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Main Justice
We Are Here
00:47:58
Norms are challenged across the board: from DOJ firings and demotions to stripping security clearances and removing top military lawyers who might question military actions.
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- [00:01]
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- [01:12]
Andrew Weissmann
Welcome to Main Justice. It is Tuesday morning, March 4th. I'm Andrew Weissman and I'm here with my co host Mary McCord. Hi Mary.
- [01:22]
Mary McCord
Good morning, Andrew.
- [01:24]
Andrew Weissmann
March 4th. I remember being on air with Chris Hayes and he goes, March 4th. It's also a command.
- [01:31]
Mary McCord
Well, okay, what are we commanded to do exactly?
- [01:34]
Andrew Weissmann
I'm like, okay. But anyway, so this is one where just like last week and the week before and I have a feeling it's going to be true for a long time. We're going to just go right into this because there's so much to cover that we really spent some time thinking about what's going on without thinking about it in terms of like this and this and this and this. But like stepping back and what's a way to organize in our heads what's going on, but also to think about what the administration is doing because if you just look at it, there's so much coming in.
- [02:09]
Mary McCord
What is the unifying theme? Right. What is the end goal?
- [02:13]
Andrew Weissmann
Okay, so I think I am burying the lead. Yes, you are buried.
- [02:16]
Mary McCord
Yes.
- [02:17]
Andrew Weissmann
What are we doing?
- [02:18]
Mary McCord
Yes. So this is about a full assault on the lawyers. What does that mean for the rule of law? We were talking about the famous quote from Shakespeare's Henry vi, which is the first thing we do, let's kill all the lawyers. And that was said by Dick the Butcher, a villainous character who was really the right hand man of the person who was leading a rebellion against the king. And to do so, they needed to get rid of any roadblocks that would stand between this new leader and the population. And that's where the first thing we do, let's kill all the lawyers, comes from. So what on earth does that have to do with what we're talking about today? I think that it fits really nicely, nicely as a, not really the right word to use was something I heard last night when I was trying to get some sort of diversity of viewpoints on cable news and I turned on Fox News. And who was on there? None other than our Attorney General, Pam Bondi.
- [03:16]
Pam Bondi
There are a lot of people in the FBI and also in the Department of Justice who despise Donald Trump, despise us, don't want to be there. We will find them because you have to believe in transparency. You have to believe in honesty. You have to do the right thing. And right now, we're going to root them out. We will find them, and they will no longer be employed.
- [03:38]
Mary McCord
And she repeated this type of phrasing multiple times, said Cash, meaning Kash Patel, the FBI director and I talk about this all the time. We knew it was bad, but we didn't know how bad. And then she said that now we are hiring good lawyers.
- [03:54]
Andrew Weissmann
Well, I like how good lawyers and who you support politically. So I guess if you didn't support Trump, you're not a good lawyer. I mean, so that, that's just not synonymous. But also, I don't know where to begin, because at the department, as you and I know, pre Trump, I had no idea whether people were Republicans or Democrats or who they voted for. But the idea that it's like, oh, you should root them out, as if that just goes to the idea that there are no principles and everything's transactional.
- [04:26]
Mary McCord
Yes. And the equation of hating somebody with lawyers who were doing their job when they were investigating and prosecuting crimes, that's also, you know, really a leap. At any rate, this is our theme for today, and we're going to talk about the various ways that has presented itself, including, you know, firings and demotions at the Department of Justice, stripping security clearance of Jack Smith's lawyers and really threatening the law firm that is representing him, firing top military lawyers, in other words, those who might question actions of the Defense Department, the Secretary of Defense, Donald Trump. And we'll see what else we can fit in. I've got a long Long list. But I don't want to over promise.
- [05:08]
Andrew Weissmann
Yeah.
- [05:08]
Mary McCord
Oh, my goodness.
- [05:09]
Andrew Weissmann
We have some issues at the end that we're going to just flag for people. I wanted to make a quick point and then let's dive right in, which is we are focusing on lawyers today. But I want to make sure people understand that the people who are adhering to principles, who are resigning rather than complying with orders that they think are improper or unethical or illegal or some combination thereof, are not just lawyers. The point of. Mary, your quote at the beginning is to make sure people understand how important this is. And I want to make sure people know that, especially today, that the day after the head of the New York FBI field office, the largest field office at the FBI, resigned under pressure. We're going to talk about that, but I just want to make sure that we're not being blind or myopic to the fact that there are lots and lots of people who are not lawyers who act out of principle and have been pushing back on what they view as improper conduct.
- [06:10]
Mary McCord
That's right. And in fact, there have been more federal employees just for fired or laid off across the government than there have been at the Department of Justice. And I think what's so. It's all insidious, but what's so insidious about this is the way we're seeing this manifest itself at the Department of Justice that seems very much calculated to remove any lawyers who might be in the way of what the President wants to accomplish and what his Department of Justice under him is. Is seeking to accomplish.
- [06:38]
Andrew Weissmann
Mary, could we start with. To me, there's sort of two big things that I sort of really think about, and one has to do with the attack on Jack Smith's council.
- [06:48]
Mary McCord
Right.
- [06:48]
Andrew Weissmann
But I thought the place to start that I think is the most dangerous is the fact that the three top military lawyers who are the military judges, the JAGs, were removed.
- [07:03]
Mary McCord
Yes.
- [07:04]
Andrew Weissmann
And not for cause.
- [07:05]
Mary McCord
No.
- [07:05]
Andrew Weissmann
They were just flat out removed. And this is the question that I have, and I'm dying to hear a benign reason for this, but here's the question. Can anyone tell me what the reason to do this is that would be legitimate? I cannot think of a reason you would do this other than not wanting to have the rule of law apply when there are questionable orders given to the military. And Pete Hegseth actually said something like that after the removal. He. He said that we want to make sure that they're not going to stand in the way.
- [07:44]
Mary McCord
Roadblocks, I think, might have been the term he used, no roadblocks.
- [07:48]
Andrew Weissmann
Ultimately, we want lawyers who give sound.
- [07:52]
Mary McCord
Constitutional advice and don't exist to attempt.
- [07:55]
Andrew Weissmann
To be roadblocks to anything, anything that happens and their spots.
- [08:00]
Mary McCord
What we know about these T jags.
- [08:01]
Andrew Weissmann
Are called T jags inside the military. And so I understand saying there shouldn't be roadblocks on policy differences. Of course, elections have consequences. If you don't like a particular policy, you do have a choice, you can leave. You don't have to be there and implement it. It's not indentured servitude. But I cannot think of a reason to remove the top three people. Remember, it is not merit based.
- [08:27]
Mary McCord
That's right.
- [08:27]
Andrew Weissmann
That's the. There's been no claim that these people were removed all three because of something they did.
- [08:34]
Mary McCord
That's right. So, yes, and just so people understand who don't have military backgrounds or family in the military, this is the top military lawyers at the army, the Navy and the Air Force. Their title is Judge Advocate General. That is known as jag as Andrew, you referred to them earlier, and that's who lawyers who are serving in a legal role within the military. That's what their titles are. These were the highest ones in each of those military departments. They are uniformed generals, three star generals, I believe. And like you said, none of the three had been accused of any wrongdoing, any malfeasance, any abuse of their authority or anything like that. And the reason that the JAG Corps exists is, is multifaceted. You know, at the lower levels, they actually are the ones who serve as the prosecutors and the defense attorneys for service members who are accused of crimes. Right. And they have to do both. They'll spend some time as prosecutor, they'll spend some time as defense attorneys. But as they rise up the ranks, they are the chief legal advisors to the most senior military officers. So we're talking the Joint Chiefs of Staff and the Secretary of the army and the Navy and the Air Force, the most senior legal advisors to ensure that the military does not run afoul of US Law or the laws of armed conflict. And so what is concerning here, as you flagged, is that we certainly do know that in the past, before becoming the Secretary of Defense, Pete Hegseth has said some things. He has really castigated military lawyers for being overly restrictive on the rules of engagement for the frontline troops. He has sometimes taken positions very much in support of troops who have clearly run afoul of the law. And so that's, I think that combination of the things that he has said in the past. And the removal of these top military lawyers is what I think has caused a lot of people who watch military, civilian engagement, watch military movements overseas, and particularly in times of conflict where they're sent in. This is something that's very concerning.
- [10:48]
Andrew Weissmann
Can I just point out, and this is maybe going to be a good segue to the attack on Jack Smith's counsel at Covington and Burling. And I'm calling them out by name because they deserve the credit for standing up for the rule of law. Both of us for many, many, many years served in the Department of Justice as prosecutors, but we have enormous respect for defense counsel. It's a noble, noble thing. And there are people who are just incredibly eminent and do that work. And it's worth pointing out that law firms are stepping up, but they're being attacked. And the American Bar association that usually is so squeamish in terms of they want to stay out of the political fray. They are very careful about the fights they take on. They issued a statement a couple of weeks ago about the rule of law, but they just issued another one that I think is particularly relevant. And they talked about the rules that should guide every lawyer that have guided our country, they said, for over 200 years. And this is a, quote, defending judges and courts, acknowledging the role of the courts adhering to the rule of law and respecting the separation of powers. They talk about these being bedrock principles, but one of them, they said, is that it's unfortunate that what they're seeing is government actions that evidence a clear and disconcerting pattern. This is a, quote, if a court issues a decision this administration does not agree with, the judge is targeted. If a lawyer represents parties in a dispute with the administration, or if a lawyer represents parties the administration does not like, lawyers are targeted. High ranking government officials appointed and elected have made repeated calls for the impeachment of judges who issue opinions with which the government does not agree. There have been calls to impeach corrupt judges with no effort to produce evidence of the so called corruption. These have been directed only at judges who have ruled against the government position. And it goes on and on. And you can read that statement and we'll have a link to it so you can read the full statement. It is a sign of the complete disrespect for essentially, again, the principles of our country. And Mary, I'm so glad you brought up the conversation with Pam Bondi that you heard last night because it's of a piece.
- [13:25]
Mary McCord
That's right.
- [13:25]
Andrew Weissmann
And to me in my mind, it's not understanding the principles of our country. And it's, you learn in high school about the First Amendment, you learn about principles that you learn about humanism, which is a bedrock of our country, that if you don't respect differences, you're lost. Especially, by the way, this is an administration that says they're all about the First Amendment. This Elon Musk thing, this is the Missouri case that we talked about last year.
- [13:55]
Mary McCord
This is what JD Vance talked about when he spoke at the Munich Security Conference just before the CPAC conference this year. Right. Talking about the First Amendment and criticizing European countries for squelching speech. Right. But apparently that seems to work. Just really one direction.
- [14:12]
Andrew Weissmann
Yeah, it's. I respect speech. So long as you're saying something I agree with. That's not the First Amendment.
- [14:19]
Mary McCord
So what are we talking about here? We're talking about, as you've alluded to Donald Trump's announcement someday in this last week since we recorded, and I no longer remember what days, different things happen, that he was stripping the security clearances or ordering the stripping of security clearance of any of Jack Smith's lawyers at Covington and Burling, I think he said, pending some sort of review, but taking away those security clearance and also ordering that any federal government contracts with the law firm would be reviewed or terminated. And I don't think that, I mean, at least based on news reporting, it appears that there may not be any such government contracts. But certainly lawyers, and I should say also this came after Jack Smith in his financial disclosure forms, the last one, I think, that he had to file before, you know, leaving his position as a special counsel. He noted in there, I think, $140,000 worth of pro bono legal services that had been provided by attorneys at Covington and Burling to him personally, didn't get into the details. And so that's what has apparently prompted the stripping of security clearances in order to withdraw any government contracts with the law firm. And really, I mean, we can talk about how the stripping security clearances could be significant, because if there's any type of investigation or retribution against Jack Smith with respect to the Mar A Lago case in particular, that's a case where, of course, classified information is at the heart of that case, and his lawyers, to defend anything there, would need clearances, just like Donald Trump's lawyers needed clearances when he was facing prosecution there. But I think in some ways, even more significant than that is the message that was sent. And that's what you were getting at.
- [16:07]
Andrew Weissmann
Of course, of course. Because even if Covington doesn't have any government contracts, I mean, the message to any law firm is you will be singled out, you'll be targeted if you do have work that is government contract related that could be jeopardized. And corporations, they're hearing that too. Clients are hearing it, and they're going to be thinking about what lawyers they want to represent. And so this is something that we saw a little bit of right after 9 11, where law firms were representing people in Guantanamo. But very quickly, the law firms pushed back and very much had a sort of NATO alliance on this, which was in for a penny, in for a pound. We all stand together. Rising tide raises all boats, whatever the.
- [16:53]
Mary McCord
Right, right.
- [16:55]
Andrew Weissmann
Have I gone through enough hackers expressions? Can we have this?
- [16:57]
Mary McCord
Exactly. Let's have a few more.
- [16:58]
Andrew Weissmann
Okay, so why don't we take a break? Because when we come back, I know you had your erudite moment of going back to Shakespeare. I'm not going to go back quite that far, but I'm going to, I'm going to try and match your erudition when we come back. How's that for some good? I'm sure people that. Boy, is that a cliffhanger we're supposed to have.
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- [17:18]
Andrew Weissmann
I'm sure people are like, I can't wait to be lectured by Weissman.
- [17:23]
Mary McCord
Yep. Hey, I don't know if it's going to be erudite levity or just erudite. So I guess we'll see.
- [17:29]
Andrew Weissmann
Oh, that's a good cliffhanger.
- [17:30]
Mary McCord
Okay.
- [17:31]
Andrew Weissmann
Okay.
- [17:39]
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- [19:36]
Mary McCord
Okay, tell us your story, your erudite.
- [19:39]
Andrew Weissmann
Story to give you a sense of how far we have come. Where it is the sitting President of the United States attacking the idea that somebody would have a criminal defense counsel or just a defense counsel. And this by the way, is a president who should have a lot of respect for criminal defense lawyers because he's had a whole bunch of them and he's actually promoted them to be the Deputy Attorney General and the principal Deputy Attorney General. So the essential Solicitor General, Solicitor General and actually Pam Bondi was his impeachment.
- [20:14]
Mary McCord
Impeachment defense counsel.
- [20:15]
Andrew Weissmann
Yep.
- [20:15]
Mary McCord
The entire top leadership of the Department of Justice.
- [20:19]
Andrew Weissmann
Yes. Okay, you're right. It's like so he should have a ton of respect for this, but he doesn't. So let's go back to the 18th century, John Adams when he was a young lawyer before he became President of the United States. What did he do? He represented eight British soldiers. Just understand at a time that there were troops in our country where there was to say friction is a mild understatement. And the British soldiers were accused of murder during a riot in Boston in 1770. And he represented all eight of them. Six of them were acquitted on a ground of self defense. Two were found liable for manslaughter, sort of lesser charge. But regardless, let's assume they'd all been convicted. That's sort of irrelevant. It's a noble profession these people. In fact there was a meritorious defense with respect to all of them. It really meritorious as to six of them. But that's sort of not the issue. Let's assume they were all convicted.
- [21:25]
Mary McCord
Right.
- [21:26]
Andrew Weissmann
This is part of what it means to have due process of law in this country. And the idea that you have the president of the United States attacking that, it's not a canary in the coal mine. It's not a sign of things to come. We are here, right? I mean, I have said this over and over again. This is not a question of, gee, I think you're just worrying about what might happen, whether Project 2025 will actually be implemented. And oh, you're like Chicken Little. That is not what is going on when the presidency of the United States is denigrating the very being of what it means to have the rule of law in this country. And you see it in the quote that you gave with respect to Pam Bondi and on and on. And you have the head of the FBI in New York resigning over this. We are here. And that maybe I'm going to get off my soapbox because this is a perfect way to turn it back to you, Mary, to talk about what is happening in your old office in D.C. that's right.
- [22:26]
Mary McCord
And you know the defense attorneys right now just to help prepare for those who have been fired. Remember all of the Jack Smith team fired, not just demoted, not reassigned, but outright fired. All of the probationary January 6th Prosecutors fired. Others within the Department of justice and at U.S. attorney's office asked to resign after refusing to carry out directives. That applies to both the directive from Maine DOJ to dismiss the Eric Adams case without prejudice. And we're going to come back to that later. It also included the directive to the criminal chief in the U.S. attorney's office in D.C. to try to seize assets without probable cause, then asking these people to resign when they refuse those directives. And it, it's why people like the seven senior prosecutors in the U.S. attorney's office in D.C. who were demoted last Friday. It's why we need a bar of lawyers ready to stand up for these people, ready to defend them if they are investigated, you know, subject to bogus investigations, criminally defend them if they have employment complaints that they want to bring. And we're going to get to Hampton Dellinger in a minute, who's one of his jobs as the holder of the special counsel within the Office of Special Counsel, not to be confused with Jack Smith, what his job is to protect whistleblowers, et cetera. I mean, that's why lawyers are important. And speaking of what happened on Friday, I mean, these are seven people who are the heads of the former Criminal division chief Another person who held the same position I used to hold, John Crabb, who I've known for probably close to 30 years. We both kind of grew up in that office together. He was chief at the time of the January 6th attack. He was also involved in cases against Steve Bannon and Peter Navarro. And so he is one who was demoted from his position all the way down to what's been reported, misdemeanors or case intake. In fact, all seven, at least according to reporting, were reassigned to misdemeanors or case intake. And let me tell you what that means. So because the U.S. attorney's office in D.C. prosecutes both federal crimes and local crimes, there is a almost 24. It's not truly 24 7, but pretty darn close operation in the basement of Superior Court, where police officers every morning come in with their intake forms based on arrests made over the previous 24 hours or less than 24 hours. They come in that morning. They come in very early. I've worked this position myself. And they present the cases to the ausas who make the decision, paper this case, meaning yes, it'll be charged, or no, paper this case, which means, no, it'll be dismissed. This is something you start doing sort of in your early stages of your career. And it's supervised by people higher up who've got more experience. But it's one of those early stage things. And then misdemeanors itself, that is your first stop most of the time in the U.S. attorney's office in D.C. you might spend six months there, you might spend a year there. It's a place where special ausas from other parts of the government come to help because there's a big volume of misdemeanors to be prosecuted. These are cases that generally do not require a jury trial. They're tried before a judge. A judge might hear eight cases in a day. And that means attorneys have to prosecute those cases. They include things like simple assault cases and minor theft cases and things that don't usually result in serious injuries or serious loss of, you know, high dollar amounts. So this is where these people, former head of the Criminal Division, the head of the Capital C's prosecution unit, in other words, the head of all those attorneys who were prosecuting the nearly 1600 January 6th cases. The chief and deputy chief of Federal Major Crimes, which handles firearms, drug crimes, armed robbery, carjackings, immigration, assault and threat cases, the things that actually Trump administration And the acting U.S. attorney, Ed Martin, say they want to prioritize. Also the deputy Chiefs of Public Corruption, Fraud and Civil Rights Section. These are people who prosecuted Stuart Rhodes of the Oath Keepers and also someone who had prosecuted police abuses, including two police officers who were pardoned by Donald Trump. And then, of course, we had the person who prosecuted Proud Boys leader Enrique Tarrio also busted down to misdemeanors. It is hard to see this as anything other than than what I heard Pam Bondi saying last night on television. Right. We will root them out and we will find them. There is nothing here that suggests these people, quote, unquote, hate Donald Trump. They were doing their jobs.
- [27:11]
Andrew Weissmann
So let me Again, we talked about a statement from the American Bar Association. There's a statement that has been issued by various people who have served for many, many years of all sorts of political persuasions. There are people who have been assisted United States attorneys in the D.C. u.S. Attorney's office opposing the nomination of Ed Martin. They talk about things that just are so reminiscent of what you said. They say that they have served in the office under both Republican and Democratic administrations. We serve no political agenda, no political party and no political figure. And this is the reason that they say no United States Attorney should terminate Assistant United States Attorneys for prosecuting individuals who invaded the capitol building on January 6, 2021. Investigate Assistant United States Attorneys for pursuing criminal charges that were upheld on challenges to them by more than a dozen United States district judges. Tweet or otherwise publicly comment on matters either under investigation or outside his purview. Directly contact sitting members of Congress on matters protected by the speech or debate clause while making basic facts at issue Order the head of the office's criminal division. That's what we were just talking about, Denise Chung. To open a politically charged investigation and request asset seizure without any predication. Ignore serious conflicts of interest by personally moving to dismiss a criminal case while he represented the defendant and threatened to investigate a law firm whose lawyers have provided pro bono services to a potential target without any basis in law or in fact. And it ends with on that litany, the nominee has done all of this with abandon and evident relish. And it goes on. And to be fair, this is a statement of their position. There hasn't been a response to it, but it is a reaction of the bar or members of the bar to what we are talking about. And this, I have to say, is where I'm proud to be part of this profession in the way that so many people talk about where's the accountability? And we saw this when we saw the disciplinary proceedings against, just as one example, Rudy Giuliani where it is a privilege to be a lawyer and to be licensed. And there's an obligation that you're supposed to adhere to when you're a lawyer. And I'm certainly not saying all lawyers adhere to it. That's the issue.
- [29:44]
Mary McCord
Right.
- [29:45]
Andrew Weissmann
And so it is important that we police ourselves. And when there's this kind of behavior and alleged misbehavior, one of the remarkable.
- [29:53]
Mary McCord
Things about this letter is it is signed by people who have served in that office, my old office, going back decades and decades. In fact, it even says for those of us who have served in the Office of the United States Attorney and still have a breath, that time is now, meaning the time when we are called to stand for the full and fair administration of justice and the rule of law.
- [30:16]
Andrew Weissmann
Again, in our show notes, we will have that full document so you can read it. The fact that you're seeing this confluence is a sign of the decomposition of the rule of law and the people who still have a breath who are willing to speak up.
- [30:34]
Mary McCord
We talked about, again, our theme here, the lawyers get rid of the lawyers. Hampton Dellinger, We've talked about this case a few times. The special counsel in the independent agency, the office of the Special Counsel, is a lawyer. It is a requirement of that position to be a lawyer. That is the position, again, who tries to stand up for whistleblowers, who investigates unlawful personnel actions, but has no authority on his own to direct that somebody be rehired or direct that any agency do any particular thing with respect to federal employees, just has that ability to investigate, make recommendations to the agencies, maybe that, oh, you know, this person was actually blowing a whistle on waste, fraud and abuse and that's legitimate. Or make recommendations to the Merit Systems Protection Board about personnel actions. He has no independent authority to actually order anything to happen with respect to federal employees. And, you know, this is a position that Donald Trump has sought to fire. His attorneys went into court, they got a temporary restraining order. This is something that then the Department of Justice took up to the Supreme Court to try to get the Supreme Court to stay that temporary restraining order. The Supreme Court refused to do that. They just kicked the can down the road and said, we'll see what happens after the temporary restraining order ends because the judge is due to do something. And we can always take this up later. The judge has now done that something.
- [32:04]
Andrew Weissmann
Amy Berman Jackson, who I know very well.
- [32:06]
Mary McCord
That's right. Judge on the District of Columbia District Court, she issued not just a preliminary injunction, she actually issued a final ruling on summary judgment. And sometimes when there are no genuine issues of material fact that are in dispute and the entire dispute is about the law, the parties will say, we don't need to have, like, a big trial with evidence because we actually agree on all the material issues of fact, so you can rule as a matter of law. And so she went ahead and said, I'm consolidating the motion for a preliminary injunction with the ultimate summary judgment on the permanent injunction. She ordered a permanent injunction against and declaratory judgment against the removal of Hampton Dellinger from that position. In doing so, she rejected arguments that the statute that requires that he could only be fired for cause, right, malfeasance, abuse. She upheld that statute as constitutional. The government had argued that the president, under his Article 2 powers, has got to be able to fire anyone that he needs to within the executive branch. And she found, no. This statute that requires firing only for cause, this is constitutional, she said. And to the point we were just making about the need to have advocates for people, including the special counsel. She said the court finds that the elimination of the restrictions on plaintiff, that, meaning Mr. Dellinger's removal, would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President, its independence. And so this is, it's a lengthy. I read the full opinion. She goes into the entire history of why we even have this office. She also goes through all the Supreme Court cases that have called into question some of the four cause requirements for firing single agency heads of independent agencies, but also points out how the Supreme Court, even in those cases, has sort of put the Office of Special Counsel to the side. So we will see where this goes now. But again, here's a lawyer doing a job to represent people who may be calling out abuses within government or may have been mistreated within government. And we'll see what, what happens with that.
- [34:25]
Andrew Weissmann
It's so funny because I also highlighted that. But her basic point is, like, you know, there can be. It's going to be a legal issue that we're going to come back to a lot, and we'll get deeper into it. But she basically says all of that should not and does not apply to the Office of Special Counsel because of its limited jurisdiction and what it can do and the irony that it's supposed to be there as an entity that is independent and can call out wrongdoing and flag wrongdoing to make that person at the beck and call of the person who could be engaging in that conduct is completely anathema to the very reason for setting up this agency. So it needs to be treated differently.
- [35:06]
Mary McCord
Yeah.
- [35:07]
Andrew Weissmann
Mary, should we take a break and come back? And when we do, we're going to talk about a new thing that happened in the Mayor Eric Adams criminal case and we're going to address that. And both of us have some kind of interesting takes I think that we want to flag for you. Let's take a break and come back and talk about Eric Adams.
- [35:25]
Mary McCord
Let's do it.
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- [37:36]
Andrew Weissmann
Foreign Eric Adams. There has been a new development. The judge is waiting to get briefs from people on the 7th of March. So in three days. And then if he needs it, he said he would have some sort of oral argument on the 14th. Those are dates that are sort of set in stone by the court in the interim since our last episode.
- [38:05]
Mary McCord
That's right.
- [38:06]
Andrew Weissmann
Eric Adams has done something which you think a defense would do, which is that he said, I think that the case should be dismissed with prejudice. If you recall, the government had moved to dismiss without prejudice. And that led to what we termed in one of our episodes the choke collar. That's right, because it means he has him on a very, very tight leash to keep the analogy going. So here the defense has said, as you would think any defense lawyer would be, which is, you know what I love that the case is being dismissed, but it should be with prejudice so it cannot be brought again. And Eric Adams said that the reason for that is the letter from Danielle Sassoon, now the former head of the Southern District of New York, United States Attorney's office is now public. And it said all these terrible things about him, including that they think he's guilty and that they were going to bring additional charges related to destruction of justice. They don't in any way say it's because of bad things that were said about Eric Adams by the current administration or any of that conduct. Or, for instance, Emil Bovet had said, I'm not in any way questioning the strength of the case, any of that sort of public stuff. And normally, by the way, that's not a reason to dismiss a case with or without prejudice. The judge would just do a very searching review before picking a jury to make sure. Because I've been on lots of cases where there's lots and lots of public attention and whether it was proper or improper public attention, unless it's so egregious, the remedy is to really make sure that you have an impartial jury. So I think this belated argument by Eric Adams, here's my theory, my theory as to why he suddenly came up with this idea, because it obviously isn't something that he didn't know weeks ago. And so he could have made this argument the first time they appeared in front of the judge on this. And he didn't is this isn't a potential off ramp. Remember that you have Pam Bondi publicly saying, oh, I think this case is sort of garbage. That's my hyperbole.
- [40:12]
Mary McCord
Well, he very much uses that right in his motion.
- [40:15]
Andrew Weissmann
Absolutely.
- [40:16]
Mary McCord
It starts out being a motion dismissed because of government misconduct based on the leaks. And he talks about these all, you know, leaking all this information that he couldn't possibly get a fair trial, as you explained. But I just do want to call attention before you finish that point to he then makes, hey, and I sure don't blame his counsel for this at all. Makes hay about the change in position since Bove had said, I'm not commenting on the legal merits of the case. Since that it's been a dramatic shift. And not only has Beauvai changed what he said, but so has Pam Bondi. And so, of course, the mayor's attorney has come in in this motion and saying the need for dismissal is even more apparent given the full circumstances. In addition to the pending motion to dismiss, public statements from Justice Department leaders have confirmed what Mayor Adams has been saying all along. There never was and never will be a legal or factual basis for this prosecution. He then quotes Attorney General Bondi as describing the indictment as, quote, incredibly weak. Her chief of staff as saying, the case against Mayor Adams is just one in a long history of past DOJ actions that represent grave errors of judgment. And also a letter from email Beauvais saying the case turns on factual and legal theories that are at best, extremely aggressive. So he has just taken these flip flops. Flip flop. Mereden, flip flop. He's using that flip flop.
- [41:44]
Andrew Weissmann
That goes to why I think this was done. I think this is an off ramp for the government. Obviously, they prefer to have this without prejudice, in my view. So they have that choke chain and they have leverage over him going forward. He has to worry about what's going to happen to him. And as you and I have talked about, you cannot use a criminal case for a civil resolution, for instance.
- [42:09]
Mary McCord
Right.
- [42:09]
Andrew Weissmann
That's improper. So I think it's an off ramp. If the judge were to say, you know what, I need to have a hearing on whether there was a quid pro quo and what's the nature of the quid pro quo? I think there's not a snowball's chance. There's not a snowball's chance. I'll just leave it at that.
- [42:28]
Mary McCord
In a very hot place.
- [42:29]
Andrew Weissmann
In a very hot place that Emil Bovet is going to take the stand and testify under oath because it's too risky. And so this allows the current administration to say, oh, see, it's the Biden administration's fault for bringing a weak case or a politicized case, or it's Danielle Sassoon's fault. And so they can blame the other and they can avoid that hearing. I really think this is all about that off ramp. And that means that there won't be a factual hearing to understand what happened in Emile Beauvais office, which Danielle Sassoon has said was tantamount to this quid pro quo, which she thinks is improper. There won't be a determination on what appears to be the government's view, which is that they can use a criminal case to commandeer.
- [43:23]
Mary McCord
That's my point.
- [43:24]
Andrew Weissmann
I love it. Commandeer. I was going to use the word extort. That is sort of the import of what Emil Beauvais said in court. He said, of course, there was no quid pro quo, but he said even if there were, it would be okay. So sort of allows the commandeering of the mayor. So I think that allows the current administration to avoid all of that. And so that's what I think's going on.
- [43:48]
Mary McCord
Well, I think that you could very well be right on that. And we will see what the government files. We will also see what the amicus Paul Clement files in just a few days. And on that point about avoiding a hearing, I think the commandeering issue could have been a real issue at that hearing. We have talked in other episodes about how the federal government cannot commandeer state or local law enforcement to implement a federal regulatory scheme. And that's what immigration enforcement is, a federal regulatory scheme. So we talked a lot about the quid pro quo of this deal, but also, you know, making a deal with Mayor Adams to dismiss his case without prejudice, to revisit after seeing whether he will help implement the federal immigration enforcement scheme, looks very much like commandeering. In fact, it's hard for me to see what the difference would be between restricting funding federal funding to state and local law enforcements, absent some promise of cooperation with federal immigration enforcement, which we know in the past, in the first Trump administration, courts had said that could violate the 10th Amendment, commandeering. What's the difference between that and saying, we'll hold this criminal case over your head, Mr. Mayor, unless you voluntarily cooperate with federal immigration enforcement. So a hearing would avoid all of that as well. All right, so we move to our last issue. Yeah, serious issue. Well, these are all serious. For goodness sakes.
- [45:18]
Andrew Weissmann
I know I love our last topic. So let's. Yes, let's turn to that because it takes our discussion and broadens the aperture. And you know, I think that if I had to think about sort of what the value of this podcast is right now because there's such a flood, it's to really try and make sure people see the big picture. And by the way, that's not to say I am. I think one of the things that happens for me is in thinking through everything to prepare for this, it leads me to step back and try to see, or to use a phrase from our former lives as part of the intelligence community, it's to connect the dots.
- [45:55]
Mary McCord
Connect the dots, yes. And, you know, our theme here was the importance of lawyers and the rule of law. And we saw far outside the sphere of main justice, but in the international arena, we saw the United States take a position that was very, very antithetical to the rule of law. That, of course, came with the US joining Russia in voting against a Europe backed Ukrainian resolution that had called for Moscow to end its aggression, demanded immediate withdrawal of Russian troops. And it came with really the US backing away from adherence to international law principles as memorialized in the United Nations Charter. So I'm going to take people back to that charter. What does that mean? Article 2, subparagraph 4 of the UN Charter.
- [46:42]
Andrew Weissmann
Welcome to lawyers.
- [46:43]
Mary McCord
Yes, that's right. That's right. I always have to go back to the source. Right. I'm not comfortable without looking at this.
- [46:48]
Andrew Weissmann
I love it. This is the appellate lawyer in you.
- [46:51]
Mary McCord
Well, I mean, this is what we do. Right?
- [46:52]
Andrew Weissmann
Can't take it away.
- [46:53]
Mary McCord
Requires UN Member states to refrain from, quote, the use of force against the territorial integrity or political independence of any state. Right. You can't evade another country under international law under the UN Charter of which Russia is a member. Ukraine, the United States, European allies, you know, many, many, many countries. Now, there is an exception to that under Article 51 of the UN Charter that says nothing in the present Charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a member of the United Nations. Right. At times, Russia has suggested that Russia's use of force, its invasion of Ukraine was justifiable under that Article 51, that individual or collective self defense. But there was no armed attack against Russia. There was an invasion of Ukraine by Russia in direct violation of Article 2, 4, the use of force against the territorial integrity or political independence of any state which is prohibited by the UN Charter. So this is what I think from just A pure rule of law perspective makes the US Actions in the UN this week so remarkable. While our European allies were clear that this aggression was the work of Russia, it was Russia's aggressive invasion that caused this war. That is where the United States backed away.
- [48:24]
Andrew Weissmann
Mary, that's not a Russia hoax that you're saying that. I mean, just to understand, we have. The President of the United States has said that the president of Ukraine is a dictator and has a 4% approval rating and was responsible for starting the war, meaning the Ukraine invaded itself.
- [48:44]
Mary McCord
Right.
- [48:44]
Andrew Weissmann
Final point again, in terms of what is going on, the big picture, the United nations and the principles that you were talking about. The United nations was founded in 1945 after the 20th century, saw not one but two world wars and realized that there had to be not just internal rule of law for nation states, but that we all as a globe have to have rules of law that bind all nations. And what we're seeing is the law of the jungle, which is to say no law. It's a Hobbesian state where everything's transactional. And one of the things is not only will that make us less safe, but even from just a financial point of view, the reason that people invest here, the reason people do business with us, it's true for other countries that have rules of law is because this is a rule of law country. It is so short sighted in terms of whose ox is going to get gored by this, which is oligarchs. And the American version of oligarchs will do just fine in the way that they have in Russia. That is not true in terms of our economy writ large, where what we see in those countries is the wealth of the country being stolen and being given to a very small few with no legal recourse. So, and nobody is sitting there thinking, oh, I really want to do business in a country that doesn't have a rule of law. And again, that's, that's just leaving the morals of this Assad and the danger of it. And let me end with one positive note in the town halls that we are seeing where people are speaking up and there are Republican members of Congress getting an earful. Those people understand the First Amendment and they understand much more than I maybe was giving them credit for. And the idea of the rule of law and that the claims of like, oh, this is about waste, fraud and abuse and they're pushing back, going, really, I'm not seeing that. And for them, they understand their First Amendment rights. They understand sort of innately some rule of law principles that I don't think they voted for this.
- [51:09]
Mary McCord
Well, I don't think they did either. And we're seeing more and more of it. And that's the good part of the First Amendment in this country, right? We have that right to protest. We have the right to make our voices known as listeners will know. I do think there are some limits in on that right. But this opportunity to go out and say this is not what we voted for. This is an important thing for people to do. So we will have much more on all of these topics and you know, maybe let's not kill all the lawyers.
- [51:37]
Andrew Weissmann
I like it. So speaking of the First Amendment, it is always great speaking to you and for us to be able to speak our minds and to have listeners who want to hear this and also give us lots of great questions. So keep them coming. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC NBC Originals ad free as well as subscriber only bonus content.
- [52:05]
Mary McCord
And to send us a question, you can leave us a voicemail at 917-342-2934 or you can email us at mainjusticequestionsbcuni.com this podcast is produced by Vicki Virgolina. Our associate producer is Jamaris Perez. Our audio engineer is Katie Lau. Our head of Audio production is Bryson Barnes. Aisha Turner is the Executive Producer for MSNBC Audio.
- [52:36]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and follow the series.
- [52:51]
Mary McCord
Foreign.
- [52:57]
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