Long established legal norms continue to be challenged by Trump’s Justice Department, leading Andrew and Mary to emphasize how the courts have grown increasingly frustrated with the administration’s tactics. They begin with last Thursday’s ruling from Judge Rodriguez in Texas, that Trump was unjustified in using the Alien Enemies Act to deport Venezuelan migrants. After a review of what that means for his ‘extraction’ efforts, Andrew and Mary go deep on an assessment made public from the National Intelligence Council, that indicates despite Trump’s presidential proclamation evoking the Alien Enemies Act, intelligence officials do not see a strong link between the Venezuelan government and Tren de Aragua. And lastly this week, they look at the latest judicial pushback on Trump’s attempts to threaten law firms, after Judge Beryl Howell ruled against his targeting of Perkins Coie by executive order.
Further reading: Here is the assessment from the National Intelligence Council on the relationship between the Maduro government and Tren de Aragua, courtesy of the New York Times.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hello, and welcome back to Main Justice. It is Tuesday morning, May 6. I’m Andrew Weissmann. I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. You’re sounding very, very chill this morning.
Andrew Weissmann: You know, it may be because I had a very dizzy morning, even though as you know, and I like to repeat, I’m an inveterate New Yorker.
Mary McCord: And I can see that you are in your apartment by the background on the screen.
Andrew Weissmann: Right.
Mary McCord: So I know you are not in D.C.
Andrew Weissmann: I’m not in D.C. any longer. I think our last time we were both in D.C., but not together. But later this week, --
Mary McCord: We will be together.
Andrew Weissmann: -- we were actually going to have a special broadcast where we will be not only in D.C., the same city, we will actually be together for that recording.
Mary McCord: Same room.
Andrew Weissmann: But the reason I think that maybe sounds chill is the reason I had a dizzy morning here in New York is I woke up at the crack of dawn.
Mary McCord: Yes. So, you’ve been up forever.
Andrew Weissmann: Which, you know, I’m still trying to find what time of day is my sweet spot because it’s not the morning, but I’m not really sure when it kicks in. And the older I get, the more I’m still searching. So.
Mary McCord: Yes.
Andrew Weissmann: That, --
Mary McCord: Okay.
Andrew Weissmann: Okay.
Mary McCord: Should we see what’s on our agenda?
Andrew Weissmann: So, maybe --
Mary McCord: Yes.
Andrew Weissmann: Do you think we should actually just do a --
Mary McCord: Do a podcast?
Andrew Weissmann: Start the podcast? We actually were trying to figure out how to sort of stuff everything --
Mary McCord: Yes.
Andrew Weissmann: -- into this show because there is a lot and there is breaking news from last night that we’re going to talk about and integrate into what we were already planning to do. So, with that teaser, Mary, what’s on our dance card?
Mary McCord: Right. So I know this is sort of a consistent theme, but we are going to come back and revisit what’s happening in the deportation cases. We have had the first actual substantive court ruling about whether the Alien Enemies Act applies here. Spoiler alert, the judge said, no, it does not. Applies is not the right term. Could it be used for the deportations --
Andrew Weissmann: Yes.
Mary McCord: -- of members of Tren de Aragua as originally pursuant to the proclamation the president issued?
Andrew Weissmann: By the way, I was thinking of changing my language on this.
Mary McCord: Okay.
Andrew Weissmann: Because deportation tends to suggest --
Mary McCord: Suggests there was a process. Yes.
Andrew Weissmann: -- that there was a process --
Mary McCord: Yes.
Andrew Weissmann: -- that it’s an immigration process, and it also suggests that you’re being deported back to your country.
Mary McCord: And released.
Andrew Weissmann: And released.
Mary McCord: And released.
Andrew Weissmann: Exactly. Remember, these people are going to jail, which could be --
Mary McCord: That’s right.
Andrew Weissmann: -- for the rest of their lives. So it looks very criminal. Because they’re being seized here without probable cause, without a hearing. They’re being put on a plane, taken to a foreign country, which is, I think, almost all of them, not their place of --
Mary McCord: Home country.
Andrew Weissmann: -- national origin. And then they’re in prison.
Mary McCord: Right.
Andrew Weissmann: With no curing date. So, I started to think of this as the extraction.
Mary McCord: Extraction.
Andrew Weissmann: Because --
Mary McCord: I mean, we’ve also used the term removal, but that also is an imitation term.
Andrew Weissmann: technical term.
Mary McCord: Yes.
Andrew Weissmann: Right. And it suggests a process that is if you remember, Judge Wilkinson, the conservative fourth circuit judge, --
Mary McCord: Fourth circuit.
Andrew Weissmann: -- when he issued his scathing decision, he called it stashing --
Mary McCord: Stashing. Yes.
Andrew Weissmann: -- these people in a foreign prison.
Mary McCord: And actually, this is something we’ll come back to because another thing that has happened since we spoke last week is we’ve had some really good investigative reporting by the Washington Post into that last 48 hours before the planes took off for Venezuela. But at any rate, we will talk about that first sort of substantive opinion and also what we just learned breaking news last night when the intelligence community, the National Intelligence Council declassified most, not everything, but most of its report assessing whether there really were ties between the Venezuelan government, the Maduro regime, and Tren de Aragua. And that’s important, of course, because Donald Trump’s proclamation invoking the Alien Enemies Act relies on basically saying that Tren de Aragua is being directed by the Maduro government, therefore qualifies sort of as a foreign nation.
So we will spend time with that. Then we are going to talk about a lengthy substantive opinion released on Friday by Judge Beryl Howell, the first full final opinion in the four different law firm cases where the law firms that were blacklisted by Donald Trump pushed back and filed suit. And we’ve said many times before that each one that filed suit got a hearing almost immediately, got a temporary restraining order almost immediately. But this is actually a final substantive ruling, ruling in favor of the law firms across the board.
And, you know, this, I think, in both of these areas, there is a bit of a theme here that has emerged in terms of a presumption of irregularity from the government in both these areas of the immigration related cases, the law firm cases, and frankly, in multiple other cases, you’re hearing judges get frustrated with the Department of Justice. You’re hearing judges comment about how can you be in front of me and not know the answers to the questions I’m asking. And that is not, what that does is that does undermine something that you and I argued for decades when we were in the Department of Justice is that the department is entitled to a presumption of regularity. That’s kind of going out the window.
Andrew Weissmann: I am reminded in listening to you about this idea of the presumption of irregularity, which is, in other words, changing the presumption that the government is entitled to usually under the law because of the repetitive nature in which the government has been found to have violated statutes and or constitutional provisions.
The First Amendment, the Fifth Amendment, the Sixth Amendment, the Alien Enemies Act, and a whole host of other statutes.
Mary McCord: Due process in general, right, across the board.
Andrew Weissmann: Just so many provisions and representations where the courts across the country have said, how can you say this or this is in contrast?
So let’s turn to the Judge Rodriguez case in Texas. As you noted, Mary, this is the first case to reach what I’ll call the merits of whether the Alien Enemies Act can be properly invoked. So some people who are listening are probably going, what are you talking about? I thought the Alien Enemies Act was at issue in the case before Judge Boasberg, the trial judge in D.C., or wasn’t this the case with the Supreme Court? All of those cases didn’t reach the actual merits of can the statute, can the Alien Enemies Act even be properly invoked? The issue of the Supreme Court, the nine-zero decision was that people should have a right to due process. That is to raise the issue about whether the law is properly invoked, whether this is the right statute in this situation. And even if it’s the right statute, is the person actually within the group of an, you know, an alien enemy --
Mary McCord: That’s right.
Andrew Weissmann: -- within the, in other words, are they just trying to extract Mary McCord and she’s entitled to go, what are you talking about? I’m not part of TDA and I’m entitled to a hearing to say that.
Mary McCord: And remember, this is exactly what the Supreme Court said, right? And actually said that even the government agrees that you’re entitled to this hearing and due process, but the court went further to say you’re also entitled to challenge the constitutionality of the statute and whether the statute can be applied here. What they indicated you might not be able to challenge is the decisions made by the president underlying the invocations of it. And decisions isn’t really the right word. The determinations made that there has been an invasion or predatory incursion by a foreign nation. But that gets a little sticky. So we’re going to pull that apart.
Andrew Weissmann: So one thing just to note is that although the Supreme Court has said nine-zero, that there’s this due process right, it’s worth noting that just yesterday, Stephen Miller on social media said the exact opposite of what the Supreme Court has determined, saying that the right of due process is to protect citizens from their government, not to protect foreign trespassers from removal. Due process guarantees the rights of criminal defendants facing prosecution, not an illegal alien facing deportation. But that is, that may be Stephen Miller, but that is not what the Supreme Court said.
Mary McCord: It’s not the law.
Andrew Weissmann: And what’s remarkable is this is a social media post after a nine to zero decision. So we have a due process decision by the Supreme Court. We have Stephen Miller saying the exact opposite, CEG constitutional crisis. We have other courts that have said the person in front of me who’s had a hearing is not actually part of the gang, so you can’t actually extract this person because you have not government approved this. But we now have a decision where the court is addressing the issue of, does the Alien Enemies Act even apply to TDA, to this gang, and --
Mary McCord: Or based on the facts alleged in the proclamations, asserted in the proclamation.
Andrew Weissmann: Exactly. And so to just give the backdrop before we get into how the judge dealt with this, people will recall that the Alien Enemies Act is triggered, and that’s a congressional statute, if there is a war with a foreign government or there is an invasion by the government or some proxy for that government, some group that is acting on its behalf in collaboration and at its behest.
Mary McCord: Well, just to be clear, --
Andrew Weissmann: And so, --
Mary McCord: -- the statute doesn’t say all that. The statute talks about a foreign nation. Right? And so the question that you’re raising is the question. But I think we would all probably agree that if there really was a proxy, that could be sufficient. And so to your point, the question is --
Andrew Weissmann: Yes.
Mary McCord: Is Tren de Aragua a proxy?
Andrew Weissmann: Right. So why the status of this gang and how it relates to the government is important is because the president’s proclamation is saying, look, we fit within this statute because there is a sufficient link between what appears to be a private criminal gang and the government. And so when you’re looking at a statute for is there a war or is there an invasion, the issue of the relationship of TDA to the Venezuelan government is critical for the statute to be invoked. Otherwise, it’s like saying, Mary McCord is invading our country on behalf of Venezuela. And it’s like, well, where is --
Mary McCord: So where that come from? Right.
Andrew Weissmann: Right. Exactly. I mean, there has to be some connective tissue. And so the court was looking at this issue of what did the actual proclamation from the president say, and that’s going to then turn to this new document that was released, which gets to the underlying assessment by the intelligence community about the relationship of the gang to the foreign government.
Mary McCord: Right. So that’s great build up. So let’s just start right with what the Supreme Court said. I’ve pulled it up so I can actually read it this time. Although judicial review under the Alien Enemies Act is limited, we have held that an individual subject to detention and removal under that statute is entitled to judicial review as to questions of interpretation and constitutionality of the act, as well as whether he or she is in fact an alien enemy 14 years of older. All right. So in comes Judge Rodriguez, he’s in the Southern District of Texas. He is handling a case brought after the Supreme Court said these all need to be in the form of habeas and not in the one case that had been brought in the District of Columbia on behalf of originally five plaintiffs turned into a putative class action of all those who were going to be deported under the authority of the Alien Enemies Act. That’s the one where the Supreme Court said, it’s got to be habeas in the place of detention. So that spurred a whole bunch of different detainees filing suits in different districts.
Three of the original plaintiffs in the first case, that’s where they were. And so they filed this case in front of Judge Rodriguez in the Southern District of Texas and also a putative class action based on anybody detained in the Southern District or who would in the future be detained in the Southern District and be slated for what is the word? Extraction?
Andrew Weissmann: Extraction.
Mary McCord: Extraction under the auspices of Alien Enemies Act. So that’s what Judge Rodriguez then had in front of him. And, you know, at least in his mind, consistent with what the Supreme Court have ruled, he basically said, I’m not going to look behind the curtain when it comes to second guessing the president’s factual proclamations in the proclamation invoking the Alien Enemies Act. He says the court determines whether the factual statements in the proclamation taken as true, describe an invasion or predatory incursion for purposes of the Alien Enemies Act.
So, he says, I’m going to accept those as true. Now I’m going to see, is that an invasion? Is that a predatory incursion? And I’m emphasizing that and you emphasize that because this new reporting as we’ll see in a few minutes really calls into question sort of the underlying factual basis in the proclamation. I mean, there’s a whole bunch of background in the proclamation that has all kinds of alleged facts in it. But the actual finding was that Tren de Aragua is undertaking hostile actions and conducting irregular warfare against the territory of the United States, both directly and, and here’s the key, at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.
Andrew Weissmann: Yes.
Mary McCord: So we’re saying --
Andrew Weissmann: That’s that connective tissue. Right?
Mary McCord: Right. Exactly.
Andrew Weissmann: What’s the connection?
Mary McCord: That’s right.
Andrew Weissmann: So, this is such an important part of the court’s decision in terms of how much he’s going to defer and how much he’s not going to defer to the president’s declarations or the proclamation here. And he says, the court concludes that a presidential declaration invoking the AEA, the Alien Enemies Act, must include sufficient factual statements or refer to other pronouncements that enable a court to determine whether the alleged conduct satisfies the conditions that support the invocation of the statute. The president cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of The United States, followed by the identification of the alien enemies subject to detention or removal, allowing the president to unilaterally define the conditions when he may invoke the AEA and then summarily declare that those conditions exist would remove all limitations to the executive branch’s authority under the AEA and would strip the courts of their traditional role of interpreting congressional statutes to determine whether a government official has exceeded the statute scope.
Mary McCord: Yes.
Andrew Weissmann: That’s the critical part.
Mary McCord: And yes, I have that highlighted.
Andrew Weissmann: Yes.
Mary McCord: Shocking.
Andrew Weissmann: So, right, birds of the same feather.
Mary McCord: So, okay, so that’s right. So, see, he’s saying, okay, on part one, I’m not going to look behind the factual findings, but I’m not going to then say your Mr. President’s decision that, okay, those factual findings support the proclamation that I’m not going to do, I’m going to look at those.
So that’s what he does. He examines these words, right? Invasion and predatory incursion, because we’re certainly not at a declared war with Venezuela. So that part of the statute doesn’t apply. And he looks at common dictionary definitions, he looks at historical definitions, he looks at the way it’s been used in the past. And notwithstanding that the government tried to argue that these words are much, much broader, He says these really have to do with sort of military invasions, organized, coordinated military invasions, and then ultimately concludes, and maybe what we need to do is say this and then take a break and come back and explain more about it, ultimately concludes that the facts in the proclamation don’t satisfy either invasion or predatory incursion.
And I’ll just read what he says about these. He says, the proclamation makes no reference to and in no manner suggests that a threat exists of an organized armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the proclamations language cannot be read as describing conduct that falls within the meaning of invasion for purposes of the AEA, the Alien Enemies Act. As for predatory incursion, the proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area with the purpose of plundering or destroying property and lives.
And these ways he’s describing what it should have described, if it was going to meet the definition are based on his review of sort of history and what those terms mean in their natural usage and what they meant more particularly when Congress enacted the statute.
Andrew Weissmann: This is a perfect, perfect place to take a break because when we come back, we’re going to talk about the new document that was made public last night that goes to the underlying facts on this very issue. I normally, I like, this is not just a teaser. Stay tuned.
Mary McCord: Yes.
Andrew Weissmann: This is important stuff.
Mary McCord: Good.
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Andrew Weissmann: So last night, a document was revealed, made public. It was the subject of some reporting at The New York Times before. This tends to prove up what The New York Times had accurately reported, even though after The Times reporting, the Department of Justice said it’s inaccurate. But now we have the document.
It is, as Mary alluded to at the start of our podcast, a National Intelligence Council document. It is dated April 7, 2025. So, it is dated during the Trump administration. The National Intelligence Council is part of the Director of National Intelligence. That’s an agency created post 9/11. It is headed by Tulsi Gabbard. It is several pages and it examines the ties between TDA and the Venezuela government.
So it is on this topic, the topic of the connectivity between whether the TDA is sort of an operation of and coordinating with and acting for the government, and even more importantly, is it engaged in an incursion or invasion of the United States such that it could form, this intelligence could form a predicate for the president’s proclamation and the things that have been said repeatedly in court by the Department of Justice to justify the president’s actions here.
And just to be clear, just to make it less intellectual and academic, the fact that there are people seized in this country based on the Alien Enemies Act and people who are now in a foreign prison, as we are recording this, whether they were mistakenly picked up in violation of a court order like Mr. Abrego Garcia, or whether or not mistakenly, they’re sitting in prison right now in a foreign country with the government using the AEA as the predicate, the legal justification. So, Mary, what was your take of what the document says and its import?
Mary McCord: It’s titled, Venezuela, colon, Examining Regime Ties to Tren de Aragua. And remember, the proclamation, the president said that he had found that TDA was undertaking these actions at the direction, clandestine or otherwise, of the Maduro regime. A subheading, it goes through sort of the history of Tren de Aragua, how it formed, how it’s now operates, has small cells in various places, and then comes through a subheading that says Maduro regime probably not directing Tren de Aragua activities. In other words, not that he is directing, but that he’s probably not directing.
But before we even dig into that, that then goes on for several paragraphs explaining why the intelligence community, and that means all of the different intelligence agencies, some with foreign intelligence authorities, some like the FBI that are primarily but not entirely domestic law enforcement authorities, the assessment of them all is that the Maduro regime, the actual official Venezuelan government is, I hate even saying official with When I talk about Maduro, but is probably not actually directing or cooperating with TDA.
But even before getting to that, if we go back, scroll up a little bit in the document, There’s some other things that I think are interesting too, because Donald Trump and his team at the Department of Justice and in National Security has repeatedly talked about the devastating criminal activities and serious criminal activities of members of this gang. And I do not doubt that this gang has engaged in some very, very serious crimes, including, you know, homicides and things like that in various places where it operates. But it is interesting that the intelligence community concludes that the small size of Tren de Aragua’s cells, meaning its various cells in different countries in the Caribbean and also in the United States and its focus on low-skill criminal activities and its decentralized structure make it highly unlikely that Tren de Aragua coordinates large volumes of human trafficking or migrant smuggling. Some of the very things that Stephen Miller and Donald Trump and others have accused.
Andrew Weissmann: Yes. Absolutely. It’s so funny. I had the exact same thing underlined. Things to note in terms of, and we will put the actual document in our show notes --
Mary McCord: Yes.
Andrew Weissmann: -- so that people can read it for themselves. You will see what Mary is talking about on pages one to two. The heading about the Maduro regime probably not directing TDA activities is on page two. It actually is an assessment of the intelligence community, and this part comes with no dissent. There is a slight dissent or slight different take by the FBI that we’re going to get to in a moment, but they say that the intelligence community assesses that Venezuela is not directing TDA movement to and operations in the United States, is not directing TDA movement to and operations in the United States. The I.C., the intelligence community, bases this judgment on Venezuelan law enforcement actions demonstrating the regime treats TDA as a threat, an uneasy mix of cooperation and confrontation rather than top-down directives characterizing the regime’s ties to other armed groups. And the decentralized makeup of TDA that would make such a relationship logistically challenging.
So, it goes on in that vein. It is worth noting that the FBI, it’s noted, which typically happens, not all agencies agree on all parts of an intelligence product. They do note that the FBI agrees with this assessment. That’s the exact phrase, but they do say that they think that some, and that’s italicized, some Venezuelan government officials facilitate TDA members’ migration from Venezuela to the United States and use members as proxies in various countries, including the United States, to advance what they see as Maduro’s regime’s goal of destabilizing governments and undermining public safety in these countries. To me, that is going to have to be the hook that the government uses. But by the way, the irony is rich and palpable that you’d have the Trump administration saying, no, no, no. I agree with the FBI’s --
Mary McCord: Right.
Andrew Weissmann: -- assessment, but see everything regarding January 6, where he wants to round up everyone who worked on those cases. But it’s really important to note that that is vastly different than what the government has been saying in court about a top down directive, as opposed to saying, there might be some officials, this is my vernacular, some officials who are corrupted, who are working with again.
Mary McCord: Yes. And in fact, there’s all kinds of motivations for that, right? Including, as the report goes on to say, that the persistent outflow of migrants from Venezuela probably offers opportunities for some regime officials in capacities to facilitate migration movement to look for and receive personal kickbacks for their services and to conceal the benefits they receive. So, the I.C. is assessing to the extent that people are coming here, they might be part of Tren de Aragua, and they might engage in some crimes here with some sort of support of some of the government officials. Some of this could be the result of frankly accepting financial benefits to assist in that. The other thing they make clear is that information suggesting ties, right, between the government and TDA. One of the concerns that the I.C. has is that some of this may come from unreliable sources that people who have been arrested in this country for committing crimes, who have some sort of tie to Tren de Aragua would be interviewed. As we all know, somebody gets arrested for a crime if they’re of interest to the government and the government thinks they might have some other information.
Think back to all of our prosecuting Donald Trump episodes, Andrew, where you and I would talk about cooperators, right? So oftentimes if somebody here is arrested, if the government thinks they might have useful information, they will engage in interviews and maybe even offer favorable treatment, right, for people who cooperate. So this intelligence community is assessing that to the extent that some information that might be alleging ties is coming from those who have been detained in the U.S. on criminal violations and interviewed by law enforcement, which would probably be the FBI, we have to have concerns about people’s motive to fabricate.
And that’s something we also talked a lot about when we covered the various trials last year and the year before involving Donald Trump’s civil and criminal, is that people, what is their motive to fabricate, their motive to lie in order to achieve a benefit for themselves? So, it’s not naming names, but the point is they’re exercising caution and urging others who are looking at this assessment to be cautious about it.
I will say, and you probably recognize this too, when you see a document like this, these are the kinds of intelligence documents that Andrew and I saw all the time when we were working in national security and the government. In fact, a big thick stack of these every morning, these intelligence assessments, and they’re used to help government policymakers and decision makers who are part of the national security apparatus involving all the departments of agencies who have a national security portfolio within their larger portfolio. This is the stuff that they use to make their recommendations to the president. These are discussed at that deputy’s committee level, that principal’s committee level, meaning the heads of agencies, and ultimately at National Security Council meetings where the president is the head of those meetings. You know, that’s how our leadership makes decisions.
So I emphasize that because, again, this document was after the proclamation. So, this document could not have been what, impacted President Trump’s decision making on the proclamation. But my understanding of the history of this is that there had been similar documents by the intelligence community before the proclamation. And then after some reporting about those that triggered cracking down on leaks and all of that kind of stuff that we’ve talked about in the past. The I.C. was asked to re up its reporting, I think in the hopes that it would support Donald Trump’s proclamation. And this is what we got, and it doesn’t support it.
Andrew Weissmann: So, this goes to the theme that we started with, which is the presumption of irregularity. And this kind of document is the kind of thing that just has to give judges pause. Is the government acting with candor in front of them?
Mary McCord: That’s right.
Andrew Weissmann: And you and I know you get a long way with judges by just being upfront with what the issues are. And if you make a mistake, you just tell them and own it and tell them how you’re going to fix it. Or if there’s a document or something with facts that don’t support your position, you raise it. You let the judge know, --
Mary McCord: That’s right.
Andrew Weissmann: -- and you tell them why it is not something that should be binding or how you see it, but you don’t hide the ball.
Mary McCord: Right.
Andrew Weissmann: Particularly when you’re in the government, your ultimate and primary obligation is to do justice. It’s not to get a result.
Mary McCord: It’s not to win. Right? It’s to do justice.
Andrew Weissmann: And so here, the government, I think, is going to be in the unenviable, but they asked for it, position of having to deal with this document and explain, a, why they’ve made statements in their filings that seem quite contradictory, and b, how it is that people are now sitting in jail based on the statute when the intelligence community has made findings that are not supportive of the position of invoking this. And these people were rushed out of the country without a due process hearing. This tells you why due process is so important, that the factual predicate for invoking the statute is now very much in doubt. You have a decision by a judge that was made before this document came out. Like that now you have this document that’s come out, and you have other decisions where judges are saying you can’t even prove that this person before me is in the gang.
Mary McCord: Yes.
Andrew Weissmann: So even if you did properly invoke the statute, I’m not seeing the proof that the people in front of me are actually in this gang, even if you could show that the gang was operating for Venezuela. So you put that all together, you really end up with the administration having to argue that, you know what? You, the courts, have no role.
Mary McCord: That’s right.
Andrew Weissmann: When we say it, you sign off on it. I mean, they’re going to really be pushed into that position, which is another way of saying, it’s not the unitary executive theory, it is the unitary theory. It is that there’s no Congress, we’re doing everything through executive order, we’re ignoring, as you pointed out last week, we’re ignoring the TikTok ban. This isn’t just one example. Congress is out of the picture. And here, they’re really going to be saying these issues, the courts are out of it because here, if you scratch just slightly below the surface on these factual issues, the actual facts are ones that the government has now repeatedly been losing. And I do think that it’s going to have an effect on the courts in terms of saying, you know what? You have lost the presumption of regularity.
Mary McCord: Yes.
Andrew Weissmann: To your point.
Mary McCord: The question is, will it then cause the courts and in particular the Supreme Court to maybe reach a different conclusion about whether they should give such total deference to the executive on certain national security related issues. Right? So that’s why this court, Rodriguez, following the Supreme Court said, I’m not going to look behind the curtain at the facts you’ve alleged. I’m going to take them as true and then decide whether it’s an invasion or predatory incursion.
Then you see this National Defense Council Intelligence Community Assessment, and you’re like, maybe we should be looking behind the curtain. So, reasonable minds can differ in terms of these assessments, but I do think it really exposes that, wow, it might not be such a good idea to just defer to the executive on some of these things.
And the other thing adding to this, but of course, this was not an intelligence community assessment, so this won’t be considered in the same way unless there’s evidence produced at court. But we did have some pretty significant reporting by the Washington Post last week that shows that at the same time that Secretary of State Rubio was talking with President Bukele of El Salvador about accepting Venezuelan detainees and alleged members of Tren de Aragua, that Richard Grenell was negotiating with Venezuelan authorities to take back their own citizens.
So remember you started this whole discussion out, Andrew, talking about normally when we deport people, we deport them to their home country and they are released there. If the home country wants to detain them under its own authorities or what have you, that’s not our issue, but we don’t make an arrangement for them to be in some sort of custody. And we know now that these things were happening at the same time and that Venezuela was prepared to send flights, at least according to this Washington Post reporting to pick up Venezuelan deportees. But instead, the decision was made to use the Alien Enemies Act and send those people to El Salvador to be imprisoned.
We also know that since then, since there’s been this basically a stoppage of deporting under Alien Enemies Act authority, given the court cases, we know that since then, the Venezuelan government has flown planes to, I believe Honduras to pick up plane loads of Venezuelans. I think the reporting is once a week to bring them back to Venezuela and that they were worried that they can’t fly their plane into the U.S. anymore to pick them up because of this Alien Enemies Act proclamation, their plane might get seized because it’s a Venezuelan plane.
Andrew Weissmann: Two quick points on that.
Mary McCord: Yes.
Andrew Weissmann: One, that reporting really corroborates something that Judge Boasberg found, which is this enormous rush --
Mary McCord: Yes.
Andrew Weissmann: -- to get people out of the country without due process.
Mary McCord: That’s right.
Andrew Weissmann: That there is nothing. If these people were even going to be detained under the Alien Enemies Act, there was nothing that prevented the government. Well, one, they obviously could have just used normal immigration processes, but they just didn’t want to give these people an opportunity to say I’m not in the gang or the statute doesn’t apply.
Mary McCord: That’s right.
Andrew Weissmann: They were rushing to get them out of the country. And so Judge Boasberg found that. The reporting that you talk about is dealing with this. And now we’re seeing a lot of reasons why without sort of factual predication. And that results in even if these people were in a gang, that they’re entitled to due process.
Mary McCord: Right.
Andrew Weissmann: This is directly contrary to what Stephen Miller said.
Mary McCord: Well, with that, shall we take another break and come back and switch gears to Judge Beryl Howell’s opinion on Friday?
Andrew Weissmann: Sounds good.
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Mary McCord: Welcome back. As we talked about at the top of the, I want to say hour because it probably will be an hour at the top of the episode, we have our first substantive ruling. Well, I shouldn’t say that because the others were substantive. We have our first final ruling in one of the blacklisted law firm cases.
Andrew Weissmann: Right.
Mary McCord: This is the first case brought because it was one of the earliest blacklisting executive orders against Perkins Coie. This one went to Judge Beryl Howell. She issued a temporary restraining order against certain parts of that blacklisting order, and listeners will recall that not only made it so that clients of the firms with government contracts were supposed to report those and those contracts would be terminated, security clearances stripped from the lawyers at those firms, access to government buildings taken away, access to even engaging with government officials taken away.
So it really was sort of a, that’s why we call it blacklisting. It really would make it impossible for them to actually perform their functions as lawyers on behalf of clients, particularly if those clients had any business at all with the federal government as many, many, many clients do. And so that had resulted in a temporary restraining order against portions of that executive order. It was followed in rapid succession by similar temporary restraining orders issued by Judge Leon, Judge Bates, and then ultimately a later one Judge AliKhan, all involving different law firms.
So those were all preliminary rulings as we’ve talked about based on a likelihood of success on the merits at the end of the day. So there were preliminary rulings. This is a final ruling because the fact is there are no facts in dispute here, and there was no reason that the judge couldn’t just go ahead and rule as a matter of law. And that’s what she did. And as I said before, the law firm, you know, ran the table in terms of success across the board on its claims. So tell us a little bit about those.
Andrew Weissmann: Sure. So this was a ruling that was certainly expected given that all of the judges, as you noted, have found the same thing within a New York minute of the cases being filed. Judge Howell issued a pidgin that’s over 100 pages. It is notable in several respects. First, it struck down everything.
Mary McCord: Yes.
Andrew Weissmann: The preliminary injunction was with respect to certain challenge components, but this struck down every single part of the executive order, including, for instance, the determination about security clearances.
Mary McCord: That’s right.
Andrew Weissmann: Which normally the president has a lot of authority, and the judge explains why here that sort of blunderbuss approach with no factual findings. Sound familiar?
Mary McCord: Yes. Totally sound familiar. Another theme here, no factual findings.
Andrew Weissmann: Exactly. Which is like, I’m not deferring. This is the presumption of irregularity.
Mary McCord: But on that one also in particular, she said, this was done as viewpoint retaliation violation of the First Amendment. And even if I have to give deference to the executive when it comes to who should get a security clearance and who shouldn’t here, everything just screams out that this is only about retaliation because other law firms that were threatened with similar blacklisting orders who entered into deals, right, with the government to provide millions and millions of dollars of pro bono services to the government. They then had those blacklisting orders, you know, either rescinded or never issued. So that shows you there was no determination that, oh, those people were worthy of their security clearances, but these other lawyers were not. This just shows you some were retaliated against, and some, if they entered a deal, were not going to be retaliated against.
Andrew Weissmann: Yes. So that goes to her principal rulings were about the First Amendment, which is doing this based on viewpoint and speech and who you represent and the cases you bring, --
Mary McCord: Yes.
Andrew Weissmann: -- sort of who your clients are. And so certain disfavored positions were retaliated against. So that’s sort of a First Amendment claim. There was also a Fifth Amendment and Sixth Amendment claim, although the whole thing to me very much grounded in sort of the First Amendment.
Mary McCord: Yes.
Andrew Weissmann: She talks a lot about the role of lawyers and how the role of lawyers are so important to the judicial system. She notes in footnote one that the right to counsel was included in the Bill of Rights in large part to avoid executive control of access to counsel, which could distort the administration of justice. I’m sort of leaving out the sub quotes, but that’s one of the things she says about the import of why counsel is important. And one of the things I thought was really good is she puts this in historical perspective in terms of what is happening. I thought we have used the term blacklisting. I think that’s so useful to be thinking about it in terms of the Joseph McCarthy era.
She is clearly very concerned about that. She goes back even further than the McCarthy era. She goes back to Shakespeare, to Henry the VI, which is the first thing we do. Let’s kill all the lawyers, which is said by one of the antiheroes in that play. But she said, here’s the twist. First thing we do is kill all the lawyers who I don’t like.
Mary McCord: That’s right.
Andrew Weissmann: And I thought one of the most poignant parts of the decision in terms of thinking about this in terms of our history was in a footnote where she is thinking about the law firms that are standing up and fighting and the law firms that have caved. And there, again, think about in the McCarthy era, the people who were complicit or the people who went along with the blacklisting versus the people who were blacklisted, who protested, who some of them were jailed, some of them couldn’t get work, some of them fled the country. And a lot of us think, oh, that wouldn’t happen now, or that wouldn’t be me. Or you see World War II movies and you think, oh, I wouldn’t be part of Vichy France. I wouldn’t be appeasing. I would be part of the resistance.
Well, we’re in that moment where there is a lot of that going on where people think that that wouldn’t happen. It is happening. And you do see people who are going along and keeping their head down, and she addresses that. And in footnote three, she says --
Mary McCord: And let’s just be clear. That footnote hangs off the very line you just mentioned, right? Where she says, --
Andrew Weissmann: Yes.
Mary McCord: -- in a cringe worthy twist on the theatrical phrase, let’s kill all the lawyers, the executive order takes the reproach of let’s kill the lawyers I don’t like, sending the clear message, lawyers must stick to the party line or else. Then she drops, you know, a great footnote, a very long footnote.
Andrew Weissmann: Yes. Yes. And I’m not going to read all of it, but she says this message has been heard and heeded by some targeted law firms as reflected in their choice after reportedly direct dealings with the current White House to agree to demand terms, perhaps viewing this choice as the best alternative for their clients and employees.
And you’re totally correct, Mary, that she used that in oral argument to say, you know, your concern, White House, about these law firms that you’re targeting, it seems to evaporate as soon as you’re willing to get pro bono money from them. Like these suddenly all of your concerns about their disloyalty and their national security concerns and all seem to evaporate as soon as they are, like, ponying up. So it really seems like an extortion racket.
But to her point about sort of how to think about this, she’s contrasting the way in which you respond to this kind of threat. And she says, and I’m going to quote, “if the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and by so doing serve to promote the rule of law will be the models lauded when this period of American history is written.”
Mary McCord: You know, that reminds me a little bit too of things that former Congresswoman Liz Cheney said as part of her role on the House Select Committee investigating January 6, that history would remember, right, those who turned against the country. Now, she’s not here talking about turning against the country, but, you know, those who stood up to this president and those who caved.
I think it’s important too that she was recognizing, as you’ve been talking about, the importance of lawyers. And we talked about this a few weeks ago, and this was actually the theme of an op-ed that I published, is that one of the reasons this is so important is without an adversary system, without lawyers on one side of a controversy, the very notion of being able to go have your day in court, be able to challenge the government in court if it’s taking something away from you, and also the ability to bring other legal cases, that whole search for the truth through the adversary process, one side makes its arguments and presents its facts, the other side makes its arguments and presents its facts, and therefore the judge is able to make decisions or a jury if it’s a jury case, that is completely thwarted if you’ve so intimidated and threatened and blacklisted lawyers who would take up the positions of opponents to the government that it threatens the very basis for our system.
And she quotes from an amicus brief that warns just about this. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But this safeguard against government overreach fails when attorneys cannot advance the undivided interests of their clients for fear of reprisal from the government.
So much in here. Also, she just had a lot to deal with, right? Because she had to go through every single provision of the executive order. She had to deal with the government’s arguments. She had to deal with the law firm’s arguments under multiple different constitutional amendments and ultimately found I agree with you, much is based in the First Amendment, but also found violations of due process under the Fifth Amendment and violations of the right to counsel on behalf of the clients who want to use these law firms under the Fifth and Sixth Amendment.
And to that point, it’s been reported that Microsoft, a pretty significant client to any law firm has dropped its counsel, at least for certain matters that had been one of the law firms that capitulated to Donald Trump and taken that business to another law firm Jenner & Block, which is one of the law firms that did not capitulate to Donald Trump that instead fought back and has gotten a TRO and will soon be getting a final ruling in that case too.
So to the extent that some people are thinking, well, we needed to capitulate to keep our clients, at least one major client, I’m sure there have been many more, but this one made headlines, has said, nope, we don’t want you anymore. We’ll go to somebody who has pushed back.
Andrew Weissmann: Yes, I think with respect to one matter, but --
Mary McCord: Yes, not everything. Exactly.
Andrew Weissmann: Yes.
Mary McCord: That’s right.
Andrew Weissmann: But it is notable because the reporting is with respect to it’s an existing matter where they were using a firm and so they just moved it. I was interested that it became public.
Mary McCord: Yes.
Andrew Weissmann: I’m not sure how it became public, but that’s really quite a statement of support. And it’s really voting with your pocketbook and sending a very different signal than the bet that the law firms that have capitulated are making. It really does remain to be seen how this plays out both in terms of personnel, the associates and partners there, the recruiting of associates and partners, and to your point, how sort of the business case shakes out as well, and the bets that’s going on.
But it all goes back very much to this footnote about who are you and how will you be judged by history? And you’re totally right. Liz Cheney has talked about that. Beryl Howell is talking about it. I like to think about it. I was a history major. I really do think that it’s one where it’s so easy to look back at different times in history and say, well, that wouldn’t be me. I wouldn’t be that person. I would be the person who was a part of the resistance in France. And to say and you look at the McCarthy era and you think, no, no, no, I would have supported the blacklisted directors and screenwriters who went to Washington to protest and were vilified.
And that is the situation we’re in now. And in so many ways, not in always, but in so many ways, the power of blacklisting comes from the fear and the capitulation. It’s like a run on the bank. And if you don’t engage in that, you take away, not everything, but you take a huge amount of the power away.
Mary McCord: That’s so true. And that just makes me think of the perfect sort of ending spot with a quote from Judge Lamberth because he --
Andrew Weissmann: So right. So right.
Mary McCord: Another place, we’re talking about sort of where are people going to be, where are business is going to be like, but within the three branches of government, there’s that time to take a position as well. And Judge Lamberth recently has issued a series of orders in cases involving the dismantling of Voice of America, Radio Free Asia, Radio Free Europe. And in a decision that he issued last week invalidating some of the efforts to dismantle Radio Free Europe, he ends with a quote from the Federalist papers and then his own statement.
He quotes from Federalist 51, the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department, the necessary constitutional means to resist encroachment of the others. He then goes on to explain that because he believes what the defendants were doing, dismantling Radio Free Europe and other networks under the Voice of America kind of like umbrella of networks, actions that he believed to be contrary to law, he’s humbly fulfilling his small part in this very constitutional paradigm, a framework that has propelled the United States to heights of greatness, liberty, and prosperity unparalleled in the history of the world for nearly 250 years. If our nation is to thrive for another 250 years, each co equal branch of government must be willing to courageously exert the authority entrusted to it by our founders.
This is a 1987 appointee of Judge Ronald Reagan, Judge Royce Lambert here in the District of Columbia, a senior judge. He has presided over, gosh, thousands probably at this point. Well, of course, thousands of cases. I was thinking trials, many, many, many, I think really, really strong words. Like it’s also time for us, judiciary and, hey, Congress, maybe you too, knock, knock. Hello? Is anybody home? Stand up for your constitutional powers.
Andrew Weissmann: Great ending, Mary. I will see you later this week in D.C. So, I look forward to that, and thanks everybody for listening.
Remember that you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free, And you’ll also get subscriber only bonus content like the one we’ve just been talking about, which will happen later this week and should be out on Friday for our premium listeners.
Mary McCord: That’s right. There’s so much to talk about later this week. We haven’t yet even gotten to the president’s threats to take away Harvard’s tax exempt status. We haven’t even talked about the threats to defund public broadcasting like PBS and NPR. Again, hint, maybe a little bit of a First Amendment retaliation issue going on there. We haven’t even talked about yet the filing yesterday where the government is actually continuing a position of the Biden administration and agreeing that the states who came in to challenge the FDA’s mifepristone regulations in Northern District of Texas, where none of those states are, we’re talking about Missouri and Kansas and one other one, I can’t even remember now. We haven’t even talked about that so that we have lots more to talk about on Thursday. And then again, next Tuesday.
This podcast is produced by Vicki Vergolina with production support from Max Jacobs. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes, and Aisha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: To send us a question, you can email us at mainjusticequestions. That’s mainjusticequestions@NBCUNI.com, and search for Main Justice wherever you get your podcasts and follow the series.
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