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Main Justice
Who's Bearing the Consequences?
00:58:52
The Justice Department wants to wipe out Bannon’s contempt conviction. And exasperation sets in among immigration prosecutors.
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Andrew Weissmann
Hello and welcome back to Main Justice. It is Tuesday morning, February 10, 2026. Mary, we'll just say 2026. I don't think I'm gonna make it.
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Mary McCord
It's been a long year.
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Andrew Weissmann
That was Mary McCord. This is Andrew Weissman. Yes, that is because Mary and I, at some point we really should do a sort of behind the scenes. Oh, my gosh. You know, we have wonderful producers. They give us suggestions. We start thinking during the week about what we want to cover. Major decisions come up. Mary and I send those to each other. But then over the weekend, it was just like even over the weekend last night, I know, I was like, mary, here's something. Mary, here's something. Mary's like, have you seen this? Have you seen this? And we have just a lot of shorthands. And it was just chock full. So chock full that Mary, you're probably thinking, how, how about we get started, you know, put a sock in it because we have so much to cover. So, Mary, how's that for an intro?
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Mary McCord
Really?
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Andrew Weissmann
What are we going to talk about?
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Mary McCord
So you know, our latest breaking that has bumped our top segment is the latest out of the Department of Justice. And we learned about it first when the deputy attorney general put out a social media post that it had asked the Supreme Court to grant cert in circumstances Stephen Bannon's appeal from his conviction. Vacate the judgment below and send it back so that the lower court could dismiss the indictment of Steve Bannon for contempt of Congress, something he has already been tried by a jury, found guilty of, and served his time for. So you and I both had flashbacks about Michael Flynn, and so we'll talk about that and about this, really, you know, whatever people might think about the legal issues, the social media post was pretty troublesome to me coming from the deputy attorney general.
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Andrew Weissmann
Yeah. You know, I was trying to figure out why it bothers me so much. And I think the answer is because we know he knows better. And so there's a special place for that when, you know, the person knows because he was raised like us. He was somebody who was raised in the field office as federal prosecutor in the Manhattan U.S. attorney's office. And so, you know, he knows. And that just makes it harder to stomach.
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Mary McCord
We are living every bit on a cliffhanger because I'm not going to read that social media post till we actually start. Okay, so then we are going to talk about a number of different things in the immigration space and really with a theme here, which is that policy changes by this Department of Homeland Security under this administration are what have caused policy changes without ever thinking about how that would impact DHS's ability to comply with court orders, how DOJ would be able to actually come into court for all of the hundreds and thousands of habeas petitions that are being filed as a result of these policy changes, wreaking havoc, really, across the country on not just the immigration system and detention facilities, but the courts and everything. And that really came to a head last week when someone who had been an immigration attorney at ICE volunteered to go work as a special Assistant United States Attorney in the Minnesota office to help with these habeas and literally had what I would call something of a breakdown in court because of how she is a real meltdown. So, and we'll talk about some of these policy decisions and the court cases that have been adjudicating them.
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Andrew Weissmann
Huge decision out of the fifth Circuit, very much at odds with high hundreds of other cases.
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Mary McCord
Yes.
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Andrew Weissmann
Just to your point of the sort of inundation of cases, there now is this one circuit court decision that really stands out. So we're going to talk about that because that has huge ramifications in terms of the liberty interest. That's a long way of saying the freedom of people who are being jailed as a result of this decision throughout the fifth Circuit, which is sort of Texas, Louisiana area. Oh, yeah, that's a huge detention area. So that decision in terms of people's lives is having real consequences right now as we are talking.
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Mary McCord
Not to get into it before we get into it, but like they've been doing the policy across the country and they've been losing in court across the country, except for the. So.
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Andrew Weissmann
Exactly.
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Mary McCord
They've done it lots of other places. So now you can see everybody's going to get sent immediately to Texas. And we already know that many of those detained in Minnesota have gone right away to Texas. Okay, so we're going to talk about that. Talk about Ms. Ozturk, who did have a good victory in immigration court just I think yesterday. This then we will pick up and talk about the latest on the Epstein files. As folks probably know from the news, the unredacted, supposedly unredacted files were made available to members of Congress to view over at the Department of Justice yesterday and it appears that it wasn't completely unredacted. So we'll talk a little bit about that and of course talk about the testimony, or non testimony, as it were, of Ghislaine Maxwell, who was supposed to be deposed yesterday remotely from her detention facility, her camp in Texas. So we'll talk about her efforts, I think, to try to get a pardon here. And then we will close out with some updates on Fulton County. We probably won't have a lot of time with that because there's so much.
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Andrew Weissmann
Going on, but we are doing a special on that.
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Mary McCord
Yes, we will be doing a special and there is something that will be filed today that will start to, if it ultimately is unsealed, will give us some insight into what the basis for this search was. So that's a big deal.
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Andrew Weissmann
Absolutely. So, Mary, let's turn to our first topic. What did Todd Blanche have to say on X? And I'll give just a brief thing which is I don't fault the Department of Justice for using social media. I actually, when appropriate, think that the department should be explaining itself more to the public. And I think it can be used wisely to educate the public. So on that I feel like you do have to change for the times. And I don't fault them for trying to explain things. You know, there's a giant. But. But then it depends on what you say.
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Mary McCord
What you say exactly. I agree with everything you just said. I am not a social media user, but I understand how it's used by so many millions of people that if you're really trying to communicate, it's a good vehicle for communication. But the content is key here. So 10:30pm, Todd Blanche, from his official deputy attorney General X account said today the Department of Justice told the Supreme Court that the Steve Bannon's conviction arising from the J6unselect Committee's improper subpoena should be vacated under the leadership of Attorney General Bondi. This department will continue to undo the prior administration's weaponization of the justice system. Now, aside from the fact that there are no typos and nothing in all caps, this reads very much to me like something that President Donald J. Trump would say.
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Andrew Weissmann
God, I love this snark, Mary. I think I've had a terrible, terrible influence on you.
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Mary McCord
And he's even got unselect right in quotes.
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Andrew Weissmann
Attorney General should not be using terms like the unselect. It is a congressional committee established by a House resolution. And it's so disparaging of Congress. And it really is not the role of the Department of Justice to speak to a co equal branch of government like that. Also, Steve Bannon, he had a trial, he had an appeal. He appealed also to try to get the Supreme Court to weigh in. And there's this pending issue we're going to get to. So the idea that he somehow there was weaponization. When you have a jury verdict, he obviously could present his defense, he could call witnesses, he was able to get discovery. It's all of that happened and he was convicted. And let's just get real. Other than a legal issue, this was pretty much an open and shut case. He was called to testify and he didn't. And so the crime here was disobeying a subpoena from Congress. And the thing that's so bad as a policy matter is Congress is entitled to people's evidence. They are entitled to call people. And absent a privilege such as Ghislaine Maxwell asserting the Fifth, which by the way, she has an absolute right under the Fifth Amendment to assert the Fifth. There's nothing wrong with that. Absent a privilege, you have to testify. And the only way to help vindicate that power is if there are consequences to that power. And just remember, this is goose gander time. You may not like that this is happening to Steve Bannon, but there are going to be times when the Republicans in the House or the Senate want to hear from a witness who is a Democrat and vice versa. And in all of those situations, you at the Department have to be thinking systemically about your role in helping vindicate that. So it's not just undermining any crime, it is undermining a crime that is so essential to Congress being able to do its work.
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Mary McCord
And just to give People, a little bit of a flavor of the legal issue here. What Bannon is trying to argue, and what now apparently the Solicitor General of the United States is agreeing with, is that he didn't willfully default, meaning he didn't willfully defy Congress's subpoena because he had a good faith but incorrect assertion of executive privilege. In other words, he couldn't assert his executive privilege. But President Trump at the time was saying, I'm asserting executive privilege, so I want you to assert that to Congress. And so he's arguing, I can't be guilty of something that requires me to intend to actually commit a crime when I actually was in good faith relying on Trump's assertion of executive privilege. And that's an issue that was rejected under binding circuit precedent by the circuit. Now, there were some dissents in that, to be fair, and that's the issue Bannon has now taken up on appeal from the circuit decision and the denial of rehearing on banc by the D.C. circuit. The second issue he's arguing is whether he's entitled to relief from these convictions because. Because the committee that subpoenaed him was not lawfully composed. And this goes directly to what Taj Blanch said in this x post, the JSEC's unselect committee. And so, like I said, there are some dissents on this question of willfulness. You are absolutely right that Congress needs to have a way to conduct its oversight and to vindicate when someone just gives them the hand. Nope, not showing up, not going to come. I mean, there are other ways to get these issues adjudicated as opposed to just simply not showing up. But whatever you may think about those legal issues, what really bothers me is the way the deputy attorney general is talking about this. Right? This is undoing the prior administration's weaponization. And this wasn't even about the prior administration's weaponization. This was about Congress not having its subpoenas complied with. So, and you know what it reminded me of, and I flagged this in the intro, is several years ago when Michael Flynn, who had been briefly President Trump's National Security Advisor right at the very beginning of the first Trump administration, he was indicted and pleaded guilty twice to making false statements to the FBI in the course of an investigation, a counterintelligence investigation, about conversations he had had with the Russian ambassador seeking to have Russia not take any retaliation against US Government imposed sanctions on Russia as a result of Russia's attempted interference in the 2016 elections. And then Michael Flynn had told people including Sean Spicer and more importantly, the vice president, Mike Pence, that, no, he did not say anything like that to Ambassador Kislyak, the Russian ambassador. He then made statements to the FBI that were false about what the content of his conversation with Kislyak was. He was indicted. Like I said, he pleaded guilty. And then in came the Department of Justice under Bill Barr and said right before sentencing, we are moving to dismiss this because we don't think this is in the interest of justice for the department to go forward with this prosecution. This prosecution is already at its end stage. And those are pretty much the words that the Solicitor General, John Sauer, his pleading in the court starts with. The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice.
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Andrew Weissmann
And so in the District Court, Jeanine Pirro in the D.C. u.S. Attorney's office, Mary, your old stomping ground, has filed a motion, even though there's been a sentencing. So this is even further than the Flynn case because here there's been a guilty verdict at trial, there's been a sentencing, there's been an appeal to the D.C. circuit, all denied. And so what's left is this cert petition in the Supreme Court that is pend. So the posture is that Sarah is saying, basically, Supreme Court, send this back to the District Court. Because in the District Court, the U.S. attorney's office has moved to just throw out the entire case. Now, the law, the law here is extremely favorable to the government, which even though some of you might be going, this is just another example of, like Flynn, you're just trying to be will impose the law on Comey and Letitia James, and we may announce investigations of governors and senators and the head of the Federal Reserve. And it all may seem like just quackery, but when it comes to people we like who have been convicted either by a jury or their own words, due process. Right, Right. We don't want to go forward now. The law is very favorable to the govern and sort of for two reasons. One, the Supreme Court has very much said, including in Trump versus United States, that the prosecution function is a function of the executive branch, but also just as a practical matter, who's going to prosecute? In other words, if the DOJ says we don't want to go forward, it's like, how are they going to deal with it? And so in the Flynn case, there was a lot of argument, and the judge ultimately said, because the case is kind of over, I'm not so sure this is what I'M going to do. And they basically pushed it so far that Trump, before he left office, had to decide, okay, you know what? I'm going to just pardon him because the time is running out for me to do that here. Bannon has been pardoned for things. Just remember he's also been convicted in state court in connection with the Build the Wall scam where he and other people have been convicted that can't be touched by a federal pardon because it's a state conviction. But here I really do think if there's any case where there should be a limit on the ability for prosecutors to say, oh, I think it's in the interest of justice not to go forward, this would be it. Not just because the case is so over. In other words, you're not dealing with, oh, I want to have new prosecutors assigned and who's going to do it, but also this idea that this crime in particular goes to a co equal branch of government. And you really can't have DOJ having the position which is we're going to unilaterally decide what parts of Congress are going to be able to have teeth and what parts aren't. I mean, it really is, to my mind, one where the courts have never had to deal with this because fortunately in our lifetime this has not happened. But this is one where if the court were to say, like DOJ is okay doing this, Congress should be able to step in and prosecute and go forward.
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Mary McCord
I was just gonna say, because already, I mean, I get what you're saying, but already the department has a whole lot of discretion to even bring cases on referral from Congress. Cuz remember, there were other referrals, Congress saying other people didn't show up, didn't testify, we want you to prosecute them. And the department made certain decisions about that. And I will say when I was in the department, we got some of those referrals too, and we decided we're not going to prosecute those things. So there's already an issue where Congress does not have its own ability kind of to vindicate its interests, at least when it comes to a criminal prosecution. And like you said, the Trump v. United States case with immunity, if it was ever in doubt, that made it crystal clear that prosecution is purely an executive core function. That just adds more to this. And the interesting thing about these motions to dismiss, and this is what happened in the Michael Flynn case, is the rule says that the government may, with leave of court, dismiss an indictment. And so then what happened in the Michael Flynn case is the judge says, well, leave of court means I get to have a say in this and government. I don't necessarily buy what you are saying to me about the interests of justice. I'm going to appoint an attorney to argue the other side of that. Then the government took that up on a petition for writ of mandamus to the D.C. circuit, which said, no, you can't do that, Judge, because this is almost completely in the discretion of the Department of Justice to make these decisions about prosecution and dismissal here. There's no indication so far that there's going to be any effort by the judge who's handling the Bannon manner to appoint counsel to argue the other side. And I think, given what happened in Michael Flynn, that's unlikely. But it is a really an area, like you say, Andrew, where there's just so much discretion in the government. But it's particularly troublesome here how far along we are in this process with Stephen Bannon and why at this point, take this position other than for political purposes.
- [18:41]
Andrew Weissmann
One thing that you reminded me of is that the thing says that the court has to weigh in on this. They have limited discretion, but they don't have to dismiss with prejudice. They could dismiss without prejudice. Why is that important? Because without prejudice means that the case is still alive for a potentially, at least for a future prosecutor to decide, meaning that obviously the president can just pardon him yet again. But if you want to just sort of wipe this slate clean so he can say, I've never been convicted, that's where the judge doesn't have to say it's with prejudice and that it can never be brought again. That issue, by the way, came up in the Eric Adams case, the mayor of New York, where the government had actually wanted to say it should be dismissed without prejudice, because the government there, the Trump administration, wanted the case to be hanging over his head so that they could reinstitute it. This is what I think, and I think this is what the judge thought. Reinstitute it like a sort of Damocles. If the mayor didn't play ball with the Trump administration and the court said, no, in this situation, if you want me to get rid of the case, I'm getting rid of it for all time so that this is not hanging over their head and you don't have an elected official beholden to the Trump administration. So fascinating. But you know what? Big picture, once again, we are just seeing the irony of the Todd Blanche tweet where he's sitting there going, oh, we're doing this because of the weaponization of the prior administration. I mean, it is just laughable when we're living through Letitia James, James Comey. And then here you've got Michael Flynn from the last Trump administration and now Steve Bannon and this. And you're saying that is supposed to be weaponization. Last time I checked, it was the Garland Justice Department that prosecuted the son of the sitting president.
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Mary McCord
Yes, yes, yes to all that. Okay, so before we break, because we don't have time to talk about this today, but the government has filed its appellate brief, its opening brief in the Fourth Circuit on its appeal of the dismissal of both the Comey and the Letitia James cases. These are the ones that were dismissed because of the. I'm going to put in air quotes here. The interim U.S. attorney, Lindsey Halligan, being determined to not be validly acting as an interim U.S. attorney and those indictments therefore, were not valid. And so that the government took some time before it noted an appeal, did eventually note an appeal, has filed those briefs. It's arguments we've talked about before. But we'll wait till there's more briefing and then we can revisit this.
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Andrew Weissmann
By the way, that's just so everyone understands with respect to James Comey, that's really kind of necessary for them to win that in order to revive the case against James Comey because the statute of limitations has run. So if they were to win this, it would sort of revive all of that and bring it back to life. And we'll see what the circuit does. It could eventually go to the Supreme Court, so it'll be some time. We'll keep our eyes on it. But nothing's going to happen imminently on that.
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Mary McCord
That's right. So let's take a break and we'll come back and we will move into the immigration space.
- [21:58]
Andrew Weissmann
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Mary McCord
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- [22:49]
Mary McCord
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Andrew Weissmann
Mary Last week we actually spent a lot of time talking about Minnesota and by the way, the week before that.
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Mary McCord
Yes, and the week before that.
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Andrew Weissmann
I think for very, very, very good reasons. You made reference to this immigration attorney who was seconded to be what's called a special, which is, and that happens from time to time. Sometimes military lawyers, lawyers from other parts of the government can be brought in.
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Mary McCord
Into the U.S. attorney's office. Right. As a special assistant United States Attorney.
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Andrew Weissmann
Because they're not trained in the same way. So that there's a lot of oversight and work that needs to go into bringing somebody like that on. And I've had that experience both in the fraud section. I've had that experience when I was at the attorney's office. And there's a lot of handholding. In the same way, when you have a new person in general crimes, a new baby prosecutor, you have a lot of people hand holding. You don't ever send them into court alone. They do trials with somebody overseeing them. They go to the grand jury with somebody. And you can't just throw them in because they don't know what the process is. Generally they may not even know the law. They don't know the judges. There's just a lot of work. But you do it because sometimes you are short staffed and sometimes the special does have some expertise that can be made use of, like military law or immigration law. Here, by all accounts, it was very much a question of the Minnesota U.S. attorney's office is hemorrhaging people, including really senior people. There've been a lot of articles about that. And just there's devastating consequences to their ability to handle the absolutely metastasizing caseload before the district courts because of these policy changes, where thousands of people are now in the legal system and because of some Supreme Court rulings, it's required that people bring individual cases. They sort of restricted and Congress restricted the ability to bring class actions and national injunctions that could have challenged these.
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Mary McCord
Policies all in one fell swoop.
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Andrew Weissmann
Exactly. So you've lots and lots of its little pieces. We're going to talk about the Fifth Circuit, but the Fifth Circuit's outgrowth is because there are hundreds, actually thousands of these cases. That's one of them. So Julie Lee, and apologies if I'm butchering how to pronounce her last name, did have a meltdown and understandably I'M not trying to endorse what she said in court, but this is a judge who is extremely concerned about why orders were not being followed. And I just want to make sure people understand this is not a technicality. This isn't where the judge is saying, I told you to file the brief on Monday. Why did it come in on Tuesday? What the judge's concern was is that somebody's liberty was improperly taken, that somebody who should not have been arrested or somebody who needed to be released should.
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Mary McCord
Not have been detained.
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Andrew Weissmann
Right, exactly. Should not have been be in jail. Mary, I can't put myself in the position of being back in the U.S. attorney's office and thinking about a situation where somebody spent an extra minute in jail because we had not followed a court order. The Fourth Amendment is about liberty interests and privacy interests. There is no greater liberty interest than being seized and put in a can behind bars. And so when the judge said, I'm concerned about my orders not being complied with, I want to make sure people understand this is not persnickety. This is not a small thing that the judge was worried about. And it does not matter whether it's a rich person or a poor person or a black person or a white.
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Mary McCord
Person or an immigrant or a citizen.
- [27:10]
Andrew Weissmann
Exactly, exactly. And we talked about that when we were talking about people who were extracted and stashed in El Salvador, and they're largely, I think, exclusively from black and brown communities. And so that's what the judge was upset about. Yeah.
- [27:24]
Mary McCord
And he starts out to be clear. I'm going to back up just a little bit because I want to get into what happened in court that day. But two of the big policy changes that have driven all these hundreds, if not, I think, thousands of cases of people detained. One is the policy change in how they're treating people who are found in the country by ice, who are not here lawfully, but maybe have been here for 5, 10, 20 years, have families here, and they're no longer treating for 29 years. Under the statutes Congress passed, the Department of Justice, the Department of Homeland Security, took the position that people who had been here for that amount of time, even if they were put into removal proceedings, even if they were arrested on an administrative warrant for not being here lawfully, they were eligible for bail, they were eligible to be released if they hadn't committed any crimes, they weren't a danger of flight, anything like that. So normally, if they'd be picked up, they could say, I've lived here, I've been working DA Da, da, da, da. They would be released. The big policy change this past summer, and this directly relates to the Fifth Circuit case we'll talk about in a minute, was we're not going to do that anyway. We now interpret the statute differently. We're going to treat those people just the same way we treat people who are literally arriving at the border and have come across the border and they're trying to seek admission. And if the border agent at that point says, we don't think you've got any basis for being here, they put them in detention, and the statute says they stay in detention until they can be removed. So the policy change is now the government is treating people, even if they've been here for 20 years, as people just coming and seeking admission and not having a basis for admission. So that means all those people who would have been released on bail are now being detained in a prolonged way. And this is the issue where hundreds, at least based on what I read last night from a couple of other cases, there have been hundreds of cases where they've gotten court orders for their release.
- [29:28]
Andrew Weissmann
Exactly.
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Mary McCord
The other big change in policy is a change about making warrantless arrests. Right. We've had the issue of them being made without individualized probable cause that the person is not here lawfully. It's just, you go do a raid at a Home Depot parking lot and people and there's racial profiling going on, et cetera. The other issue is making a warrantless arrest of people without making a determination that they're actually a risk of flight. And the government had, until 2025, had taken the position that, you know, you need an administrative warrant to arrest an immigrant on the grounds of their not being here lawfully. And you can make an arrest without a warrant. Right. If you have probable cause that they are here unlawfully and that they might flee. And previously, the government had looked at this provision about risk of fleeing to be. You wouldn't be able to be found, the migrant wouldn't be able to be found if you took the time to go get an administrative warrant and come back and detain on that warrant. The acting director of ice, Todd Lyons, put out a memo saying, that's the wrong way to look at it. Now you just look at it like, hey, do we think it's likely that this person is going to be around if we come back for a warrant? And in most cases, if you don't think he's still going to be there by the time you go and you get your administrative warrant and you come back and remember, administrative warrant doesn't have to be signed by a judge. Just has to be some ICE or DHS personnel saying there's probable cause he's.
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Andrew Weissmann
Not here lawfully fox guarding the head house.
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Mary McCord
Yes. That means so many more people are being arrested without warrants, then they're being treated like they're seeking admission and putting in mandatory detention. And I give you all that background because those policy changes are why we have this huge influx and we have all these court orders, including the ones that the judge was talking about when he had Ms. Lee come into his court where he has said, I'm ordering this person to be released. And then it's not. Andrew, it's not just like a day that goes by, it's days and in some cases weeks.
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Andrew Weissmann
Exactly.
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Mary McCord
And the orders are just not being complied with.
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Andrew Weissmann
And you could imagine a court saying, you know what? If you don't have the infrastructure to comply with the due process, they're not being detained. If you don't have the ability to comply with the Constitution, you do not get to detain them. I mean, to me that's such an obvious outcome.
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Mary McCord
And that's what he said. Let me read you two things and I swear I'll shut up because I've been talking too long. He says it close to the end of this hearing.
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Andrew Weissmann
Yeah.
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Mary McCord
And we want to get to what Ms. Lee said he gets right. At this point. He asked the government, before this operation started Metro surge, did the DOJ or DHS anticipate that it would generate a large volume of habeas petitions and court ordered releases? Government. Your Honor, I don't know the answer to that question. The court, do you know whether or not there were any additional personnel systems protocols that were put into place to ensure compliance with court orders that would arise from that operation? The government? I don't know the answer to that either. And he says basically you did nothing to prepare for this massive influx.
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Andrew Weissmann
And in court There was both Ms. Lee and a more senior person. And the more senior person, by the.
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Mary McCord
Way, that's who was answering those questions.
- [32:42]
Andrew Weissmann
Yep. Was perfectly responsible in terms of, you know, she didn't say anything outrageous. Ms. Lee obviously had a meltdown. She had very colorful words for saying how bad she found the work, that she didn't want to be here. She did say, you know, at some points I think you should just hold me in contempt because at least I can get some rest. That she's so overworked, it's like pulling teeth to get answers. She said, I'm A bridge between you, the court and the agency trying to get them to do the right thing. So you really understood she was just like at wit's end and it showed. And look, was she a model of how to behave? No. But she also was put in this outrageously tough position. So you can understand it. And I don't think focusing on her as a person is the issue. It's focusing on the systemic issue and the policy change. Since we're all into quoting, I thought I would quote from a Lewis Kaplan decision. He's a very, very esteemed judge in the Southern District of New York. He had one of these individual cases before him. And it's a good segue to then discussing the fifth Circuit, which has the same issue. And he sets this up by saying, well, first if someone comes to the country illegally, he says, well, naturally somebody might ask, well, what's the big deal? They just send them back. And he said, that's not what happens in the United States. The United States, through Congress, has a process of affording asylum to non citizens who enter the country. And that even if they enter the country illegally, if they have a well founded fear of persecution in their own country on account of their race, religion, nationality, membership in a particular social group or political opinion. And so there's a process for doing that. And then let me just talk about the person who is in front of him. Sergio Alberto Barco Mercado. He was a Peruvian citizen. He crossed into the United states illegally in 2022. He since then, though, has worked. He has a family, he has children. One of them is a United States citizen. He is a carpenter. He has no criminal convictions. And he has shown up repeatedly as required in the immigration courts. And he voluntary, this is now a quote. He voluntarily appeared on August 8, 2025. And two things happened. First, the immigration court set Mr. Barko's case for a final hearing on his asylum claim. That is, he's entitled to make this claim. And that would determine whether he was to be removed from the country or not. But as Mr. Barco left the courtroom, U.S. immigration and Customs Enforcement, ICE, the ICE agents swooped in, grabbed him and took him into custody at 26 Federal Plaza, across the street from this courthouse. At the time, Mr. Barco had been released by court order on a bond of $3,000 which had been posted. There was a court order releasing him. And ICE decided unilaterally, to my view, violate that court order. He was out on bond at a court, determined that. So you ask yourself, what is the authority to do this now. Mary, you made the point that there was a policy shift that happened with Todd Lyons coming in on July 8, 2025, saying, we are now changing how we interpret the law. We think that it is now mandatory, that there essentially is no bail and that all these people who had been given bail by judges, that that was wrong. And we're in the executive branch reinterpreting this to say that that's not allowed. So instead of going to court and saying to the judge, we think that you have to put Mr. Barco in custody, they just went and did it.
- [36:39]
Mary McCord
Based on the statute. Like, we now realize we've been reading this statute wrong for 29 years.
- [36:44]
Andrew Weissmann
And instead of going to the court and saying that I know there's a court order, we don't want to violate it, but we think you have to change it because of our view, they just do self help, which is not how it works. And this is how the judge responds because he strikes this down up one side and down the other. In an incredibly well thought out opinion. As will appear below, the current administration's change of Heart on July 8, 2025, exceeded its authority and in any case was wrong under the law. As it stood in 2022, that's when Mr. Barco was given bail. As it stood on July 8, 2025, that's the date that Todd Lyons had rethought the law and as it stands now, and by the way, he has italicized that, which is why I'm screaming into the microphone, Mr. Barka was eligible for and had received release on bond. And so he finds that this is incorrect as a matter of statute, it violated due process. And he ends his decision with a quote about the Statue of Liberty and the words there. And he very honestly says, policies can change, but you cannot do something that you don't have the power to do. That Congress is the one that sets up the immigration laws or not the executive and the courts say what the law is, not the executive, and this is a violation of his rights and he grants him bail. But not before, just to be clear, not before Mr. Barco has spent time in jail. And that means, Mary, again, just to personalize it, I can't imagine someone coming to you or to any responsible person at DOJ and saying, you know, we think the law has changed and let's assume that's in good faith. Let's assume that.
- [38:44]
Mary McCord
And we're like, okay, let's just apply it that way.
- [38:46]
Andrew Weissmann
Then you would go to court before you would subject somebody plus there's a court order. So, like, I don't know how you get around that. I mean, it is a complete violation of the bail order.
- [38:58]
Mary McCord
It's so interesting too, because in the fifth Circuit case, which is just an appeal from another one of these many, many cases, exactly the same, that, yes, that goes up to the 5th Circuit Judge Edith Jones, who writes in a 2 to 1 decision that comes out, you know, agreeing with the government's new statutory interpretation. She though cites this Barco Mercado case of Judge Kaplan's and says since DHS began to detain unadmitted aliens under the provision of law that you don't need to know the 1225 B2A, well over a thousand aliens have filed habeas corpus petitions seeking bond hearings. In most of these cases, the district court bound in favor of the petitioner. She cites the Mr. Barco Mercado's case and says that in that case, that decision, the judge, she says, in a parenthetical, listed 350 decisions that bound in favor of habeas petitioners. Yet she goes on to basically agree in her opinion with the government's reinterpretation of statutory language. Now, we would have to spend an hour getting into all the different ways to read the words of these two statutes that fit together and overlap with each other. And so there are arguments you can make about statutory interpretation either way. I think, though, that it is pretty meaningful. And the dissent points this out, that the government had interpreted it a certain way for 29 years, meaning people can are eligible for bail, bail for bond, they're eligible to be released when they've already been here in this country, even if they came in unlawfully and they're not here lawfully. And that Congress never stepped in that nearly 30 years and said, oops, nope, that's not what we meant. We meant something different. And here's how she starts her dissent. The Congress that passed ira, that's a acronym for this immigration act, would be surprised to learn it had also required the detention without bond of 2 million people for almost 30 years. There was no sign anyone thought it had done so, and nothing in the Congressional Record, where the history of the statute's enforcement suggests that it did. Nonetheless, the government today asserts the authority and mandate to detain millions of non citizens in the interior, some of them present here for decades on the same terms as if they were apprehended at the border. She then drops a footnote to talk about how unusual it is that despite 30 years of this uninterrupted interpretation of the statutory provisions, the government has insisted that we take up issue with unprecedented urgency. They sought expedited review and in fact, the court obliged on that expedited review and they had hundreds of cases they could have chosen from to go up on appeal. Right. And where do they go? They go in the fifth Circuit, one of the most conservative circuits in the entire country. And you've got to think a little bit about the gamesmanship there, because with this win in the fifth Circuit, like you pointed out, Andrew, because people can only see KBS in the place they're detained. If ICE locks somebody up and whisks them quickly enough to Texas, then this is the law that will govern unless and until it is overturned.
- [42:14]
Andrew Weissmann
Right. So one of two things to happen is the people involved either trying to get the whole 5th Circuit to hear the case or go to the Supreme Court. So there's more to come on this. One quick policy point I just want to point out that talks about the cruelty of this. We've a lot of times talk about the law and we talk about the cruelty of it. And part of that is the idea that you wouldn't go back to court to have them assess your position as opposed to just going and saying we're just going to lock the person up. But here's the real issue. You know, the president and other people are fond of saying, well, we're only going after the worst of the worst. We're only going after people with really bad criminal histories. One. That's not true. We've just read one case, that Mr. Barkow case. A reason for that is that's just one illustration. That's not true. And the point is this policy change has nothing to do about the worst of the worst. The worst of the worst wouldn't get bail.
- [43:13]
Mary McCord
That's right. Because the statute.
- [43:14]
Andrew Weissmann
Exactly. So for the worst of the worst, they get detained. The only reason to change this is for cruelty and sort of politics of being able to say, look, we're locking up immigrants and immigrants are all bad even when they're here and they're working and they can have children or a spouse.
- [43:36]
Mary McCord
And many are paying taxes because our government makes sure, even if you're not here lawfully, you pay your taxes. Of course they'll give you a number to do it.
- [43:43]
Andrew Weissmann
It just has nothing to do with this sort of bumper sticker. This is imprisoning the worst of the worst because it literally has nothing to do with that.
- [43:54]
Mary McCord
So before we break, I want to just, I won't explain it. But there was a good decision out of a district court in Oregon on the other policy change about what it means to be fleeing or a risk that a person would flee. Before ICE or CBP could get an administrative warrant, a judge there enjoined the government from engaging in that practice and said, you must have specific probable cause that the person is really likely to escape before a warrant can be obtained. And he asks for regular reporting for every single warrantless arrests. He wants a reporting of what that probable cause was, where the arrest took place, was it a place of business, a residence, where was it, what are the person's ties to the community, et cetera. And so I don't know. The government's probably going to appeal that, but that is a good news case.
- [44:44]
Andrew Weissmann
As is the Auster case. The graduate student is Tufts. It had gone back to the immigration court, and there the immigration judge said that the government had not proved its case to remove her. Remember, Ms. Usturk had sort of this glittering history as a graduate student and had been detained for weeks and weeks and weeks, was finally released with the federal district court and then the court of appeals. The governance position was found to have been something that was based on her First Amendment protected activity. And then when the merits came up, the immigration judge is reported to have said that they just have not proved that there's any basis to remove her that's not protected by the First Amendment. Let me just quickly read what the DHS spokesperson's response was to that ruling, and I'm just going to read it and then we can take a break. Secretary Noem has made it clear that anyone who thinks they can come to America and hide behind the First Amendment to advocate for anti American and anti Semitic violence and terrorism, think again. This is after a decision that said those are not the facts here. With that, let's take a break. Come back and talk about Jeffrey Epstein and Ghislaine Maxwell. And briefly, we'll talk about the Fulton county search and what's going on there. Bubba Wallace here with Tyler Reddick. You know what's more nerve wracking than waiting for qualifying results? Waiting for the green flag to drop. Instead of pacing, we rev up with Chumba Casino's weekly new releases. It's like a fresh set of tires for your brain. Play for free@chumbacasino.com let's Chumba.
- [46:36]
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Andrew Weissmann
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- [47:19]
Mary McCord
Welcome back. So two things happened yesterday relevant to the Epstein files. One was this was the day that Ghislaine Maxwell was set to be deposed by Congress. This is something that Congress has been seeking since last summer, including Republicans in Congress who wanted to hear from Ghislaine Maxwell. There might be different motivations for different members of Congress to want to hear from Ghislaine Maxwell, but nevertheless, that was the date set. And I watched the recording of her in the detention facility explaining why she was asserting her fifth Amendment right not to incriminate herself. Despite the fact, mind you, she does have a right to do that, of course, but despite the fact that she has already been convicted of crimes related to the sex trafficking that Mr. Epstein was also involved in and is serving a 20 year sentence. So she's already been found guilty of that. And the second thing that happened was that members of Congress were given access to unredacted files, but they weren't entirely unredacted. There's all kinds of conditions on their review, which we can talk about. But I first want to start with Ghislaine Maxwell. It seems pretty clear from her attorney's statements that she would be perfectly willing to talk to Congress and perfectly willing to exonerate not only Donald Trump, but also Bill Clinton if Donald Trump would just give her clemency, give her a pardon. So what are your thoughts about this, Mr. Weissman?
- [48:45]
Andrew Weissmann
I'd be willing to say X if you do Y.
- [48:48]
Mary McCord
Exactly.
- [48:49]
Andrew Weissmann
It's pretty blatant. So first, I just want to say as somebody who's been a prosecutor for over 20 years and a defense lawyer for 10, there is nothing wrong with her asserting the Fifth Amendment and it is her absolute right. She does have a pending habeas. She would have potential exposure to state crimes. So I do not in any way think she should be denigrated. It doesn't matter how bad you think she is and the crimes she's been rightly convicted of. She has a fifth Amendment right to assert it's right to point out that she was perfectly happy to talk to Todd Blanche for two days, but she wouldn't talk to Congress. There's nothing wrong with talking about that. But her asserting the Fifth is allowed. Congress has a remedy. Mary, as you said, she is already serving 20 years. So what Congress could do, which you and I have done in the federal system, when you have somebody like this, is if somebody asserts the Fifth, as a prosecutor, you have a choice. You can immunize them. What that means is that her immunized testimony could not be used to prosecute her for new crimes. With an exception. Some people would be like, why would you immunize her? Well, you want her answers. You want her to have to answer questions about all the documents that the government now has disclosed. There are tons of questions that Todd Blanche did not ask her. Here's just like an example. Jeffrey Epstein is on a text message with her. They're admittedly sort of co conspirators. And he says, you know, the dog who hasn't barked is Donald Trump. And she doesn't say, what are you talking about? What would he know about anything? She says? And I'm just paraphrasing. I was thinking the same thing. So that seems like a really good area to talk about.
- [50:39]
Mary McCord
Of inquiry.
- [50:40]
Andrew Weissmann
Yes. So there are lots and lots of things about that that you could ask. And if you immunize her, she then has a number of choices. She can decide to come in and tell the truth. She can still refuse to testify, but that's a crime.
- [50:56]
Mary McCord
That's back to Stephen Bannon. Right. Contempt of Congress.
- [51:00]
Andrew Weissmann
If you are immunized and refused to testify, that is a crime. And that could be prosecuted for five years. That's a statute of limitations, meaning after Donald Trump is no longer a president. And she could also go in and lie. If she does that, she could also be prosecuted. That is where the one exception I said, if you immunize somebody and you go and lie, you can still be prosecuted and your testimony can be used to prove that you perjured yourself or you obstructed Congress. So if you really want her answers, Congress has the keys to the kingdom here to immunize her. And frankly, there's no downside. For the same reason they wanted her to testify. If that's what they want, they can do it and force her to actually testify. And they have ammunition to ask her those questions.
- [51:47]
Mary McCord
They do. And a little aside here, if people are thinking, well, like, I remember this thing with Ollie north where it became a big deal when Congress gave him immunity to testify about the Iran Contra scandal.
- [52:00]
Andrew Weissmann
We're dating ourselves. Yes.
- [52:02]
Mary McCord
How many dozens of years ago now is this? I know. And then that made it very impossible to prosecute Oliver North. And the reason is because with the immunity, you can't use what he said against him or anything derived from what he said against him. But the difference here, as we pointed out, is Ghislaine Maxwell has already been prosecuted. She's already serving 20 years. I mean, could we gild the lily and give her another five or another 10, maybe? But the government's interest in her being held responsible for her criminality, they have already satisfied that interest. She is already serving that time. And being immunized by Congress would do nothing to undermine her conviction or her sentence.
- [52:40]
Andrew Weissmann
And so that's a way of also saying, you know what you're saying. You want clemency to testify. I have another idea. You're immunized. We're not giving you clemency. Now testify. And you know what? There's no carrot to get you to testify. There's a stick to get you to testify, which is you testify. And if you don't, they're real consequences.
- [52:59]
Mary McCord
And you have to wonder, if Congress doesn't do that while she's out there pretty openly seeking a pardon and offering specific testimony for it, why then wouldn't Congress do that? Because they could avoid this. I mean, President Trump could still then decide he's going to give her a pardon even if Congress immunizes her. But why not try immunizing? Because then she cannot say, I would be so happy to talk with you, if only I didn't have to face any potential criminal liability.
- [53:25]
Andrew Weissmann
Right. And then also, the public gets a chance to assess her credibility, not just speculation. And so if she's going to credibly say, somebody's not involved, let's see it. But let's actually have some real questioning. And also, after all, she did sit down with Todd Blanche for two days.
- [53:44]
Mary McCord
Yeah. So we will see. But there are plenty of remedies here. And let's face it, if she were to get a pardon, I wouldn't believe a word out of her mouth, except maybe her name.
- [53:53]
Andrew Weissmann
I love it. I'm just gonna continue on the dating ourselves. I'm gonna go back even further. Mary McCarthy said about Lillian Hellman, I wouldn't believe anything out of her mouth, including and. And the.
- [54:07]
Mary McCord
That's really uncredible.
- [54:09]
Andrew Weissmann
That's a great line.
- [54:10]
Mary McCord
Okay, so how about the other piece of this? We've got 3 million new records that had been provided to Congress, but were full of redactions, except for not full of redactions when it came to identifying information about witnesses, including banking information. The stuff we talked about last week, it was very selective redactions. They've now supposedly provided these unredacted to members of Congress. The reporting was it had to be over at doj. They set up four computers, right? Four computers to use, and a very clunky system, a very difficult way of searching it. And at least according to Congressmember Raskin, it would take seven years for them to review all these documents. I don't know how he calculated that, but the point is huge volume only for computers. And then others, Representatives Massie and Khanna came out saying, we think we've identified six redacted names who we think might have criminal culpability. And these names are still redacted.
- [55:09]
Andrew Weissmann
And there are people who have been identified as people say are participants in the crime who've been redacted as victims. Now, to be fair, sometimes you can be sort of this nether category of being a victim and a perpetrator, in that you yourself were abused, but then you're sort of put into the position of recruiting other people to be abused in sex trafficking.
- [55:34]
Mary McCord
That's not uncommon.
- [55:35]
Andrew Weissmann
Exactly. So you can be in both categories. But I do think for doj, there is an issue about sort of how they should be treated, because the fact of the matter is, if that's the situation, they also have abused people, even though they may have extenuating circumstances to it. There is the issue that many, many documents, though apparently over 2, maybe 3 million, have not been produced at all. And so that is a violation of the Epstein Transparency act, of the congressional statute. We still also are waiting for that law requires that there be a list of what all the redactions are and any sort of grounds are for that that has not been provided. Third, Todd Blanche has said we're withholding things based on claims of privilege. Well, there's no claims of privilege allowed under the statute, so there's lots and lots of violations going on. And to put a fine point on it, it's very clear to me, and not just speculation on my part, that Donald Trump has got to be in some of those documents, because otherwise there would be no reason for the Trump administration not to say, just to be clear, even though we haven't turned over a couple million documents, even though we're claiming privileges, even though we've got some redactions, I want to make sure, you know, every single thing that has his name on it or any image of him has been released that has not been said. And if that's not been said, this is like just logic, which is the only reason that would happen is because you're withholding stuff on that basis. There's just much more to this story, and there obviously is going to be ongoing litigation. There are lots of people, by the way, other than Ghislaine Maxwell, who can be called to testify about what happened here. There are people who worked for Ghislaine Maxwell. There are people who worked for Jeffrey Epstein, many people who communicated with them. The people who seem the least likely to know anything substantively are Hillary Clinton, who by all accounts has no connection to him. And the oddity of calling President Clinton, which I find may backfire on Congress, is you really want to set the precedent of calling a president. Well, one of the things that I suspect Bill Clinton and Hillary Clinton might say is all for transparency. You think that senior people in the government have an obligation. You think it rises to the level of even people who are presidents. We agree.
- [58:06]
Mary McCord
Yes, that's right.
- [58:08]
Andrew Weissmann
Bring it on. So let's see who's got their name mentioned more than anyone.
- [58:14]
Mary McCord
That's right.
- [58:14]
Andrew Weissmann
And this is a president who famously did not testify in either of the impeachment proceedings. He didn't even submit a statement under oath or not under oath to Congress in either of those proceedings. He only publicly said what his defense is to the public, but not actually in the court that I'm using court sort of loosely, of the impeachment proceeding that was going on. So let's see if he be willing to do what Bill Clinton and Hillary Clinton are now about to do.
- [58:46]
Mary McCord
He won't. Spoiler alert. No, he won't.
- [58:48]
Andrew Weissmann
Mary, do you want to close this out with a sort of quick overview of what we can expect? Because there's some things going on as we speak in Fulton County.
- [58:57]
Mary McCord
Yes. So Fulton county and the Board of Registration and Elections have sought a return of all of the items that were seized pursuant to the search warrant last week, which that was all of the ballots and all of the tabulating materials and everything from 2020, from the 2020 election six years ago. The crimes that were alleged to be being investigated on the face of the search warrant, because we've not seen the affidavit in support of it, just the face of it, were crimes for which the statute of limitations is passed. We talked about these a little bit last week. And so they have petitioned for a return of these. Some of you may recall somebody else named Donald Trump seeking return of seized items from Mar a Lago after the search warrant executed there. And there was litigation about that. Before Judge Cannon. So this litigation is going to take place and is taking place before a U.S. district Court judge in Georgia. But meanwhile, while that gets briefed, and we will come back to that, the judge has ordered that the search warrant affidavit be filed, that the government by today file the search warrant affidavit subject to the redaction of names of non governmental witnesses. Other things in this case have already been unsealed. He's ordering that being filed so we may get the chance to see what the government based this request for a search warrant on and why the magistrate granted it. Because frankly, as those who are seeking the return of the evidence are saying, the election has been litigated many, many times and courts have completely disagreed with any assertions of election fraud. So there should not be any probable cause in that affidavit. And if it relies on things that have been completely debunked, then this was a big violation of constitutional rights. So lots more to come on that and we will probably have more to talk about about that next week.
- [60:49]
Andrew Weissmann
Exactly. That is why this is going to be a special episode that we're going to do. Thank you very much Mary. So nice to talk with you. Thanks everyone else for listening. And remember, you can subscribe to MSNow Premium on Apple Podcast and you can get this show and other MSNow Originals ad free and you'll also get subscriber only bonus content.
- [61:11]
Mary McCord
This podcast is produced by Vicki Virgolina with production support from Donnie Holloway. Our associate producers are Rana Shabazzi and our intern is Colette Holcomb. Greg Devins II and Hazik bin Ahmad Vered are our audio engineers. Katie Lau is our Senior Manager of Audio production and Aisha Turner is the executive producer for MSNow Audio.
- [61:45]
Andrew Weissmann
Foreign.
- [61:50]
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