Andrew and Mary launch this week’s episode by digging into the details on some of the latest acts of retribution coming out of the Trump administration as Trump targets Harvard, the Jenner & Block law firm gets a decision and Rep. LaMonica McIver gets charged with assault. Afterwards, they review a preliminary decision from the Supreme Court to stay a DC District Court’s injunction that paused the firing of Gwynne Wilcox from the National Labor Relations Board, as well as Cathy Harris from the MSPB governing board while they challenge their removals. And lastly, Andrew and Mary get listeners up to speed on the O.C.G. case and the DOJ’s continued defiance of Judge Murphy‘s TRO regarding extractions of migrants to countries they have no ties to.
Further listening: HERE is a clip of Rep McIver responding to the charges against her.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back to Main Justice. It is Tuesday morning, May 27th. I’m Andrew Weissmann and I’m here with Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. I hope you had a nice weekend. It was a three-day weekend, which doesn’t really mean much these days except on paper, it’s a three-day weekend.
Andrew Weissmann: Yes, on paper it was a three-day weekend, although I have to say there were a number of things I read that were very poignant about Monday.
Mary McCord:Yes, always.
Andrew Weissmann: And it’s just a wonderful time to take stock.
Mary McCord: That’s right.
Andrew Weissmann: And to also give deep, deep, deep thanks to those people who put their lives on the line and gave up their lives for a lot.
Mary McCord: That’s right.
Andrew Weissmann:So that’s a pretty somber note.
Mary McCord:Yes, we’ve asked a lot of them for our whole history and we ask a lot of our service members now. So I hope that they had some rest yesterday. Yes, we have a lot, my goodness.
Andrew Weissmann:We do. And this is one where I was thinking that it’s like the old joke when we were in government and it was like Friday, it’s like, oh, it’s only two more working days until Monday.
Mary McCord:Right, exactly.
Oh gosh, yes. Okay.
Andrew Weissmann:So there’s such a lot to talk about. I was thinking about this. There’s a nice connective through line in a lot of the things we’re going to talk about. So, Mary, what are our three main topics? Although, can I just say, this reminds me of when you would speak, you’re told only pick three things. You’re supposed to say there are three things, but they include lots of subparts.
Mary McCord:I know, it’s really hard. Well, to your suggestion about a through line, I mean, it’s a through line that our listeners have been hearing about for, you know, many episodes now, but it continues. And that is the sort of retributive actions being taken by this administration. So we will talk about Harvard. We will talk about another one of the law firms that was blacklisted and has now won its actual permanent injunction. That’s Jenner & Block. And we will talk about, of course, also criminal charges brought against Congresswoman LaMonica McIver. These are all things that have a little of that through line of sort of retaliation.
We’re also going to talk about there was a pretty major decision by the Supreme Court last week, although it was on the emergency docket. So it is a preliminary decision. But I mean, that’s kind of the reason why it’s a little bit shocking, because it at least preliminarily would suggest that the court is going to overrule Humphrey’s Executor, which I think many of us had sort of expected, but not in a preliminary ruling. And that is the many, many, many decades old, I guess, coming, gosh, it’ll be 100 years and not that long, 15 years or so, precedent that a president may not remove a member from a multi-member board of an independent agency without cause.
Andrew Weissmann:This is one where it may sound like what Mary’s saying is kind of nerdy and we’re sort of getting in the weeds. But I want to basically tell everyone, hold tight. There’s a reason you should care about this. This is not us nerding out, although there is that component for those of you who like that. We will satisfy that itch. But this is one really there really is a reason to care about this.
Mary McCord:That’s right. Absolutely. And then finally, we will continue to update folks on some of the extraction cases that we’ve been talking about, particularly, the case in front of Judge Murphy, which we talked about last week, where he has had a temporary restraining order and actually a preliminary injunction for some time now, barring the removal of people who can be removed from the country, but barring removing them to third countries, countries that are not where they were born without giving them adequate notice and an opportunity to challenge that placement. Because some of the places, and here, of course, where this rose up last week was with respect to South Sudan for one group of those who were extracted and for another person, it was to Mexico when he had already expressed fear of going to Mexico.
So that saga continues with the judge getting frustrated with the government that he has ruled multiple times that he needs to provide people an opportunity to make a case if they think the place they’re going to be set to is a place where they might face abuse, torture, et cetera And the government has not been abiding by that.
So that is where we will get to if we stay on track today. So should we start last week?
Andrew Weissmann:So should we talk about Harvard?
I think everyone who’s listening to this knows that there is sort of ongoing steps taken by the executive, the White House, the Department of Homeland Security. There’s various steps that have been taken to withdraw funding, withdraw contracts, letters that have been sent, an issue of taking away the ability to have international students and visitor exchanges. I mean, an enormous array of things, by the way, but see the administration just a minute and 32 seconds ago saying, oh, this was a mistake. Obviously, it was not a mistake. That storyline is by the wayside. There was no mistake. This is they’re doubling down and tripling down and quadrupling down.
Mary McCord:Just so people understand, though, that mistake issue was not with respect to what happened last week. Right? Last week was the abrupt cancellation of Harvard’s more than 70 years of participation in the student and exchange visitor program, SEVP, which, you know, people, if they’re reading about it in the press, they’ll see that SEVP. That’s a program by which international students can obtain F1 visas and other graduate students and people pursuing research at universities under the exchange program. Part of that can obtain J1 visas to be here in the United States, going to Harvard, doing research at Harvard, et cetera. And for Harvard, I believe that’s something like 7,000 people and abruptly pulled.
Andrew Weissmann:Yes. For many, many universities, this is a major part of their educational mission. It also is a huge financial component in terms of their students, you know, pay various amounts depending on financial aid and need. So there’s huge financial consequences. But it’s also part of who they are, as Harvard said in their papers when they got a temporary restraining order with respect to this. They said, you know, Harvard, without its international students, would not be Harvard.
I was on with Nicole Wallace when she had a Harvard lecture on, and I thought a good place to start was for me to channel a little bit to make sure people understand this is not, in case somebody’s looking at this and going, gee, why should we educate foreigners? Why that is myopic, even, even if you want to look at it just from the point of view of the United States interests, and even putting aside just financial interests that it’s a source of income. In the same way that a business would sell something to somebody overseas, you would never say, gee, that’s terrible. I mean, so in some ways, this is an educational product, but it is so much more than that. When you think about the advances in the sciences, in the arts, if you think about American diplomacy, sort of the soft power of having people go back and become political leaders, business leaders, arts leaders, who have come to the United States and seen it at its best, at its absolute best, and been trained here. And the examples that Harvard gives just go up one side and down the other as to why this is so important to who we are in so many different fields.
So I just think that’s a good way to start. Like, why should we care? Even if you put aside all of the legalities, you just think about why this is such bad policy. But Mary, I wanted to raise with you two things that stood out to me in the Homeland Security, both the demand to Harvard and what I call the cover tweet from Kristi Noem.
Mary McCord:Should we back up just a bit to make sure everybody’s tracking on how this developed last week?
Andrew Weissmann:Oh, yes, sure. Absolutely. Good idea.
Mary McCord:So as folks know, because you said it well in the intro, right, we’ve already had an ongoing back and forth of the government really trying to demand that Harvard really changed very dramatically its entire sort of academic programming with the government being involved in who could be faculty members, what programs they could offer to students, what students would be admitted into programs because of this claimed antisemitism on campus.
And Harvard has said, look, we realize after the start of the Israel-Gaza war that we could do better, right, in terms of combating antisemitism on campus. And we’ve done various things. But that’s been sort of the cover, to get to your sort of cover story point that the government has been using, DHS and the president, in particular, to go after Harvard. Harvard pushed back, as you said, the government then took away federal funding. And then the government started asking, and they have authority under this student exchange visitor program, certainly, there is authority to ask for certain records regarding the student body that is coming in under these visas. But they ask a number of questions of Harvard that, at least according to Harvard, far exceed the scope of the records that they are obligated by law to provide to the government.
They pushed back. There was a series of sort of letters back and forth between I think the Harvard president and Secretary Noem or her designee about this. And at one point a few weeks ago, DHS said, if you don’t answer these requests fully, we will deem that that you are voluntarily taking yourself out of the student and exchange visitor program. Harvard said, no, no, no, no, no. We’re going to give you the information we believe we’re obligated to give you under law. But anything else we don’t give you is not a voluntary withdrawal from the program. And if you were to say otherwise, we’re making clear right now it’s it would be involuntary and we would seek the opportunity to be able to be heard about that. And instead, the response was, we’re revoking your participation in this program.
That happened on the 22nd of May. The 23rd Harvard filed a lawsuit. And I believe within just a couple of hours. Right, Andrew?
Andrew Weissmann:I’d say a New York minute. But here why don’t we say a Boston minute?
Mary McCord:Yes, that’s right. A judge there issued a temporary restraining order while she gets further briefing on that. And one of the things that Harvard had said in its lawsuit is, you know, it made various claims. First Amendment retaliation, First Amendment viewpoint discrimination, conditioning its participation in this program on it giving up its academic freedom, due process violations, arbitrary and capricious violations of the administrative procedure. So lots and lots of claims. At its heart, these are mostly First Amendment based and due process based claims. And last thing I’ll say between turning back to you, one of the things that Harvard recounted in its lawsuit is the words of DHS’s revocation letter and says DHS’s revocation letter leaves no doubt that the revocation is part of DHS’s campaign to coerce Harvard into surrendering its First Amendment rights.
The letter declares, quote, “Consequences must follow to send a clear signal to Harvard and all universities that want to enjoy the privilege of enrolling foreign students that the Trump administration will enforce the law and root out the evils of anti-Americanism and anti-Semitism in society and campuses” end quote. And then Harvard says, or put another way, because the administration perceives that members of Harvard’s community have the wrong viewpoints, Harvard will be punished until it alters its viewpoints to satisfy the administration’s demands.
Andrew Weissmann:So I thought I was not surprised that there was a temporary restraining order. It was particularly compelling on all of the due process procedural violations. And Harvard, as you would expect from Harvard, cites the Department of Homeland Security’s own internal regulations as to what they’ve committed to, including what’s on their website about exactly what needs to be done. And they talk about the history of this program and how they’ve complied in every jot and tittle with the history of this program.
But the core of it is, as you noted, Mary, is this First Amendment issue. And your quote is exactly what I wanted to turn to, because if you think about this, there’s a line in there which I want to make sure everyone understands. “Anti-American.” Anti-American, what the hell is that? What the hell is that? I’m not anti-American. I love this country. I support it. I am proud to be an American. That doesn’t mean I always agree with everything it’s done. But it is not the government’s business to be taking actions because it thinks somebody is anti-American. That is pure viewpoint discrimination. And the other place where you see that is in that sort of that slip of the tongue that tells you this is what’s going on, that it’s a First Amendment issue, is in the categories of information that the Department of Homeland Security has demanded.
And it is true that Harvard says that so much of this is not required under their regulations. But the sixth category is they want to know, chapter and verse, audio, documents with respect to any protest activity, any demonstrations, just to be clear, any First Amendment protected activity by these students.
They don’t say we want to know about violent protests or illegal protests.
Mary McCord:Well, they have that in there, too. They have that in there, too.
Andrew Weissmann:But that’s not category six. Category six is not we want to know about violence. It is not about illegal activity. It is we just want to know about protests. That is, let’s just to put it in legal terms, overbroad. But it’s overbroad in an area which is protected by the First Amendment.
And to me, those two things that were such a tell as to what is going on here. And it is it’s no place for any administration, Republican or Democratic. This is not a partisan issue. This is like this is not what the government’s supposed to be doing. And it was I won’t say shocking anymore, but it was really just on its face. You could see it. This is like the court doesn’t need to do a lot of I wonder what’s going on here.
Mary McCord:Right. Well, and you know, that’s so much like what we saw in Judge Bates’ opinion on issuing the permanent injunction against the blacklisting of Jenner & Block. I mean, the same exact type of approach. And in fact, if you read the beginning of his memorandum opinion, I think it’s 50 something pages long. And look how familiar this sounds. This case arises from one of a series of executive orders targeting law firms that in one way or another did not bow to the current presidential administration’s political orthodoxy.
Like the others in the series, this order, which takes aim at the global law firm Jenner & Block, makes no bones about why it chose its target. It picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed.
Same thing, we don’t have to. It’s not veiled. Right? It’s just right there on the face. And Judge Bates in issuing this permanent injunction against again, the blacklisting we’ve talked about before and we can dive into it a little bit more also makes clear a couple of things. This isn’t just the administration trying to what, he uses the term “muzzle” law firms going forward. It’s not just that that violates the first amendments central command that the government may not use the power of the state to punish or suppress disfavored expression. But he says more subtle, but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government imposed orthodoxy.
This letter, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the executive branch from the judicial check fundamental to the separation of powers. It thus violates the constitution and the court will enjoin its operation in full.
So with Harvard, you’ve got again, this pressure that’s not just on Harvard, but it’s to try to bring all these universities to heel. Same here with what Judge Bates is saying with respect to the blacklisting of law firms. It isn’t just about Jenner & Block. Clearly their rights were violated, and clearly now they’re successfully obtained a permanent injunction against the operation of that executive order against them. But it’s really sending this message.
Andrew Weissmann:Absolutely. And do you want to just briefly mention who Judge Bates is, which unfortunately we now need to do just because, you know, he will, of course, be attacked as so many of these judges are, just to make sure people understand he’s no sort of left wing firebrand.
Mary McCord:That’s right. So Judge Bates has been on the bench for quite some time. The District of Columbia District Court, he was a Republican appointee. He is one of several judges handling the different cases against different law firms. Just a couple of weeks before this, Judge Beryl Howell, a Democratic appointee, also issued a permanent injunction. And this one was regarding the blacklisting of Perkins Coie. There is also pending motions in where TROs have been granted, but not yet permanent relief. And that is with respect to WilmerHale and also Susman Godfrey. And again, judges across Republican appointees and Democratic appointees have immediately issued emergency relief. And now we’re starting to see this permanent relief come into play.
And I would say, in many ways, Judge Bates’s language in this opinion is some of the strongest I’ve seen by a judge.
Andrew Weissmann:Certainly. So I just want to make sure I flag something, which is when you referenced that Jenner had, one of the reasons it was retaliated against was because of an attorney that had previously hired. I want to make sure people know that’s me.
Mary McCord:Yes, that’s you.
Andrew Weissmann:I was actually named in the executive order. I’ve already talked about why I’ve been silent about this while it was in litigation. And so that the judge and the parties could just litigate this. And so, that’s why, Mary, I really want, it’s good that you’ve been taking the lead. But here, I do want to note, and I’m just going to read from it without a lot of comment, because it really goes to the first moment of activity, because the judge addresses the sort of grounds saying that none of these grounds pass muster under the First Amendment, that you, the administration, don’t like that Jenner represented people seeking asylum, that that’s not a lawful ground, that you represented people who are in the trans community. That’s not a lawful ground. That is advocacy that is protected by the First Amendment activity.
The court goes on to note, by the way, that Jenner was successful in both of those cases. And then it says with respect to me, and I’m just going to quote it without comment, “As for Jenner’s employment of Weissmann, it is evidently Weissmann’s criticism of the president and participation in a legitimate investigation of election interference that drew presidential disdain. And it is Jenner’s erstwhile association with Weissmann that extended that disdain to the firm. But Weissmann’s activity falls easily within the First Amendment’s muscular protection for criticism of government and public officials” citing New York Times v. Sullivan. “And that criticism can no more bring Jenner into the administration’s crosshairs than it can bring Weissmann himself into the administration’s crosshairs.”
Mary McCord:And that investigation, by the way, was the Mueller investigation, for those, anybody who doesn’t realize what Judge Bates was talking about, which he makes clear in his opinion.
Two last points about the opinion is, one, he had special emphasis on the importance of lawyer’s speech, even separate and apart from other First Amendment rights, because lawyers, and we talked about this several weeks ago when these blacklisting orders first came out, and this was actually a subject of an op-ed I wrote in The Washington Post at the time, which is that the judges are recognizing if lawyers are too cowed from representing clients in court, then there isn’t going to be one half of the adversary process. The judges rely on each party in front of them to have a lawyer to advocate their views so that the judges can make the best decisions and so that there’s some independence there, right, from just whatever the government wants. And that is especially harmed.
Andrew Weissmann:Can I just point out there that the number of firms that have caved, that’s one of the real harms there, is that the Paul Weisses of the world, the Lathams, the Sullivan & Cromwells, they’re called on routinely to work with NGOs on various projects. And I’m sure they and other firms are thinking not just once, but twice, three times, four times before they do that. And just to be clear, just to beat a dead horse on this, these are private actors. They’re entitled to be as partisan as they want to be.
Mary McCord:That’s right.
Andrew Weissmann:This is -- they do not have to be even in--
Mary McCord:They’re private law firms.
Andrew Weissmann:That’s right.
Mary McCord:The second remarkable thing, and this was also the case with respect to Judge Beryl Howell and her permanent injunction, is back at the time of the temporary restraining orders, the judges did not enjoin Section 2, which pulled the security clearances of the lawyers at these firms. They held off on that. And I think in most cases, the law firms didn’t even ask for temporary restraining orders on that piece of it.
Andrew Weissmann:That’s right.
Mary McCord:Not because they thought it was valid, but because they recognized, look, it’s a more difficult thing to get involved with ordering the government to do something with respect to a security clearance because the government does get so much deference on issues of national security and who it’s going to give security clearances to. And in fact, sometimes denials of security clearances can be based in some ways on speech, but it would not be retaliation for speech. It would be let’s just assume certain speech that might favor certain adversaries or something like that. You can imagine speech favoring Vladimir Putin or somebody like this where the government would think, well, that’s not the person we want to give a security clearance to.
But here the difference was, in both Judge Howell and Judge Bates, did enjoin the provision that took away security clearance because as Judge Bates said, and he examined this very carefully, he said, “Even though the merits of any individual security clearance decision is unreviewable, courts may hear constitutional claims arising from the clearance revocation process.” And here he said, this was not individual. We’re making decisions about different people at the law firms. This was just a blanket. We’re taking away your security clearances. The judge found that was in violation, in retaliation for the firm’s overall exercise, right, of their First Amendment rights. And that is something that the judge could review and could enjoin the government from doing.
And he even contrasted this with Paul Weiss to say, one reason we know these were not individualized terminations is because Paul Weiss, as soon as they agreed to provide $40 million worth of pro bono services and do other things, they’re like, okay, you can have your security clearances back.
Andrew Weissmann:It vanished. It all vanished. Beryl Howell had made the same point.
By the way, kudos to Paul Clement because he represents Wilmer, and he is the one lawyer who actually was making this argument, the same argument you just articulated at the TRO phase. But you can see the judges, and now you have two judges, knocking the whole thing down. So this is soup to nuts, the whole thing. To quote Judge Bates in his order that was issued pursuant to his opinion, it is quote, “null and void.” end quote.
Mary McCord:That’s right.
Andrew Weissmann:So, Mary, why don’t we take a quick break and then come back and do the last piece of this, which is the charging of a member of Congress?
Let me give a spoiler alert in terms of how I think about it. Member of Congress, member of the judiciary in Wisconsin. I view this as very linked. But let’s take a break, come back and talk about it.
Mary McCord:Sounds good.
(BREAK)
Mary McCord:Welcome back.
Well, as we said just before the break, we do want to talk about charges that were filed on May 19th against Representative McIver. She is a New Jersey congresswoman who was present at the Delaney Detention Center in New Jersey. What day was that? May 9th. When members of Congress were there to conduct their oversight, to which they are entitled to do, to go visit a DHS ICE detention center. And this is also the same detention center where the mayor of Newark was arrested for trespassing. Interestingly enough, these charges against the congresswoman were previewed when the announcement was made, I think by Attorney General Pam Bondi, that they would be dismissing the charges against the Newark mayor with some kind of line I have right in front of me about like to get this behind us, but would be charging Congresswoman McIver with assault. And that is where we are. Two counts, misdemeanors, that means they can be done by a affidavit of a law enforcement officer. In this case, it’s a DHS officer. They can be charged without a grand jury to have to indict.
Andrew Weissmann:Because it’s a misdemeanor.
Mary McCord:That can happen with misdemeanors. That’s right. Two counts.
Andrew Weissmann:So by the way, this is the case where they actually arrested and detained is a mayor.
Mary McCord:That’s right.
Andrew Weissmann:So, like, so talk about--
Mary McCord:Handcuffed him.
Andrew Weissmann:Then they proceed. Right, exactly. And by the way, I was on air when a member of Congress who was there that day said, wait a second, he was invited in and then he was told to leave and he left. And then they charged him with trespass. If that’s true, if that’s true, that’s not trespass. So you talk about sort of an overreaction. I mean, this is not an administration and goes, oh, let’s let bygones be bygones when they go ahead and charge a member of Congress. Look, we do not know exactly what happened, although there is a lot of videotape. But it certainly seems de minimis. I think one of the things people don’t understand about prosecutors, prosecutorial discretion is so important because there are two important decisions. One is, can you charge? Meaning, can you prove a case? Do you have proof beyond a reasonable doubt? Have you established that each of the elements would you be able to carry the day at a trial? The second and some ways more important is should you charge?
Mary McCord:That’s right.
Andrew Weissmann:That’s where the issue is here. And that’s why I see it so similar to the idea of arresting the judge in Wisconsin. I mean, the fact that they arrested the judge tells you sort of everything about the abuse of prosecutorial discretion. Like, even if you thought it was okay to bring that case, why wouldn’t you just give her a notice?
Mary McCord:That’s right. A summons, right? A piece of paper.
Andrew Weissmann:Exactly.
Mary McCord:Come into court, turn yourself in, that kind of thing, which is what normally happens when you’re not talking about pursuing a violent felon.
Andrew Weissmann:Exactly. Having been in these conversations, it’s so striking to me because you would be in the room at the Department of Justice where, of course, you’d be going, well, of course, we’re not going to do an arrest. We will issue a summons precisely because there’s zero issue of risk of flight or danger to the community. By the way, we’re seeing the same thing happen in the immigration context with, like, let’s take the Tufts graduate student where the judge releases her because there was just no reason to have arrested her for not for weeks.
Mary McCord:Right.
Andrew Weissmann:Where she was detained.
Mary McCord:Now, Congresswoman McIver was not arrested or taken into detention. She was charged, you know, via papers and will appear in court, et cetera, and defend herself. But the pattern still is this case is so interesting because of the way this unfolded. And as you say, it does not take a lot, actually, to charge somebody with a simple assault. Right? Physically putting hands on another person can be that. And there are certainly videos which we had not seen. Like when the mayor was originally arrested, I hadn’t seen some of the type of videos that are now part of the record. And there are still those from those videos that were actually included in the charging document purportedly showing contact between the congresswoman and police HSI, also Homeland Security Investigations, ICE, DHS. People are like this is acronym crazy. There are a bunch of sort of police officer type people who are part of the Department of Homeland Security.
So what’s interesting here, though, is what you do see in these is there’s something of a scrum. There’s a lot of people. There’s a lot of agents. There’s a lot of other people kind of doing a pushing and shoving. And so, those are the things that if you’re a prosecutor and you’re thinking, gosh, can I charge an assault here? You’re going to be very concerned that there’s so much pushing and shoving. It’s hard to tell who is actually at fault and who is just sort of responding to somebody else. And a lot of times these are things we used to call when I was a very, very junior prosecutor doing misdemeanors, like crisscross. Right? Like you don’t know who’s really responsible because it’s coming from everyone.
So we’ll see. I’m not going to try to, you know, foretell sort of how this will end on the merits. But the process here is concerning just given how this all unfolded and how this decision was made to bring these charges. And as you said, that exercise of prosecutorial discretion and to hearken back on our theme from several weeks ago, hypocrisy. Can you say hypocrisy? I mean, some of the press statements coming out and those in government officials suggesting that this had to be done because this was endangering our law enforcement officers and endangering their safety. Come on.
Andrew Weissmann:Mary, what do you think of J6? Are you thinking January 6th? So January 6th, those people are pardoned and those are supposed to be national heroes. And this is at most--
Mary McCord: People who attack law enforcement.
Andrew Weissmann:Right. And this at most, let’s assume she’s guilty of this. This at most is like you’re pushing and shoving where lots of people are being pushed and shoved. And I’m sure it’s coming in both directions, as you said, crisscross. The idea that this is being charged and you have statements that are like, well, we obviously have to protect law enforcement from being attacked. You’re like, really? Really? Okay, Mary.
Mary McCord:Okay.
Andrew Weissmann:Okay, should we talk about Wilcox?
Mary McCord:Yes.
Andrew Weissmann:Wilcox is the Supreme Court case. And I’m going to turn it to you. This is two individuals. You have somebody who was a member of the National Labor Relations Board and another person who is a member of the Merit System Protection Board, two agencies that were created and multi-member agencies. And they said that they were improperly removed. They were removed not for cause. And everybody agrees that there was no cause. And Congress had created a statute saying people should be removed for cause. It’s really sort of this constitutional issue of is that statute something that is itself unconstitutional? In other words, that the president doesn’t need to give cause. The president can just remove people.
And that case is one where the two individuals had won below and they had won below because of the old Supreme Court case.
Mary McCord:Binding, binding Supreme Court--
Andrew Weissmann:Exactly. And so, there are lower courts. And so, they follow the binding precedent of a case called Humphrey’s Executor. It’s a great name.
Mary McCord:Yes.
Andrew Weissmann:And so, this goes up to the court in this context of the government saying, no, you should allow us to remove them and don’t reinstate them. And it’s on this, as you said, sort of this emergency docket, which otherwise has been called the shadow docket. And normally the court doesn’t decide big, big issues in that context because they don’t have sort of full briefing and full argument. So, Mary, what did the court do? Maybe more importantly, why should our audience care?
Mary McCord:Yes. And this is something we did talk about some time ago, right? Humphrey’s Executor, which has been on the books since either 1939 or 1937,long, long time.
Andrew Weissmann:1935.
Mary McCord:1935. Okay. I’m in the 1930s.
Andrew Weissmann:You know what, Mary? Close enough.
Mary McCord:Close enough. Close enough. Obviously, on the books a very, very long time. This is one that the federal government had said, after Trump became president, the Solicitor General of the United States had given notice to Congress that it was no longer going to defend Humphrey’s Executor. It was not going to defend statutes that tried to create independent agencies with bipartisan, multi-member boards. And this is something that, again, Congress enacted not only with respect to the NLRB or the MSPB, but also the Federal Reserve, the FTC, other agencies. In fact, FTC was the agency at issue in Humphrey’s Executor.
And what the Supreme Court has said in the past is that these multi-member, bipartisan boards are different. We understand Article 2 of the Constitution gives the president the power to remove without cause executive officers who exercise power on his behalf. But one of the exceptions to that, the exception created by Humphrey’s Executor, was this multi-member, bipartisan board where it said there what Congress is doing is they’re creating agencies to be independent from the executive, to exercise quasi-legislative and judicial powers so that they’re not the kind of agencies where the president can just dismiss people and fire people without reason.
So they build in, you have to have reasons, which usually involve things like malfeasance, right? Like things that are significant.
Andrew Weissmann:For cause.
Mary McCord:For cause. That’s right.
So here, I think what’s surprising about this, like we knew the writing’s been on the wall for the last several years as the Supreme Court has sort of expanded executive power to fire without cause. And they have held that single agency heads even when Congress wanted it to be an independent agency and wanted to insulate the single agency head from political firings. The court has held single agency heads can be fired by the president without cause. He’s got that executive authority over executive branch officers. They’ve always carved out multi-member agency boards. And even though we could see that this was narrowing. What I think was shocking here is a couple of things. This was done in a two-page per curiam decision. Now there is a multi-page, eight-page dissent by Justice Kagan joined by Justice Jackson, and Justice Sotomayor. But this essential overruling is done in two pages. And the reason I say essential overruling is, you made the point, Andrew, and we made it up at the top of the episode, that this is just a preliminary ruling. So it’s not a final ruling. And the court acknowledges that.
But when you decide to stay the lower court’s order who said, then the lower court said, no, government, you’ve got to let these people stay in their positions pending full briefing on this. When the court reverses that, they’re putting their thumb on the scale. And they even say so. The stay reflects our judgment that the government is likely to show that both the NLRB and the MSPB exercise considerable executive power.
Therefore, we’re saying the government is likely to win here. And because the government is likely to win here, we’re not going to finally decide that. We’re going to do the final decision after full briefing and argument. But because the government’s likely to win, and in their view, the harm to the government was greater from allowing an officer the president wanted to remove to continue exercising executive power. That was a greater harm to the government than the harm that the officer removed would have.
Andrew Weissmann:Can I point on that, which is, I just want to make sure people understand in weighing those equities, the way that the majority, the super curium weighed it was to say the president’s power to be able to remove people he doesn’t want versus these two individuals who kind of think to quote Justice Kagan and sort of like think it would be nifty to continue doing their job. That’s how they describe the tension here. The president’s awesome power to control the executive branch versus somebody wants to do their job like they want to show up at work one day.
And Justice Kagan, her dissent is so good. She’s like, that’s not the other side. The other side is Congress’s power to create a bipartisan commission, see e.g, the Federal Reserve, which I know we’re going to talk about in two seconds. But it’s like that’s the other side of the equation. It’s not just, oh, somebody wants to go to work. It’s like the idea is that Congress has the ability, for Christ’s sake, Congress is creating these entities. And there’s a very strong argument they should be able to say, if we’re going to create it and fund it, we’re going to do it in a way that you can’t just sort of willy nilly start monkeying with its leadership unless there’s cause. And that’s the balance of the power of Congress and the power of the legislative branch and the power of the executive branch.
And just to pretend that you’re saying, oh, the executive is really the only interest here, hearkens back to our conversation about the presidential immunity decision, which is that the Supreme Court majority really not understanding, in my view, historically how important the checks and balances on the executive are, see e.g., the Justice Jackson famous concurrence. And don’t worry, Mary, I’m not going to get too triggered on it. But this was just such an example of that, where there is a whole other side of the coin here. And we couldn’t be in an administration where it’s not more palpable how important those checks and balances are. And the court itself is feeling it and should understand it.
So I thought that was just so striking, that articulation of the interests here.
Mary McCord:Yes, I totally agree. And I think getting back to your point about why should people care, I should have said this at the top. Trump is not going in and firing everybody on these multi-member boards. Remember I said bipartisan boards, right? He is firing the democratically appointed members of the board. And so, why did Congress create independent agencies like the Federal Trade Commission, the National Labor Relations Board, the Merit Systems Protection Board? Because they wanted the boards to be bipartisan so that they would operate independent of a president, right?
When you’re talking about national labor policy, agencies with respect to, and boy, is this a big deal right now, federal government employees, right? That’s what the Merit Systems Protection Board is about, adjudicating issues involving federal employees, reductions in force, outright firings, et cetera, right? You don’t want that to be politicized. You don’t want the Federal Trade Commission to be politicized. And you don’t want the Federal Reserve to be politicized. And one of the things that I think has been most concerning to those of us watching this develop in terms of the court looking very expansively at executive authority to fire without cause has been the red flags waving like crazy about the Federal Reserve and the Federal Open Market Committee. Because boy, you sure don’t want the Federal Reserve that doesn’t just set monetary policy that affects the United States, it affects the world, right? You don’t want that to be politicized.
Andrew Weissmann:So what does the court say here? Because it’s just talk about just inventing something.
Mary McCord:Yes.
Andrew Weissmann:What does this little two page decision say about don’t worry about the Federal Reserve?
Mary McCord:The two pages has one paragraph that says, oh, you know, Ms. Wilcox and Ms. Harris contend that the arguments in this case necessarily implicate the constitutionality of the for-cause removal protections for the Federal Reserve’s Board of Governors, members of the Federal Open Market Committee. We disagree. Quote, “The Federal Reserve is a uniquely structured quasi private entity that follows in the distinct historical tradition of the first and second banks of the United States.” period, full stop. They make a reference to say the law, it’s another case decided just a few years ago to a footnote in that case that basically says we don’t have to decide about the Federal Reserve right now. The dissent talks about the Federal Reserve, but that’s sort of, you know, a unique entity with a historical tradition.
There’s been no analysis anywhere that would suggest why the Federal Reserve should be different than the NLRB or the MSPB or the FTC when it comes to the constitutionality of Congress creating an independent agency with a bipartisan multi-member board.
So is that going to be a relief to people that maybe the Federal Reserve is not covered here? Yes, it will be and it should be. But like this is a one sentence just kind of like it’s different.
Andrew Weissmann:This is Judge Kagan’s point. She goes, except apparently for the Federal Reserve. And she just said the majority today closes its decision with out of the blue that its decision has no bearing on the constitutionality for cause removal protections for members of the Federal Reserve Board or Open Markets Committee. And she’s like said, “I’m glad to hear it.” But that she just said “That makes no sense because for the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of” wait for it, lots of letters coming up “the NLRB, the MSPB, FTC, FCC and so on, which is to say it rests largely on Humphrey’s” unquote.
Mary McCord:So there will be more to come here. Again, this is preliminary.
Andrew Weissmann:Yes, it’s preliminary, but not. That’s right. I mean, unless somehow a rabbit is pulled out of a hat and this Federal Reserve exception grows in some unexpected way.
Mary McCord:That’s right.
Andrew Weissmann:Mary, should we take a quick break and come back and talk about Judge Murphy in Massachusetts and what is going on in that area? And it’s a really good example of executive power trying to be checked by the courts and sort of this growing executive power and the problem that we can see over and over again. And we’ve been addressing when it comes to charging a member of Congress. It’s a question of an executive order on a law firm, if it’s attacking Harvard Institution. Now we’re going to be going back to the sort of roots of the immigration context.
So let’s take a break and come back and talk about that.
Mary McCord:That sounds good to me.
(BREAK)
Andrew Weissmann:So, Mary, let’s talk about Judge Murphy, Brian Murphy in Massachusetts. He has his hands full with a case where there are people being extracted to apparently South Sudan against his order. He is looking at that, sounds familiar. This concern about is there contempt of an order that was trying to impose due process? It’s not that these people can’t eventually be returned to their country. It’s that they’re entitled to due process. He is dealing with OCG, we’ve also talked about, where he has ordered the facilitation of his return. And there’s some language I know you want to point out there. And he is really doing yeoman’s work with the government that keeps on, in my view, it’s like a hockey goalie, where they keep on making more and more arguments that seem pretty spurious to me.
And he keeps on saying, no, no, you just need to do this, and batting down all of these arguments. But should we start by talking about OCG? Because I thought that was really interesting, what he said about OCG. Remember, this is the person who was, according to the court, wrongly sent to Mexico, a place where he could not go. He was actually told at his immigration hearing that he would not be sent to Mexico. The government lawyer agreed with that, that this was not about sending him to Mexico. And then two days later, according to Judge Murphy, he is sent where, wait for it, I guess everyone knows, to Mexico.
When he is in Mexico, he is given a choice. He can stay in prison in Mexico, or he can go to Guatemala, but not be in prison. But he has already been found by the immigration judge that he should not be sent to Guatemala because he has fear of persecution in Guatemala. And it’s just horrendous, the facts that he testifies to. But the same is true in Mexico. So his real choice was just like, do you want to be in a country where you’re going to have a legitimate fear of persecution, but be in jail? Or do you want to be in hiding in another country, but at least not be in jail? That’s his choice.
Mary McCord:Not a real choice, the judge said.
Andrew Weissmann:Yes, exactly. And so, Mary, I know to every fiber in my being that if you were in the government, you would say, “Judge, we’re going to get to the bottom of this and we will get him returned here so that he can have due process.” He may get removed later, but it’s just not how the government operates.
Mary McCord:Yes, no, that’s right.
And he makes clear his frustration in this order granting the preliminary injunction, which he realizes is really more like a permanent injunction because he’s saying, ultimately, you need to facilitate OCG’s return to the United States. Right before getting to what he says about that, remember, this is also the case where the government had originally represented that OCG had said he did not have any fear of going to Mexico. And it was then, as the court wanted to look more into this, which is why he had not ordered earlier that his return be facilitated, he wanted to look more into it. That’s when the government filed its notice of an errata. Oh, sorry, we can’t find anybody who actually asked him whether he had a fear or who even actually told him he might be deported to Mexico or extradited to Mexico.
Andrew Weissmann:By the way, errata, I’m seeing you, so I know that you’re using quotes, air quotes. And the judge does, in his opinion, he has actually ordered discovery on that issue as to how that quote “errata” unquote, happened, because he wants to get to the bottom of it. By the way, the government also filed something in the court file with the actual name of the person.
Mary McCord:That’s what I just going to read, Andrew, because this is what the judge says. “Finally, it must be said that while mistakes obviously happen, the events leading up to this decision are troubling. The court was given false information upon which it relied twice to the detriment of a party at risk of serious and irreparable harm. The defendants then exacerbated that risk by placing OCG’s full name on the public docket in violation of this court’s order.” That’s the thing that get people hurt.
Andrew Weissmann:Yes, and so that is our current administration. And that’s where I just want to make sure people understand, this is not Mary and me saying this. It’s like, this is in black and white what is happening in our country right now.
Mary, do you want to talk about what he says here about why facilitating OCG’s return to this country should be a whole lot easier than we’ve heard that same language with respect to Mr. Abrego-Garcia, who, by the way, as we are recording this, is still in jail in El Salvador.
Mary McCord:Yes. The court drops a footnote. The court notes that “facilitate” in this context should carry less baggage than in several other notable cases, referring, of course, to cases like Abrego-Garcia and also like the cases of those who actually, you know, that two plane loads who were sent to El Salvador. He goes on to say, “The defendants have declined to make any argument that facilitating OCG’s return would be costly, burdensome, or otherwise impede the government’s objectives. The court anticipates that defendants will at least take the same level of action as is routine to return lawfully removed aliens.” noting that here, of course, OCG’s removal was not lawful or that there’s a plaintiffs have shown a likelihood of success in ultimately showing the court that his removal was not lawful.
So there’s no reason for the defendants to take less action than they would when returning a lawfully removed alien.
Andrew Weissmann:That was such a skillful footnote. And it was really skillful to cite to ICE’s, like, sort of own internal policies and to point out the difference here. And it’s why it’s horrendous as the Abrego-Garcia case is, in many ways, it’s hard to say this. This is even worse. But it’s one where it’s definitely remediable. And what’s remarkable is that if they wanted to, he would be returned, he’d be home already. This is not a hard thing to do.
Mary McCord:Yes. And I think an appropriate place to close out this discussion is to the other decision issued I think last night by Judge Murphy. And this was on a motion to reconsider his ruling with respect to those who had been extracted and were en route to South Sudan when he had a hearing that said, no, these people need to have, they were only given 16 hours’ notice over the middle of a night that they were going to be deported and they weren’t told where to. And so you need to give them the opportunity to make an argument if they have an argument to make that this place you want to send them, South Sudan, is not a safe place.
In fact, the judge in his denial of a motion to reconsider his ruling saying they need to have hearings, you could do the hearings abroad or you can do them here, but they need to have hearings. In his denial of his motion to reconsider that, he made the point of saying it was just in March that our government put out warnings for Americans not to go to South Sudan because of how dangerous it is and how many people from other countries have been violently attacked there. And you mentioned at the beginning of this segment, process, right? Process and we’ve talked about due process so many times.
So a court now in denying this motion to reconsider says, look, I told you if you want to have these hearings in Djibouti, because apparently the plane landed in Djibouti, that’s where these eight people are, and you think you can provide them real type of hearings that they deserve, you can propose that to the court. I’m not telling you government that you have to bring them back to the United States, but they have to be able to have the opportunity to be heard on whether the place you’re taking them is a place that would violate the convention against torture or otherwise be a place that they cannot be sent to.
And I’m not telling you how that has to be done, but you’ve got to do it. And here’s what the court says, and I think it’s such a fitting way maybe to end today, which is he says, “To be clear, the court recognizes that the class members at issue here have criminal histories, but that does not change due process.” That was all a quote, but now the judge is quoting a Supreme Court case, Justice Frankfurter actually. “The history of American freedom is in no small measure the history of procedure.” That’s Justice Frankfurter.
He goes on to quote from the Supreme Court Justice Douglas, “It is procedure that spells much of the difference between rule by law and rule by whim and caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.”
Andrew Weissmann:And said by two very different justices with very different views in the same way that we have seen Judge Wilkinson, Judge Howell, Judge Bates, Judge Murphy, Judge Gallagher. I could go on and on.
Mary, that is such a fitting way to end. So thank you so much.
Okay, folks, thank you very much for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free. You’ll also get subscriber-only bonus content.
Mary McCord:To send us a question, you can email us at mainjusticequestions@mbcuni.com.
This podcast is produced by Vicki Vergolina with production support from Max Jacobs. Our audio engineers are Katie Lau and Bob Mallory. Our head of audio production is Bryson Barnes. And Aisha Turner is the executive producer for MSNBC Audio.
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