey, that are again calling out the administration for the president, really trying to get around the appointments clause of the Constitution, the Federal Vacancies Reform act passed by Congress and have people in acting or other capacities leading, in one case, a U.S. attorney's office in New Jersey, in the other case, leading the organization that has all of the Voice of America, you know, radio and broadcasting underneath it, positions that are supposed to be filled through the advice and consent of the Senate, which this president does not like to seek. He and his administration have contorted the law to allow him to have people acting in these roles for extended periods of time, making important decisions, all without doing what the separation of powers made clear is supposed to happen. Advice and consent of the Senate.

[Andrew Weissmann]

So again, a pair of decisions. It was sort of a one, two punch that we're going to discuss them together, although they're in different contexts. But it's exactly what we saw in the tariff case. It's, this is about the separation of powers and about the effort of the executive branch to usurp the, the power of the legislative branch. So we'll turn to that.

[Mary McCord]

We will close out though, on the DOJ's proposed rule to, you know, let's rid ourselves of these pesky state bar disciplinary investigations into DOJ attorneys because really we can't be bothered with having them investigated when they violate their ethical rules.

[Andrew Weissmann]

So with that, Mary, you hopped on, as you said last week, to sort of say, wait a second, it's like that old Gilder Radner skit, which is. Never mind.

[Mary McCord]

Yes, exactly.

[Andrew Weissmann]

So now the Department of Justice has filed, on Friday, they filed their brief challenging the four district court decisions. All four found the executive orders with respect to four law firms unconstitutional There were slight differences in reasoning with respect to each of those decisions. But the main issue is this idea that there was a flip flop within, you know, a New York minute, that you have them saying we're withdrawing on something this major and then never mind, we actually want to withdraw the withdrawal. And now they have filed their brief. And before we talk about the brief itself, and we're not going to go into depth on that because we're going to wait to hear from the other side and then give it more. It's due. Mary, why do you think this happened? And I understand this is speculation, but sort of educated speculation because you can't really, under normal circumstances, leave the White House aside. But under normal circumstances, this is a big deal. And in order to appeal something, you would need to go to senior level people within the department and the Solicitor General weighs in and gives you authority to appeal.

[Mary McCord]

Let's break that down because I think this is important and you're exactly right. And this is something I wrote about for msnout last week about how these decisions are made. And we'll put that piece in the show notes. But you know, it's an embarrassment on the part of doj and it really, I think, exposes exactly how political the department has become because we had on Monday evening the motion to dismiss, voluntarily to dismiss the appeals of all four cases by Tuesday, right after we recorded, we heard that the Department of Justice had reached out to the law firms and indicated it was going to file motions to withdraw the motions to dismiss. I got on to say, who knows, we'll see if they really file them. And then sure enough, a few hours later, they filed those motions to withdraw, which meant that their opening brief was due Friday, as you indicated. So how does this work inside the department, at least when I was there for more than 20 years and you were as well, and I went through this process multiple times because a good part of my career I did appellate work. A decision, particularly in a high profile case, but generally decisions to appeal adverse lower court rulings do go all the way up to the Solicitor General's office. And the other components of the Department of Justice write memos about why we should appeal this or why we shouldn't. And the Solicitor General's office, through one of the deputy Solicitor Generals, will often make the decision, no appeal or yes, appeal. Now, it could be that there's some decisions that go that way, but in my experience, every time we wanted to appeal an adverse decision against the government in a lower court, we had to go up through The Solicitor General.

[Andrew Weissmann]

Me, too.

[Mary McCord]

And I think this Solicitor General, John Sauer, he's pretty savvy. Right. He understands what's a winning case and what's not. Now, he's taken on some cases. He did just lose the tariff case, but he importantly won spectacularly for Donald Trump. He's the one who argued the immunity case. And that was a huge win for Donald Trump. And remember, that was when he was in his wearing his hat as Donald Trump's personal lawyer before Donald Trump became president again. And now he is Donald Trump's Solicitor General. So this is a person who does know how to evaluate legal arguments.

[Andrew Weissmann]

Can I add on that?

[Mary McCord]

Of course.

[Andrew Weissmann]

One of the reasons some people say the Supreme Court has a real winning streak for Donald Trump, it's not uniform winning streak, but it's. They've won so much, is in part because John Sowers, the Solicitor General, decides what to bring there.

[Mary McCord]

That's right.

[Andrew Weissmann]

Now, it doesn't mean that he's going to win there necessarily, but he's doing a sifting and a triage not to bring cases that, like the expression that I learned in Brooklyn is not to show the department or the administration's ass, meaning you don't want to go up there with something that is going to be embarrassing, that's going to potentially hurt you in other cases. That's right, because it really hurts your credibility. And so I think it's fair when other Supreme Court commentators say one of the reasons for this winning streak is because John Sauer is careful. Now, that's not the only reason, but it is part of it.

[Mary McCord]

Yes, some of it is the justices. Exactly.

[Andrew Weissmann]

Exactly.

[Mary McCord]

And as everyone knows, almost all those wins have been on emergency docket cases without full opinions and even full briefing until we got the tariff case, which of course was a loss for the government after full briefing and argument. And I think we're going to have a couple of more losses on the merits, including in the birthright citizenship case,

[Andrew Weissmann]

as my people say, alibi.

[Mary McCord]

Yeah. So I think that point about the wins on emergency dockets is also important. These cases, these four decisions. First there were preliminary injunctions and temporary restraining orders and preliminary injunctions. He did not take those up to a higher court on an emergency appeal. He did not seek a stay of those injunctions in the Supreme Court on an emergency docket case. Then very quickly after that, by May, we had four final rulings of the lower court, permanent injunctions. He did not immediately appeal. He did not seek a stay of those decisions in the circuit. He did not seek a stay of those decisions in the Supreme Court. And this is during a time period when the solicitor General's office was seeking stays of lower court injunctions in many, many cases and was getting them up

[Andrew Weissmann]

one side and down the other. This is the thing there. Justice Sotomayor quipped, we seem to be on speed dial for the solicitor General's office.

[Mary McCord]

That's right.

[Andrew Weissmann]

And so Mary's point is that these cases, from the government's perspective, were on a really slow track. In other words, they were letting everything go. Now, part of the reason for that is any day that there was no sort of definitive ruling by the Supreme Court or even a circuit court against the government, there was still this potential sort of Damocles hanging out there against other law firms, even though they had

[Mary McCord]

lost in the district court, just to be clear. But yes, it hadn't been through all the appeals. That's right.

[Andrew Weissmann]

Exactly. So they hadn't had a loss that was more definitive.

[Mary McCord]

That's right.

[Andrew Weissmann]

And that definitive loss, if it comes from the circuit and certainly the Supreme Court, could have all these ripple effects because all of the firms that have caved very publicly, other firms that have caved, but as we talked about last week, kind of quietly caved, they can start like one, they might retry and revisit their agreements.

[Mary McCord]

I think so, too.

[Andrew Weissmann]

And even if they don't, they may start feeling their oats more to say, hey, what are you going to do? Because you know what? This was just declared unconstitutional, not just by the four district courts, but now a court of appeals or the Supreme Court. So it puts in jeopardy a lot of what's happened and a lot of the sort of terrorizing effect that the administration, in my view, is seeking through the executive orders.

[Mary McCord]

Yeah. So I suspect it was John Sauer who said, let's dismiss these appeals because legally they just don't have significant merit. Now, I'm speculating a lot there, but just if past his prologue, that is what I suspect. And clearly he or someone who filed those motions to voluntarily dismiss then got overruled in the span of fewer than 24 hours. There was, of course, a lot of reporting, major headlines about the dismissal. There's been reporting that this did not make the White House happy and one particular president happy. We don't know whether he made a call to the attorney general, whether the attorney general just thought he was going to make a call. We don't know exactly what happened. But that decision was reversed. And that would not have happened except at the highest levels of the department, the attorney general, the deputy Attorney general.

[Andrew Weissmann]

Yeah. The one thing I would speculate about is that I can't imagine the Solicitor General, in a case this prominent having made the decision that these should be dismissed without the White House already weighing in. And so you do sense a sense of chaos within the White House. And all I kept on thinking about, given where we are historically, like in this past week, is, and this is the administration that has no plan for why we are attacking Iran and what exactly is our exit ramp. And you'd get the sense of we're going to shoot first, ask questions later. And the same thing with Venezuela. These are the people in charge. It's like one day you say you're going to dismiss, and a few seconds later you're like, we're not. Just remember, these are the same people who are deciding our foreign policy, and we are in the middle of a war. Whatever the administration wants to say it's a war. When you are bombing a nation state.

[Mary McCord]

And plenty of people have called it a war, like the proposed incoming secretary of the Department of Homeland Security, who has now said, it's a war. And when pressed by the press, well, if it's a war, why hasn't Congress, you know, weighed in? Well, it's a war, but we haven't weighed in.

[Andrew Weissmann]

Wait, but, Mary, I didn't say it was a war. Yeah, I didn't say it was a war.

[Mary McCord]

Or it can't be a war unless Congress has declared war. I think that's what he said, actually.

[Andrew Weissmann]

Or somehow our Department of War in air quotes is involved. But it's not a war.

[Mary McCord]

It's not a war.

[Andrew Weissmann]

Anyway, we could go on. We're going to be triggered beyond regular pun intended.

[Mary McCord]

So once the government moved to withdraw their brief was due on Friday, there was some speculation they would seek an extension of time. The law firms filed something stating in no way should they get an extension of time to file their brief. And the government came in guns blazing on Friday, which also looks really weird. You know, when they had already filed motions to dismiss, you'd think you might come in making your legal arguments, but not starting like this. Courts cannot tell the President what to say. Courts cannot tell the President what not to say. They cannot tell the President how to handle national security clearances, and they cannot interfere with presidential directives instructing agencies to investigate racial discrimination that violates civil rights laws. Nor can they interfere with presidential directives instructing agencies to review contracts or regulate government building access based on those same racial discrimination and national security Concerns, especially where these such directives have not yet been implemented. Then they accuse the district courts below, four district court judges appointed by presidents, both Republican presidents and Democratic presidents, call them bending over backwards to facially invalidate every section of the four executive orders. They say this appeal of those sweeping decisions is not about the sanctity of the American law firm. It's about lower courts encroaching on the constitutional power of the President. Now they then go on for 90 something pages trying to break down every piece of those executive orders and make arguments about how what the court did in enjoining them infringes on the President's own power over his executive branch. But what they failed to see, they failed to see the forest for the trees. And I think that's quite purposeful because if they see the forest the way all the four judges below did, there's no way that they can defend this. And that forest is. Every single one of these things was done. 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, even though you indicated sometimes there were subtle differences in their opinions and some went on to address other constitutional violations, but they all agreed these things were done in retaliation for those law firms exercising their First Amendment rights to represent people and policies and causes that the President disliked. And so it might be that in a general state of the law, the courts can't review individual assessments about whether to pull somebody's security clearance. But what a court can review is was that done purely as a matter of First Amendment retaliation. And so that's the approach they're taking. And the judges below had been very clear about how retaliatory this was. Judge Howell, you and I, I think talked about this one time before had I think a phrase that was very useful when she said 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.

[Andrew Weissmann]

So we're going to come back to this because we don't have the opposition briefs from the four law firms. We don't have an oral argument, we certainly don't have a circuit decision. So more to come on this and more of our evaluation of the government's opening brief year and what we thought of it. But should we take a break and then come back and we're going to talk about a new decision that just came out. It's the one that Mary, you talked about. That's the lengthy decision in Minnesota where the court found a policy and practice of conducting stops without reasonable suspicion, a policy and practice of conducting arrests without probable cause of removability and a policy and practice of conducting arrests without probable cause of being a flight risk. And that's a long way of saying this court found a violation of the Fourth Amendment by the government of the United States in the surge in Minnesota. So why don't we take a break and come back and we can parse out what the judge did here. Busy work weeks can leave you feeling drained. Prolon's five day fasting mimicking diet rejuvenates you at the cellular level, lets you enjoy real food and does not require

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21/.

[Mary McCord]

Welcome back. Well, as Andrew previewed, we have a significant decision out of the district court in Minneapolis. This was a case that was brought by, I believe it was three plaintiffs of either Somali descent or Latino US Citizens who had been stopped in some cases, arrested without probable cause, stopped without reasonable articulable suspicion. They brought this case on behalf of a proposed class of much bigger group of people who would also be subject to unconstitutional stops and seizures, detentions, arrests, many of them who filed declarations. I think we had a total of 23 different individual stories against some actual named Plaintiffs, because that's the way class actions work. You have to have some named plaintiffs, and then you can file declarations from other people who would be part of the class if the class is certified. And in these 23 different individual cases, individual people's experiences, each had experienced either a stop or an actual arrest, as you indicated, without reasonable articulable suspicion of them being here unlawfully. That would support a brief investigatory stop without probable cause that they were here unlawfully, which would be necessary for an actual arrest. And also necessary for an actual arrest, as you indicated, would be that because we're making arrests here without warrants, this is what the DHS agents are doing without actual probable cause that the person is likely to flee and not to be able to be found in the future. And these are some pretty compelling stories, Andrew.

[Andrew Weissmann]

I thought, absolutely. What's the kicker here is people who are listening to us could be saying, okay, I don't really know exactly how the Fourth Amendment works. I'm hearing you. There's no reasonable suspicion for a stop and there's no probable cause for the arrest. And that is true. That is what the judge here says, is that the plaintiffs have made a clear showing of that at this stage of the litigation. One of the things that is particularly egregious is that the court finds this clear showing of Fourth Amendment violations, but particularly points out, and I'm just going to read from it, the only salient factor in these cases was the individual's race or ethnicity. Officers stopped Somali and Hispanic individuals without reasonable suspicion, while they did not stop similarly situated nearby white individuals. Race or ethnicity alone cannot furnish reasonable suspicion. And the judge here does something very smart. He, as people who have followed us, know that Justice Kavanaugh has a concurring opinion in one case and he has a footnote in another case where he talks about what's necessary. In the case where he wrote a concurring opinion which came out of Los Angeles, he voices a series of factors that he thinks would be sufficient to show reasonable suspicion. In the case where he drops a footnote, he says, wait, I want to make sure people understand what I'm saying. Essentially, he's saying, you can't rely on my concurring opinion to say that you only need reasonable suspicion to do an arrest. A reasonable suspicion standard is for temporary short term stops, period. The end. And he says, it cannot be solely based on race and ethnicity.

[Mary McCord]

This is what we called his walk back. Yes, his. His walk back or his redemption. Footnote, after he was roundly criticized for his concurring opinion in the Vasquez Perdomo case in Los Angeles, which did really suggest that you could make stops based on race or ethnicity.

[Andrew Weissmann]

So one of the reasons I think that came up is because there were public statements by no less than Agent Vervino and the DHS spokesperson saying that you could make arrests based just on reasonable suspicion. And again, for people who aren't lawyers, you might not understand just how shocking that is to lawyers, because reasonable suspicion is a very low standard. And the courts have allowed just temporary stops based on that low standard. But you cannot. It's absolutely clear you cannot arrest people based on reasonable suspicion. You need to have this higher standard called probable cause. So it was shocking, was courts calling out. And the judge in Minnesota calls it out. You referenced the former Chief Judge in D.C. beryl Howell. She called it out, which is that DHS, remarkably senior leadership made a point of saying that they could make arrests based on reasonable suspicion.

[Mary McCord]

Yes.

[Andrew Weissmann]

And you know, that's beyond jaw dropping, because that's not just like, oh, a little mistake. Little mistakes can happen. That's just basic. We're violating the law. And so that's why courts have jumped all over it. And so Justice Kavanaugh has that footnote, walking it back. And this decision, the judge really points out that what is happening here, what he has found after an evidentiary hearing, is precisely what Justice Kavanaugh said you cannot do. You cannot base things based just on race or ethnicity, and that you cannot make arrests based just on reasonable suspicion. And so you have this confluence of both violations of the Fourth Amendment, but also really violations of the equal protection clause. It's not just that you didn't have the facts. It's that what you are relying on is fundamentally against what this country stands for. And the kicker here is the thing that you said, Mary, and then I'm going to stop. But the kicker here, and it shouldn't have to be, is that these were people who were in the country lawfully and had their papers. One of the vignettes is the person who is arrested is trying to say, I am a citizen and I have my papers. And their boss comes up to the car and is showing the legitimate papers to the ICE agents who just drive away and then say, oh, I didn't see it. And the judge says, I find that incredible. Of course you would see it if the boss is showing that and standing in front of your car waving those papers. And the evidence in the hearing was that ICE just didn't care.

[Mary McCord]

Yeah. And there's statements of that, right, like it doesn't matter. Things like that. That don't matter. That don't matter is what one of the agents said to of these U.S. citizens. And I think the other thing that's so important here is occasionally the judge. It's a very long opinion. He goes through the circumstances of each one of the three named plaintiffs and then the 20 other people who filed declarations. And he finds in some cases the government tries to argue that they developed some suspicion after the stop. And he's like, you can't develop some suspicion after the stop. You have to have the suspicion before the stop.

[Andrew Weissmann]

Mary, weren't you just shocked at some of the arguments that were made? I mean, it was laughable.

[Mary McCord]

And even after the stop, it never panned out for those they went ahead and made arrests of. And sometimes, and we've talked about this before, transported to some other place and then let go. Eventually, after multiple hours in the freezing cold in Minnesota, everyone will remember how unbelievably cold it was in December, January, early February, and with no means of getting back to where they came from. We've also had situation. I think at least one of the declarants here was sent to Texas, right. And then eventually let go and has to make his way back on his own dime and in his own manner. And so the judge sees through all of this. To your point about those shock at some of the things, I mean, are we beyond shock now? Like, nothing should even seem shocking. You pointed out all the things that leadership, former Secretary Kristi Noem, Greg Bovino, others said just reasonable suspicion is all you need to make an arrest, which is blatantly in violation of the Fourth Amendment. I believe they actually put this out on social media. The training in here that the judge goes through, the training says the opposite, right? The training materials that the ICE and CBP agents get while they are doing their training, which by the way, has been cut back significantly. It still says you have to have probable cause to make an arrest. So what the judge has to do here and what he does do and he say, I see what your actual training manual says and what your actual training PowerPoint slides and whatever your presentations say. But the evidence it produced in front of me, there was barely even an effort by the government to rebut that or put on evidence that countered it. 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. And that's significant, right? Because it's like you cannot hide behind whatever official documentation you may have that says the right thing when everything else in the real world, Nicole Wallace likes to say, you can't have official documentation in Earth One and then in Earth Two, ignore it all and violate people's constitutional rights and then rely on your Earth One documents. And I think it was good that he pointed all of that out. But the kicker here, we do have to tell people who are thinking, okay, great decision. Ultimately, this judge does not issue a preliminary injunction. And I think this is very important to talk about because this could be part of the government's strategy about surging and pulling back and moving on. Surging, pulling back and moving on. And this has to do with constitutional standing, what is required under Article 3 of the Constitution to bring a case in federal court.

[Andrew Weissmann]

Yeah, because most people are going, well, wait a second, you just told me that there were repeated violations that the court found of the Fourth Amendment, the stopping the arresting, that it was based on suspect classifications. How can that be? That there isn't an injunction against it? And isn't there some way to stop this? And the usual way people can stop things are money damages. Like, in other words, people are worried, like, I'm going to get sued and I'm going to have to pay up, so I should stop doing it because it's going to cost me. Or the court says, I'm actually ordering you to stop. Or it could be both. And so, Mary, what is the problem? And this, by the way, people are going to be a little bit like, it's good. I'm sure not everyone, but I'm sure a lot of people listening to this are sitting down, although some could be exercising and some could be walking their dogs and doing all sorts of things. But if you're not sitting down, you may want to sit down. Mary, why is it that here no injunction was issued by the court? Given this is like a home run from the plaintiff's perspective in terms of factual findings and legal findings on the substance of their claims.

[Mary McCord]

Yes, two things. One is he said the plaintiffs lacked standing, and he also said they did not show irreparable injury. I know your jaws are dropping. So let me, let me break this down. So standing requires that the person have an actual concrete injury. These people clearly did. But that it's not like a one time thing, that if you're seeking an injunction, if you're just seeking money damages, it could be one time you were injured, you're seeking money damages. Footnote on that very, very hard to do against federal government officials. You can sue state officials much more easily. It's very hard to get money damages for constitutional violations for reasons that are worth a whole entire episode. But that's not what was here.

[Andrew Weissmann]

Here they want an injunction.

[Mary McCord]

That's right. And when you want an injunction, you need to show that the thing you are trying to enjoin is likely to happen again. Right. And it's likely to happen again to the plaintiffs. Not to like somebody else in the world, but to you, the plaintiffs, there's

[Andrew Weissmann]

a real and concrete risk to me that it's going to happen to me.

[Mary McCord]

That's right. And so here, what the judge determined was that the three named plaintiffs, they had not been stopped a second time. Right. And now the surge has ended. The 3,000 ICE agents and CBP agents who were in Minnesota is down to a much, much smaller number, fewer than a thousand, maybe even down to around 4 or 500. And so this likelihood that it would actually happen again to one of those three named plaintiffs, he found was just too speculative. And that is consistent with some case law out of the U.S. supreme Court, particularly a case from a number of years ago that had to do with a person who had been put in a chokehold by police in California, and he was suing to enjoin the use of chokeholds. And the Supreme Court says the odds that you would be. Because he had been a driver who had been pulled over, the odds that

[Andrew Weissmann]

you would be pulled over again, that you specifically. Specifically, yeah.

[Mary McCord]

Would be pulled over again in the future, taken out of the car, put in a chokehold, are just too speculative this would ever happen to you again. Notwithstanding that, there was not really dispute about whether it had happened to him once.

[Andrew Weissmann]

But wait, so what you're saying is, so that there isn't an injunction in this case because of it's not sufficiently likely that it will happen to these people, and it's very unlikely that they could get money damages. So what prevents this?

[Mary McCord]

Well, this is what I think is tough about this decision because. And this is why I think the government's strategy may be these surges. And then just as the cases are building up, they pull out and they're not going to moot the case. Now, moot means the facts have changed such that there's no more issue to decide. But you can't just voluntarily quit doing something unconstitutional and say that moot's the case. If the court thinks that you might resume doing that unconstitutional thing, they can still hear the case, but hear what the judge is saying is there's not a likelihood this will happen again to these named plaintiffs because there's been a drawdown. Right. Of the surge. And because the plaintiffs haven't themselves shown that it did happen to them a second time. You'll recall that actually in case. Hello. Where the judge found that there was standing on behalf of the people who had been unconstitutionally stopped and detained, the Vasquez Perdomo case, that's the case where Justice Kavanaugh, in a concurring opinion on an emergency docket motion, had suggested those stops were lawful. But that didn't end that case because that case is able to proceed. And the judge there has now found that no, in fact, these were unconstitutional stops. More to come on that that judge had found standing because at least one or maybe two of those plaintiffs had already been stopped again at the time the surge was still going on. Right. And people were getting stopped every day.

[Andrew Weissmann]

And DHS position was, nothing you do is going to stop us from doing this.

[Mary McCord]

That's right.

[Andrew Weissmann]

So when DHS says that and people get repeatedly stopped, the courts can put those together and say, oh, okay, I have repeated stops and I have DHS saying, we don't really care what you do because we're going to do it anyway.

[Mary McCord]

And add to that the policy is the judge says when there's a policy, the judge in Minnesota, it is then more likely that this will happen again. And of course, he found that there was a policy here. And so I do think a lot of his decision did come down to. And he does say this when he discusses the lack of irreparable injury came down to the surge ending. I mean, he says that when he talks about a reparable injury. So imagine this. The government goes into city after city surges, ICE and CBP makes all kinds of unconstitutional stops and detentions. Just when the cases start coming in with preliminary injunctions or get full briefing, we're pulling out. We're going to go someplace else. If this kind of thing is enough to defeat standing and irreparable injury, then they can just do this from city to city to city.

[Andrew Weissmann]

And this is why, just for people listening to this, this is why for Mary and me and I actually, when I was a defense lawyer, was litigating this issue to try and get damages for somebody who was suing for excessive force. But it's really hard. But the purpose of being able to get damages is that you need to have something that is a consequence to the executive branch. And so this, in some ways is going to fit in so much with everything we've been talking about in terms of executive power and executives feeling like, okay, we shouldn't be beholden to Congress, we shouldn't be beholden to state bar associations. Well, the law is already very stacked in favor of the government here because it is so hard to get injunctive relief and so hard to get damages when you're suing the federal government.

[Mary McCord]

So I think one of the reasons, and actually he says this, the judge says this, one of the reasons why he issued such a long opinion making findings of fact and conclusions of law, even though ultimately he denies the preliminary injunction, is he said he was doing this for purposes of appeal and to make this record. So we will see if the plaintiffs here appeal on this question of standing. The 8th Circuit is really stingy on standing, to put it mildly. And it's a very, very tough circuit, just generally good word for it. That's right. And so we'll see if there is an appeal here. And also I would say if any of these plaintiffs were to decide subsequently to try to bring a damages case for this, again, very difficult to do, but they would be able to actually point to some of the findings of fact made by the judge here about these constitutional violations, which would be significant in any case like that. So I think it was good that he did this long opinion. I disagree with his standing ruling because I think it's just makes it too easy for the government to avoid ever getting a final adjudication. And I think the likelihood in certainly in Minnesota that these three plaintiffs didn't get stopped a second time. I mean, there were people being so many, many, many hundreds. Right. Maybe even thousands of people. I think certainly thousands of people being stopped in Minnesota during the course of the surge that it would only just be by luck that they were not stopped a second time. So we will continue to follow this as well as other cases where we have seen courts find that there was standing, and some of those are proceeding now to appeal.

[Andrew Weissmann]

With that, let's turn to, after the break, a pair of decisions that deal with the Appointments Clause, which may sound very technical, but it really gets at the big picture of the executive branch saying, we don't need no stinking legislative authority here. We're going to do what we want. And a real tussle between the executive branch and times, particularly the DOJ and the courts standing up for the power of Congress. Very, very reminiscent of the tariff decision where the majority six to three, did the same thing. So let's take a break and Come back and talk about those decisions.

[Mary McCord]

That sounds good.

[Andrew Weissmann]

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[Mary McCord]

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[Andrew Weissmann]

gift when you [e-mail] PandoraPromo welcome back. So Mary and I are going to give sort of a brief overview of the two decisions we made. Want to talk about? So the first one is out of New Jersey. People will remember that Donald Trump in New Jersey and elsewhere had been appointing U.S. attorneys. I think it's actually in five districts, not just in New Jersey, but in four others. And the Constitution requires to have an official U.S. attorney that you have someone who's nominated and then they are confirmed by the Senate. But the question is for Congress was sort of what happens when that sort of logical progression doesn't proceed? What do you do if the person after a certain amount of time doesn't have their hearing for a variety of reasons? And so Congress is given the power to make sort of interim appointments. There's lots and lots of details to that. But if people remember, Alina Haba was found to be impermissibly sort of holding over because the congressional statute had said no, her time was up and now it was time for Congress to choose the sort of temporary person until such time as there is an official nominee who is confirmed by the Senate. And the whole idea of that is that the president gets to nominate. But in order for the person to actually be official and do the work, the Senate has to confirm that is the balance. And that, by the way, is in the Constitution. So the idea of that is, and I think it's Alexander Hamilton said, the whole point of that is that you don't want people nominated who are just going to be lackeys to the president. Sound familiar?

[Mary McCord]

Or not nominated. Right. You don't want people holding those positions who are just being lackeys. You want them to have to be nominated and get approved and confirmed by the Senate.

[Andrew Weissmann]

Exactly. So here Alina Haba ultimately steps down,

[Mary McCord]

which was after the Third Circuit. Right. Affirmed the district courts, saying she's not occupying this position lawfully.

[Andrew Weissmann]

Yep. And the same thing happened with Lindsey Halligan. It basically took the courts sort of extracting them out of the position. But what did the Department of Justice do? So the Department of Justice, as soon as the judges appoint somebody, Todd Blanch has put out on social media and you're fired literally within hours. He's just like, you can nominate and the judges you can select, even though that's what Congress said, but the Department of Justice is going to remove them immediately. I kid you not. That's what he's doing. No. Cause he just says the President has the ultimate power done.

[Mary McCord]

And says it really kind of in a nasty way.

[Andrew Weissmann]

Yes, exactly. And it's also hardly. It was not befitting somebody who is the deputy Attorney General. It was not a legal brief. The judge in the case decided in the New Jersey matter actually made a point of saying it's a little odd because if he's really saying that the statute is unconstitutional, he points out that there are actually Trump people who are sitting right now pursuant to the statute that Todd Blanche seems to be saying is unconstitutional.

[Mary McCord]

Yeah.

[Andrew Weissmann]

Leave that aside. Essentially, in New Jersey, what happened when Alina Habba stepped down? You have the Attorney General created sort of a triumvirate of three people. And she said, okay, they're just going to act as U.S. attorney and I'm just going to designate them. So we never have to worry about the Senate doing anything because we are just going to, as the Department of Justice, just pick three people and they're going to run the office and we never have to worry about this pesky Senate.

[Mary McCord]

The theory there, just real quick, is like, I'll give one of them certain of the responsibilities of a U.S. attorney. I'll give the second certain other responsibilities of the U.S. attorney. I'll give the third the remaining responsibilities of the U.S. attorney. So we have this what the judge called a triumvirate. Right. And the government's argument is this can't possibly violate the Federal Vacancies Reform act because Pam Bonney is the Attorney General can delegate various authorities to these people. And that means. Right. They could just for the entire rest of President Trump's term, run the office without anyone ever getting nominated and confirmed

[Andrew Weissmann]

by the Senate and then apply that to any other position. In other words, why stop here?

[Mary McCord]

Exactly.

[Andrew Weissmann]

It's basically saying the executive is saying, we don't have to worry about this at all because we can just get around it because we'll just appoint people. And whether we divide up the responsibility or we just have this running in some sort of acting way or lower level officials, we never, ever, ever have to go to Congress because it's sort of ubiquitous executive power. So running straight at what Justice Gorsuch said in his concurrence in the tariff case, which is he ends with that pay into legislative power, channeling, as I like to say, his inner justice, Robert Jackson. And guess what? The court finds, and this is the judge who's been tasked to hear all such matters with respect to the appointment of the U.S. attorney and any challenges to who is running that office.

[Mary McCord]

In New Jersey.

[Andrew Weissmann]

Yep, in New Jersey. And the judge finds in a lengthy, lengthy decision. I think it's 130 pages. I hear that voice. Some of us woke up very, very early this morning to make sure we could read all of it. So you don't have to.

[Mary McCord]

Yes. These late breaking decisions.

[Andrew Weissmann]

We're about to turn to you because there's a nice Royce Lamberth decision.

[Mary McCord]

17 pages.

[Andrew Weissmann]

So this is Matthew Brand. He is the chief United States District Judge for the middle district of Pennsylvania. He was selected by the chief judge in New Jersey to hear such matters because he is outside of the district. And so it wouldn't have an appearance of impropriety. And so he decided after 130 pages, no way does not work. And strikes it down. There are issues about whether there would be sufficient prejudice to particular defendants. Right.

[Mary McCord]

Criminal defendants. Right.

[Andrew Weissmann]

But one of the things that he points out is he really. And this is where this is maybe for people who are listening this, who are non lawyers and even ones who are lawyers, he says, what on God's green earth are you doing? You understand that you are jeopardizing criminal cases. You are jeopardizing the functioning of the court system. All of these criminal cases have been put on hold and people are not getting prosecuted because of your shenanigans. And there are numerous legal ways for this to work, and you have not chosen those. In other words, you are putting the safety of people in New Jersey and elsewhere at risk because 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. And they're having real consequences in terms of criminal law enforcement. So he really is writing for the big picture audience to say, what are you doing? And he's saying, don't pretend that there isn't a way to solve this, because Congress has given you all sorts of ways legally to go forward. And Mary, you and I know that every other president has done that has been able to do this. The reason this is so unusual is that every Republican Democratic president follows the law on this. And you don't have this standstill. You don't have this problem that has been created by this administration where they simply do not want to share power, which is core to our Constitution.

[Mary McCord]

And just before we move on to Judge Lambert's decision in the Carrie Lake case, I call it the Voice of America case, because then people will understand what we're talking about. You mentioned there are lawful ways to do this thing. One, go ahead and nominate somebody and have them go in front of the Senate.

[Andrew Weissmann]

I love it when you say thing one.

[Mary McCord]

Thing. Two, the Federal Vacancies Reform act provides three ways for vacancies to be filled on a temporary basis. One is the person acting as the first assistant at the time of the vacancy could be in the acting role, but Alina Haba was not the first Assistant at the time the vacancy arose. Another is the president can appoint someone who has already gotten the advice and consent of the Senate in any other position doesn't even have to be in that office. That person who has been at least approved by the Senate once and confirmed can serve in an acting role. And another is someone within the agency who's been there for a substantial period of time could be elevated into the acting role. But here, this administration didn't want to do any of those things. And I think that's a big part of that decision in New Jersey is like you cobbled together this triumvirate to basically avoid all of these other options, because I guess, you know, those options were not the ones seen as palatable by this president because appointing somebody from within the agency, maybe he was worried that person wouldn't do the things that he wanted that person to do. Maybe that person wouldn't pursue political prosecutions. Right. Appointing Someone else that, you know, didn't work for him. So he's an end run around it. And that's exactly what Judge Lamberth finds, basically, an end run around the. The appointments clause that requires nomination by the President and confirmation by the Senate of principal officers. Here it is, the head of the U.S. agency for Global Media, which is the body that operates all of the Voice of America efforts across the globe. And I will just footnote here. We are in a war with Iran right now, and there are people who have spent careers at Voice of America who are directing their broadcasting to other countries, and they operate in those other countries, including directing broadcasting to the people of Iran, who have not been able to continue with their work because of the President's executive orders and Carrie Lake executing on those orders to really decimate the Voice of America. That has substantial implications for our international relations and what we have been trying to do as a country when it comes to speaking. And these are not spying type of COVID influence activity. These are open broadcasts right by Voice of America so that people around the globe can sort of like, hear what Americans and our media are saying about things happening globally. Okay, so that's my aside. So what happens there? Immediately, the President fires all the advisory board members of this United States Agency for Global Media. And in a way, I'm going to say, to get around everything, we've just been talking about the appointments clause. He or someone puts into the acting position a person who could be in that acting position.

[Andrew Weissmann]

Right.

[Mary McCord]

So there. Okay, it's looking like, okay, you're following some law. This is a lawful making of somebody in acting. At least that's what it appears to me. The person who was made CEO of the US Agency for Global Media, his name was Victor Morales. What does he immediately do? He issues a delegation order giving Carrie Lake, who has not gone before the Senate, who has not been confirmed, giving her 95% of the powers of the CEO of the US Agency for Global Media. Kind of like giving this triumvirate in New Jersey all the powers of the U.S. attorney.

[Andrew Weissmann]

And to Carrie Lake's credit, I will say there was discovery in this case and she was deposed. And she testified that she did have that power. She wasn't trying to say, oh, I. I'm not really the head of it, and I don't really share that. She was like, yes, that's right. I am running it.

[Mary McCord]

And for very similar reasons as the judge in New Jersey, Judge Lamberth, I will say a Ronald Reagan appointee, well over 40 years of experience, very Very seasoned judge, terrific judge, said, no, you can't just do this end run around the process that both the Constitution and Congress has set out fulfilling these vacancies. And what's really significant here is he then says that anything done under Carrie Lake's direction while she was unlawfully in this position, including the reductions in force.

[Andrew Weissmann]

Right.

[Mary McCord]

The drawdowns of all of Voice of America's work, all of that is null and void.

[Andrew Weissmann]

Null and void. And not only that, but he cites this statute and says it's null and void and it cannot be retroactively. You can't go back in time and say, I'm going to resuscitate it. It's done. And so here, unlike what we talked about in Minnesota, his decision is this is null and void and cannot be resuscitated. So major, major decision he cites, just to put this in context, of why you should care, he cites Alexander Hamilton in Federalist 76. And he says 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 or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

[Mary McCord]

And, you know, we kind of skipped over those Founders. Those Founders, yeah. I mean, I got some issues with those Founders, but that's great language from Judge Lamberth. And also the first, what, three pages of the New Jersey decision just go on and on and on about the design of the Founders and the principles of separation of powers. And says to the Founders, dividing the appointment power was critical to defending against despotism. Their experience with the English monarchy had taught them about the abuses that accompanied the king's ability to wield significant power to both create and fill offices as he saw fit. This division of power means the President may not always be able to appoint his first choice to a specific office, and he may sometimes have to wait for the Senate to act, which can take time. But that is the point of this Divided authority, not a defect. So these judges were making powerful statements, and they clearly want these decisions to resonate beyond these specific cases. And there will be much more to come on this.

[Andrew Weissmann]

So we're going to put in our show notes something that Mary talked about, and just to give you a quick overview, it is that Pam Bondi has proposed a change in rulemaking. As we talked about, lawyers, including lawyers at the Department of Justice, are licensed by states, and people can file complaints against Lawyers and those state bar associations, under various rules, adjudicate them and there's due process, et cetera.

[Mary McCord]

And sometimes you can lose your bar license.

[Andrew Weissmann]

Right.

[Mary McCord]

We've seen that happen to, like, Rudy Giuliani and others.

[Andrew Weissmann]

And it's a way of checking bad conduct. And just to be clear, it doesn't always end up that that's the end result. You can get a slap on the wrist, you can get the case. It can actually just be found to be a bogus complaint and there's nothing there. But there is that process. And remember, this is a profession. Well, what is Pam Bondi saying? She is saying that the department of justice, when it's a DOJ attorney, either current or former, that DOJ essentially can put those complaints, those state complaints, on hold while DOJ first looks into it. Well, the problem with that is that DOJ then controls the keys to the kingdom because they may not decide it for years and it may never devolve to the state. And also, why should DOJ have that ability to put a state on hold? And the claim is that, oh, we need to do this because of the weaponization of state bar associations. So we're going to put this in our show notes because you'll see that there's a comment period. The reason it's a rule change is that means that the public bar associations, lawyers, non lawyers, can weigh in on it. So this is something. Mary's going to talk a little bit more about it, but you can read about it in our show notes. And if it is something that you are interested in, you, like anybody else, can weigh in on what you think about the propriety of it.

[Mary McCord]

That's right. And you need to do so quickly, though, because the government argues this doesn't even have to go through these formal procedures. But, oh, in their graciousness, they're giving the public 30 days.

[Andrew Weissmann]

It's so nice of them, Mary.

[Mary McCord]

Yes, it is. Right. Because they so care what the public public thinks. But the rationale for this, because this really is just like we can't be bothered with you disciplinary committees doing investigations into U. S. Department of justice attorneys. And here's why. This is a quote. 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. That chilling effect, in turn would interfere with the broad statutory authority of the attorney general to manage and supervise department attorneys. Now, put this in the context of things that Andrew and I have been discussing for months and months and months now about judges telling attorneys in their court you made a factual misrepresentation in an earlier hearing. Do you want to walk that back now? And attorneys saying, I need to walk that back. Put it in the context of judges saying, you've lost the presumption of regularity. Department of Justice I'm not going to give you that because there's been nothing regular about this case or the way it's been litigated. Put this in the context of judges saying, I don't trust the credibility of the witnesses the Department of Justice has relied on in a case in front of me. And now we're saying the Attorney General's saying, if state bars start to review some of this conduct, that's going to chill this zealous advocacy that multiple judges have said is a little too zealous and a little not grounded in actual law or even in the facts of the cases.

[Andrew Weissmann]

So more on all of that. Thank you all for listening. Remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other MSNow Originals ad free. You'll also get subscriber only bonus content like the one that Mary and I just did on Fulton county and other issues that we are keeping an eye out in connection with the midterm relationship elections.

[Mary McCord]

This podcast is produced by Vicki Virgolina and Donnie Holloway. Our associate producer is Rana Shabazzi and Colette Holcomb is our intern. Greg Devins II and Hazik Bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.

[Andrew Weissmann]

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