After Friday’s Supreme Court ruling to limit nationwide injunctions, Mary and Andrew begin by breaking down what it means for future challenges to executive actions as they make their way through the courts, and what’s next for Mary’s birthright citizenship case. They also tackle the DHS lawsuit against all federal judges on the district court in Maryland, before reviewing the Justice Department’s plans to prioritize cases revoking citizenship—aka ‘denaturalizing’ US citizens. This, along with their discussion of ICE targeting migrant workers and using routine traffic stops to check legal status, shines a light on the legal limits of ICE’s tactics.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hi, welcome back to Main Justice. It is Tuesday morning, July 1st. I can’t believe it. It’s July 1st. I’m Andrew Weissmann and I’m here with Mary McCord. Mary, hello, but you know, I just said hello to you.
Mary McCord: It’s like two days in a row, yes. I just saw you yesterday.
Andrew Weissmann: For those people listening, I usually am not like a huge shout out to Premium, but I have to say the Premium show yesterday, like if there’s any reason to pay, it’s like Tess Bridgeman, who was our guest, was fantastic.
Mary McCord: Yes. It’s for the deep dive into the authorities related to the strike on Iran, which at this point literally seems like ancient history, but is not in fact ancient history.
Andrew Weissmann: And she talks about the sort of ongoing policy implications and it’s a legal deep dive and a policy deep dive. Anyway, you can tell we are both very, very enthused by it. So anyway, Mary, we actually have a lot on our plate and I actually am dying to talk to you about it because the main thing we’re going to talk about, at least starting, is your case. But then what else do we have on our plate?
Mary McCord: Right. And by my case, it’s not just my case. A lot of people have this case, but this is, of course, the Supreme Court’s decision on Friday in the birthright citizenship cases, one, being a case that my organization ICAP brought along with co-counsel at CASA and ASAP, the Asylum Seekers Advocacy Project, on behalf of pregnant women and the members of both of those immigrant rights organizations. And we had obtained preliminary injunctions almost immediately after the executive order attempting to limit birthright citizenship was signed by the president on January 20th. These went up to the Supreme Court because the government wanted to stay the effect of the universal preliminary injunction. Because what I forgot to say, but what every listener knows, is these were nationwide or universal preliminary injunctions applying everywhere.
That word universal is really a better word, but a lot of people call them--
Andrew Weissmann: I know. Amy Coney Barrett
Mary McCord: Explains that, has a whole footnote.
Andrew Weissmann: Exactly. Which is actually, it’s smart. It is a smart footnote.
So, yes, we’re going to talk about that and what happened. And I’m dying to talk to you about, Mary, you actually have news about sort of what happened just yesterday because you were sort of anticipating, like a good litigator, you anticipate if we win, if we don’t win, like what do we need to do?
Mary McCord: That’s right. Because the only thing challenged was the scope of the injunction, not the merits about the constitutionality of the birthright citizenship order. Yes. So we’ll talk about that.
Andrew Weissmann: What else we got?
Mary McCord: Then we will also talk about a few other things sort of that are also efforts by the administration to really rein in judicial authority, such as the unprecedented lawsuit filed, I guess, a week ago by the Department of Homeland Security against every single sitting judge in the District of Maryland, every federal district court judge, because the administration doesn’t like the fact that they have a standing order, which is actually pretty common across district courts in the U.S., that says if there is a habeas petition filed by someone who’s, you know, wanting to contest a removal, we have an automatic stay of two days so that the person is not deported before we get a chance to rule on the habeas. And DHS doesn’t like that. And so, they have sued all of those district court judges. And we’ll talk briefly about that. And then, we will actually dig a little bit deeper into what is happening when it comes to immigration enforcement around the country and, in particular, how this implicates constitutional rights, specifically Fourth Amendment rights.
We’re talking about raids of different types of employers, car washes, farms, restaurants, smaller businesses rather than larger businesses. These raids where, you know, numbers of ICE agents come and they just ask a lot of people for identification and they round up a bunch of people and it’s all an effort to deport 3,000 people a day, right?
Andrew Weissmann: Mary, there also is reporting about the use of car stops. And this is an area where you’re going to have to rein me on that because, you know, I teach that. And so, this is the kind of thing I was looking at going, okay, I know all of this. I’ve just taught it.
Mary McCord: And you and I lived through the Supreme Court deciding Whren, too, when we were prosecutors, which we’ll talk about.
Andrew Weissmann: I have the precursor to the Whren case, which is this case called Scopo. But in any event --
Mary McCord: We’ll get to that.
And one thing on that, just a little spoiler alert, but I’ll give more into it. I actually, when I testified at a recent spotlight hearing on the Senate side, one of the other people testifying was the 19-year-old young woman who was erroneously stopped at a traffic stop and spent a couple of weeks in detention before she was released. So lots to talk about.
Andrew Weissmann: Also, there’s related to that is there is this new effort to denaturalize that we’re going to talk briefly about.
Mary McCord: Yes.
Andrew Weissmann: And then we’re going to do something that we’ve been meaning to do, is just both of us have on our mind, a couple quick things that we just wanted to highlight at the end. So we’re going to take a couple of moments to do that. But Mary, why don’t we turn to the first topic?
Most people know that there was a Supreme Court argument that there’s now been a decision and that what was before the court was not the merits of birthright citizenship, which is remarkable because the government didn’t have the temerity, the chutzpah, the cojones. Have I used enough? I’ve run out of thesaurus words. They didn’t have the chutzpah to say, yes, we want you to say that this is legal. But instead, it was all about this idea of universal injunction.
So like the idea is this procedural mechanism could come up, and has come up in many, many cases. And this is just the vehicle for it. So in many ways, it’s not really about birthright citizenship. It’s about the--
Mary McCord: No, this just happened to be the case that got there. Right.
Andrew Weissmann: Exactly. So on the plus side, nothing in the opinion in any way address the merits of that in terms of the majority. But there is a decision on the idea of a universal injunction. And what, in a nutshell, what did Amy Coney Barrett, who wrote the decision, what did she do with respect to the individual plaintiffs? And what did she do with respect to the state plaintiffs? Because there were states that were also plaintiffs who were bringing suits. And there’s a little bit of a difference there. But what did she decide?
Mary McCord: She is. And you say she, but it was a six to three opinion. There were also three separate concurring opinions. We’ll talk briefly about. And there were three dissenters that together wrote two opinions. Justice Sotomayor wrote one that Justices Kagan and Jackson agreed with. And then Justice Jackson wrote her own. And I want to go back to something you said. This was a procedural decision. Right? So the way Justice Barrett, who wrote for the six in the majority, she started this out by, and the challenge, as the government proposed was, universal injunctions. In other words, injunctions that benefit even people who did not bring the case. People who are not named as plaintiffs in the case. That’s what a universal injunction is. When a court says this is unlawful here, this is unconstitutional. So we’re going to prevent the government from enforcing this new birthright citizenship policy anywhere in the country, not just as to the plaintiffs who brought the case.
So in the case, we’re talking about three cases that were in the Supreme Court. Our case, five pregnant women, two immigrants rights organizations on behalf of their members. And that is something that the court said is okay to do. It did not grapple with the government’s arguments that, oh, no, it really shouldn’t even be on behalf of its members. It should be just limited to named plaintiffs and named people. But they said, no, we’re putting aside that argument because that’s something called associational standing, where a membership organization can actually bring a case on behalf of its members.
So those plaintiffs in our cases and then the 22 states that brought cases. So that’s what the government was arguing procedurally. And the majority agreed with that, that courts exceed their authority under this judicial act that goes way back in history, a congressional authorization for what kinds of relief courts can give. Right? There are two kind of cases that are brought in the world. One is a case for money damages, which is usually when you’ve got a dispute between private plaintiffs and somebody believes they were wronged by somebody else. And these somebodies can be people or they can be companies, right, or they can be organizations. And that’s for money damages.
The other is what we’re talking about here, a case for equitable relief, meaning nobody challenging the birthright citizenship order is asking for a single penny of money from the government. They’re saying, stop this unconstitutional executive order. That is called equitable relief.
Andrew Weissmann: Mary, can I just ask you something? Because I think for some people, they might be going, well, why should a court be giving relief to somebody who’s not before them? But I just want to make sure people understand, let’s say that this is like a blatantly unconstitutional provision. And by the way, every single court that’s actually reached the merits has said that.
Mary McCord: That’s right.
Andrew Weissmann: And so, let’s say one person sues and the judge says, this is blatantly unconstitutional. Then the government goes ahead and enforces it against everybody else. And what everybody, in order to have protection, has to hire a lawyer and go to court if there isn’t a way to basically have the ruling apply to people who haven’t gone to court. And we’ll talk about those other ways, but that’s the reason why sometimes you want the decision to be about people who aren’t in court. Because if you’ve got something affecting, and this is a good example, millions of people, just think about the burden shifting that goes on here. And especially if the government’s going to act very precipitously, people don’t have time, they don’t have money, there aren’t enough lawyers.
Mary McCord: There aren’t enough resources. And this is something, of course, that Justice Jackson points out. This contributes to the two-tiered system of justice, right? Only those who are able to challenge are the ones who then get the relief.
But I will say, the majority does not say universal injunctions are completely out the window. What they say is that there can be injunctions, but they cannot be broader than necessary to provide complete relief to each plaintiff withstanding to sue.
Okay, first of all, that’s already been the rule. And so, for example, when we, on behalf of CASA and ASAP and the pregnant women, got a universal injunction, we said, “CASA and ASAP have almost a million members between them across the entire country. It is necessary to do a universal injunction nationwide to give complete relief to these plaintiffs, because otherwise, if you’re a CASA or ASAP member and you have a baby, how are you going to even, like, you’re going to, what, have to have a membership card? And these are organizations that don’t really even require membership cards. Like, how are you going to prove that your baby is a citizen?”
In the case of the states, the states said, “We need a universal injunction for complete relief because suppose somebody who was born in another state that is not a plaintiff moves into our state where we provide certain benefits and we consider the person to be a citizen, and this other state would consider them not to be a citizen, then the burden is all on us to figure all of that out.” And the lower courts had said, “Yes, we think that that’s needed for complete relief.”
What Justice Barrett, writing for the majority, did is she looked back historically. This is going to remind people of this. We do this historical analysis. This reminded me of the Bruen case regarding Second Amendment from a couple of terms ago. What happened at the time of the founding? Were courts able to give universal injunctions at the time of the founding or even before that? And a matter of fact, in our case, we had argued about actually some historical analogs even at the time of the founding, something called a bill of peace, because the idea of a court of equity is to be able to provide equitable relief that is flexible enough to respond to the problem.
But you know why there weren’t a whole lot of universal injunctions at the time of the founding? Because there weren’t the same types of executive orders that are happening in modern times that are requiring this types of relief.
Andrew Weissmann: But she said, with respect to that, what is sort of the effect with respect to your organization in terms of what she said? And then what did she do with respect to the states? And I’m just saying she, but it’s the majority.
Mary McCord: Sure. And then I want to talk about the frames. Yes. So this is just the majority. With respect to our case, she basically said the individual plaintiffs, if they’re protected by the injunction that the court issued, meaning the birthright citizenship order cannot be imposed against them or their babies to be born, that provides them complete relief. In a footnote said, associational standing is still something that we recognize essentially. So for our perspective, that means all the members of ASAP and CASA, all of our individual plaintiffs are covered. With respect to the states, they basically said the states make arguments about why it’s necessary for complete relief. But the courts below didn’t grapple with the government’s arguments about how you might be able to fashion a more narrow injunction that is not universal, that might give complete relief. Well, you know why the lower courts hadn’t grappled with it? Because the government hadn’t made that same argument in the lower courts about all these other ways that injunctions could be narrowed.
So in the cases involving the states, I think we’re going to see those lower courts now decide, again, is it necessary for complete relief or not? And that could mean that those cases, if those judges, there’s two different cases involving groups of states, if the courts say, no, we looked at this again and we still think a universal injunction is necessary for complete relief, we could see this going right back up to the Supreme Court because she did not, the majority did not give any type of clear guidance about how to apply that. That’s right.
Andrew Weissmann: So I have a question for you, and this may be super basic, but I’m thinking maybe people listening have the same question, which is this. I sort of read this as saying, you know what, we are not going to allow this particular vehicle to be used at sort of the district court and court of appeals levels in terms of universal injunctions, that when you say something it’s just going to be with respect to the people before you and it may end up being broad, as you said, Mary, but we’re looking at the people who are actually before us in the court.
But when it comes to the Supreme Court, we’re laying out the rule of law for the land. And what I didn’t get is that disconnect. So if I had to criticize Justice Barrett’s decision, let’s assume that you should apply history and that she applied it correctly. Those are big ifs, but let’s assume that. What I didn’t get was, isn’t this a goose gander thing, which is you’re saying that the district courts have to look just at the people before them. The court of appeals has to look just at the people before them. But when the Supreme Court decides we are going to issue essentially a universal injunction because --
Mary McCord: And it’s okay.
Andrew Weissmann: Because we trust us. The problem with that is that’s not a law point. That’s a policy point. And her whole criticism of Justice Jackson is we don’t do policy, Justice Jackson. You may have a good policy point, but this is a law point and the law requires us to do this. But I don’t understand why it’s not binding on the Supreme Court to say, oh, you know what, we’re just deciding the constitutional issue as to the people right in front of us and the next people are going to have to come back. I mean, I thought that was --
Mary McCord: It’s interesting. This really came up at our oral argument when the justices pressed the solicitor general. If we say that this executive order is unconstitutional, are you going to abide by that across the country?
Andrew Weissmann: In other cases of people not before us.
Mary McCord: That’s right. That’s right.
Andrew Weissmann: Where our decision, just our decision under our reasoning now, our new reasoning, is it actually isn’t it isn’t being decided?
Mary McCord: Yes. Although it’s interesting because this comes to principles like the courts say what the law is, right? That goes back to Marbury v. Madison, ancient history. Right?
And so, what really what the Supreme Court is saying here is you lower courts, you don’t have the ability to do what we can do. But if you look at their reasoning, the reasoning should apply to them. For example, I think this is the key sentences in her opinion. And there’s no reason this shouldn’t apply to the Supreme Court. And this is it.
She says when a federal court enters a universal injunction against the government, it, quote, “improperly intrudes on a coordinate branch of government and prevents the government from enforcing its policies against non-parties” meaning people that are not the plaintiffs before the court. That is enough to justify interim relief.
And I think the difference, Andrew, like if I took out the that is enough to justify interim relief, it’d be like the court right then giving up, giving up its authority to rule that what the executive is doing is unconstitutional. That is crazy. That is completely antithetical to our constitutional separation of powers. This is exactly what Justice Jackson says. She’s like they have two completely different frameworks, right? Justice Barrett and the majority coming in with this technical legal interpretation of the Judiciary Act back from the late 1700s and what authority it gave judges and Justice Jackson coming and saying, hang on a second, we have separation of powers built into our constitutional framework with three coequal branches. It is the job of the judiciary to say what the law is. And basically, majority, you’re like completely turning that on its head.
But the last sentence is the sentence that I think Justice Barrett would probably say this is the difference to address your point about what about the Supreme Court? Why doesn’t that apply? That is enough to justify interim relief. They see a difference here. And Justice Kavanaugh’s entire concurring opinion is about what he calls the interim before the interim. And essentially, he’s saying that, look, when you have plaintiffs challenging executive actions that are, you know, significant and important, there is an interim before the interim. There’s that time when a lower court judge makes a decision that could be an injunction. It could either stop the government from doing something or tell the government to doing something.
The merits are going to take years, he says, to get through the courts of appeals and up to the Supreme Court to be decided. And so, that interim right there before you get to the interim, after the lower courts even decide the merits, like we’re on preliminary injunction. So that’s the interim before the interim. And that’s when the Supreme Court, he is saying, should be the ultimate decider of the interim legal status before a decision on the final merits.
But I think he and the other justices in the majority believe that once there is a decision on the merits, then that needs to apply everywhere.
Andrew Weissmann: The reasons I said, I have huge issues about the dichotomy between how they’re treating themselves and how they’re treating every lower court case. I also think it’s a little rich for Justice Kavanaugh to say, don’t worry, we’re going to act really quickly, but see Trump versus United States. You know, that’s like, are you freaking kidding me? By the way, I think both of us are getting very close to cursing.
Mary McCord: So we should take a break and then we should like take a breath and then.
Andrew Weissmann: Exactly. So that’s sort of Justice Kavanaugh, sort of like, don’t worry, we, the Supreme Court, will be the ultimate deciders and we’re going to act very quickly.
Mary McCord: Because what he’s saying. And he even says it’s the Supreme Court’s role to resolve major legal questions of national importance and to ensure uniformity of federal law, not just like at the end of the day when they decide on the merits. And remember, only a tiny fraction of cases in the country get Supreme Court review.
Andrew Weissmann: Exactly.
Mary McCord: But he’s talking about the major legal questions. He says that means at the interim, that means at the end, it’s us, it’s us. And it’ll be interesting to see. And I really don’t know. No one else joined in his concurrence being like, hey, bring it on. Bring on more and more of these emergency motions to the Supreme Court because it has definitely expanded their docket this spring.
But the important part we haven’t talked about yet, which we’ll come back to after the break, is even the majority and certainly Justice Kavanaugh and certainly the dissenters. And I do want to talk a little bit about what they said. All recognize there are other paths to getting relief nationwide.
Andrew Weissmann: Exactly.
Mary McCord: In fact, it’s a path that we took within two hours of the Supreme Court decision. And so, let’s talk about that when we come back.
Andrew Weissmann: When we come back, let’s talk about class actions and the Administrative Procedure Act, the APA. Those are the two vehicles that Mary’s talking about, and I want to get your take on sort of how those would apply.
Mary McCord: Sounds good.
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Andrew Weissmann: Mary, I have a question for you, and it’s because the Supreme Court has said that there are two other vehicles which would allow, potentially, they didn’t, like, definitively say it, but they said there are two other ways in which, essentially, the court can give these universal injunctions in a way they can start binding people who are not before them.
One is APA claims, and the other is the idea of a class action, where there’s a similarity of legal issues, sometimes even factual issues, and the court says, “You know, we’re going to create a class, and we’re going to decide this for everyone in that class.” And my question to you is, why doesn’t that, in some ways, sort of completely mitigate this? Why isn’t one way to look at this-- by the way, I disagree with this, but I’m just going to ask it anyway. which is, if you can essentially get the same kind of relief under the APA, or as a class action, doesn’t that kind of mood out this decision? In other words, even if you disagree with it, what’s the real harm from this decision? And that’s -- this is a rhetorical question, because you and I have talked about this, and we both have feelings, but people have talked, and actually, some of the people talking on air afterwards have sort of tried to make that point, that a lot of the harm can be eradicated because of these other two vehicles.
Mary McCord: And certainly, in the case of our case, the CASA case, that is a vehicle that we have pursued, and that means a class of babies born, and who will be born after February 19th. That was the date, supposedly, when the executive order originally was going to go into effect, who would otherwise be denied citizenship under this executive order, and their parents. And the class action is something created by Congress and the rules of procedure, Rule 23, particularly 23(b)(2) is the one applicable here, and it’s when there is this common issue of law and fact, and here we’re talking about like an executive action that raises these constitutional issues, and all of the plaintiffs, essentially, all of the members of the plaintiff class have the same issue with it, right? Which is it’s unconstitutional across the board. It doesn’t matter my circumstances, particularly, it’s like unconstitutional in violation of the text of the Constitution, in violation of a statute, in violation of centuries of history. We all have the same claim against this policy.
And so, it requires things. It is a procedural mechanism for class actions to be filed, and so it has some hoops to jump through. There has to be numerosity, lots of people affected. Obviously, that’s easily met here, right? The issues of fact and law have to be common between the parties. There has to be typicality in the way that each of the parties, and by parties, again, I’m talking about the plaintiffs and the plaintiff class, about how the policy they’re challenging would apply to them. And then there have to be representative class members to represent the interests of the class, and they have to actually be good representatives. In other words, they actually have to have their claims be typical and common with the rest of the class so that they will adequately represent them. Right?
These are the types of things that have to be shown. And so, in a case like this, that is something that we have now filed, we filed it, like I said, within two hours after the order, we added additional class representatives, including both babies that have been born since the executive order, and women who are pregnant with babies to be born imminently, to represent the interests of this entire class.
But it might not always be a vehicle, because, for example, states, states can’t be class actions.
Andrew Weissmann: Right.
Mary McCord: So, we’ve seen states, and we’ve seen it in administrations, Republican administrations and Democratic administrations, that state attorney generals will often come together and a group of states will challenge executive action, and oftentimes, they’ll get nationwide relief. But states can’t really do a class action.
Andrew Weissmann: Right. And more than states, I mean, states is one area.
Mary McCord: Oh, yes. Just one.
Andrew Weissmann: And we saw this in the, even in the Alien Enemies Act cases, where you think there was just a common legal issue, but there was a judge in Texas who said, “I’m not certifying this as a class.” Now, he might get reversed and all that.
Mary McCord: Now, many others did.
Andrew Weissmann: Right.
Mary McCord: Many others did.
Andrew Weissmann: Exactly. But the point is, is that you could have very, very different results on the various prerequisites, so that it’s not like, “Oh, I know I’m going to be able to bring a class in every case.” And in fact, Justice Alito, in a separate concurrence, basically said, “Hey, don’t you think you’re going to be able to moot this by bringing APA and class claims, because I’m on this like a duck on a June bug. I’m basically looking to shut that down.”
Now, that’s me paraphrasing, but he basically was like, “I am ringing the alarm bell, because I know where you’re going to go, and I’m trying to shut this down.” Which is a little rich.
Mary McCord: In fact, here’s what he says. He says, “We need to scrupulously adhere to the rigors of Rule 23 so that universal injunctions don’t return from the grave as nationwide class actions.”
Andrew Weissmann: But of course, it’s not returning from the grave. I mean, Amy Coney Barrett’s point was like taking her at her word. She’s like, “It’s legally something I can do.” Well, it’s not getting around something if you have another vehicle which legally can be used. But that’s not how he is thinking about it. He’s thinking like, “I just don’t want these,” which is very rich, because he was all, I couldn’t say all for it, but just say, when you had a Democratic president, it’s not like Republicans were screaming and yelling about getting rid of universal injunctions. They liked them.
Mary McCord: No, that’s right. This is kind of a bipartisan issue. It’s just that I think the majority perceived universal injunctions as sort of a way to avoid having to go through the class action mechanism. And it’s true that while there’s times where it just doesn’t make sense. It doesn’t seem like you should have to do that when you’ve got an executive action that’s blatantly unconstitutional, that you shouldn’t have to go through those hoops. And the fact is the Supreme Court has made it difficult and more difficult in the last few decades to get classes certified. And sometimes it gets technical because classes might have subclasses, because maybe not everybody is exactly similarly situated.
But here, we’re talking about the spatial constitutional challenge to the executive order. Anybody who is affected by it has that same common issue of law and fact. Is this executive order consistent with the text of the 14th Amendment, Supreme Court precedent interpreting the 14th Amendment, and in fact, also a text of a congressional statute? So, that’s one exception. The other, as you indicated, was administrative procedure review. And that is when there is a final agency action that the statute, it’s section 706, allows for a court to then vacate that agency action. And when you vacate that agency action, that means it’s just vacated everywhere.
Andrew Weissmann: Yes, right. It can’t be applied elsewhere. And Amy Coney Barrett somewhat alludes to that that sometimes this sort of goes away because of the nature of the case.
Mary, I want to ask you sort of a bigger question. I started by saying this case was not about the merits because it ended up being a procedure. But one part of this case because someone seek a disjunction, and that was the government seeking an injunction to stay the injunction, right? They’re seeking a stay of the injunction. So there’s a lot of things that the court’s supposed to consider, and one of them you would think would be, is this a bullshit case?
Mary McCord: There we go.
Andrew Weissmann: Meaning you’re supposed to consider is this blatantly unconstitutional so you have no equities here and you’re not likely to prevail and there’s real harm that would happen otherwise.
And so, you would think that the merits would come up. What did she say and what, I’m saying the three dissenters, what did they say?
Mary McCord: This is, again, that separate frame of how to look at it. When you go in front of the Supreme Court or any court asking for a stay, very much like when you ask for an injunction, you have to show four things, right? You have to show a likelihood of success on the merits. You have to show irreparable harm. That’s why you need this right away. And then you have this balance of the equities, the interests of the public and the interests of the government, this balance of the equities.
And so, here’s where we have a total disconnect. Justice Sotomayor says, “On the merits here? Likelihood of success on the merits? This is a blatantly unconstitutional order, this birthright citizenship, and that’s what the court should be looking at? And the government has showed zero harm. How can it show harm from something that has been established here, even since before the 14th Amendment? Frankly, we already adhered to, except for with respect to enslaved people, which is what prompted the 14th Amendment to reverse the result of the Dred Scott case, a really just horrific moment in history where the Supreme Court had held that African-Americans, enslaved individuals, did not have citizenship. 14th Amendment reversed that, but outside of that, otherwise, birthright citizenship had existed even before the 14th Amendment.
14th Amendment, of course, is after the Civil War, so we’re going back more than 150 years. By 127 years ago, the Supreme Court had held definitively that birthright citizenship means what it says. It’s everyone born here, with some very limited exceptions, like the children of diplomats or children born on foreign ships and things like that.
Andrew Weissmann: Okay, but that’s the merits of it.
Mary McCord: You get it.
Andrew Weissmann: Right. So that’s the merits of it, and there’s a long history, and Justice--
Mary McCord: So it can’t be harmful.
Andrew Weissmann: Like, how can this possibly be something you can avoid looking at? And what does Amy Coney Barrett say in the majority?
Mary McCord: So she says, “When we’re looking at likelihood of success on the merits, we’re not even looking. Right now, the only thing in front of us is universal injunctions, not birthright citizenship.” So the question on likelihood of success on the merits is government, are you likely to succeed on the fact that universal injunctions are not authorized by the Judiciary Act of the late 1700s, giving courts authority to provide equitable relief? Yes, you’re likely to succeed on that, because we don’t see any historical analog to universal injunctions. Irreparable injury, her way of looking at that is when the government can’t affect a policy it wants to affect, that’s irreparable injury.
So the upshot of that is what, Andrew?
Andrew Weissmann: What? This is like --
Mary McCord: Well, I mean, it’s like, you know--
Andrew Weissmann: By the way, I call that, when I’m teaching, when I ask students that question, it’s the, I’d like to ask students, “what do I have in my pocket?”
Mary McCord: Yes, that’s right. Eggses, is it eggses in your pocketses? And the reason I did that is because I know I’m just talking on and on and on. But here, you know, you can look at this case. Blatantly unconstitutional policy, even the majority doesn’t try to defend it. They’ll say, “Oh, we didn’t have to, because it went in front of us.” Justice Sotomayor writes an entire opinion about it, and you get to keep doing it as to all those people who have not had an attorney bring a case in court. You get to keep doing it.
And then they give other examples, and Justice Jackson gives other examples about, you know, something that no one would suggest is constitutional. Think of something like, blatant racially discriminatory policy or something like that.
Andrew Weissmann: Or it’s Justice Sotomayor, in her opinion, talks about the next administration, like, what if they start taking your guns in violation of the second --
Mary McCord: Taking everybody’s guns away.
Andrew Weissmann:In other words, the shoe can be on the other foot.
Mary McCord: Absolutely.
Andrew Weissmann: Are you really going to be doing this? So, Mary, we have to move on.
Mary McCord: We do.
Andrew Weissmann: I wanted to talk about, and you had mentioned, this idea that Maryland issued a standing order. God knows.
Mary McCord: Wait, wait, wait. Can’t move on to that yet, because I do need to say two other things. We filed the class action. Court had a telephonic hearing yesterday in our case, pressed the government on, “Can you guarantee that the government will not deport babies right now?” Because the government’s saying, “30 days, ramp up, everything stayed for 30 days.” She said, “Can you say the government will not move to deport babies during these next 30 days, during the ramp up?” And he said, “Well, I believe that to be the government’s position, that they won’t.” She’s like, “That’s not good enough. I need this in writing.” So, by noon today, right about when we finish this podcast, the government has to file something in court that makes clear what they think they can and cannot do during this so-called 30-day ramp up. Because the Supreme Court said section two of a three-section order is not in effect for 30 days. But there are two other sections of that order.
The other thing that the government said at the hearing was, “We are going to oppose class certification.”
Andrew Weissmann: So, that is actually a perfect segue to Maryland, because in light of everything that we’re seeing, the idea of denial of due process, of removing people quickly, of once they’re removed saying, “Our hands are washed of it,” you have ample reason for a court to issue sort of a standing order. And it’s a standing order that’s not some permanent injunction. It is what Amy Coney Barrett is a real fan of and has coined as sort of this “administrative stay to give the court time to consider.”
And as you said at the outset, it’s just two days. And the chief judge issued it on behalf of the whole court, saying there’ll be this two days only where someone’s actually filed to say that they’ve got some legal claim. It’s not just applying willy-nilly to everyone in the world. Instead of doing it case by case by case by case, it’s like, “This is standard procedure. It’ll apply to everyone.” God knows there’s a ton of reason. Then he actually issued an amended order sort of amplifying the reasons.
Normally, and this you’re an appellate lawyer at heart. And I think of you that way mostly because I’m not.
And what I don’t understand is the normal way, when a judge issues an order, if you don’t like it, is not to sue the judge and say, “I want to recuse the entire district and I want a judge outside of the district to decide this,” which, by the way, is what’s going on. What happened to appealing?
Mary McCord: That’s right.
Andrew Weissmann: Like, wouldn’t you normally appeal this to the court of appeals?
Mary McCord: Yes, because there are times when people do challenge standing orders. These are things, you know, honestly, when I first started practicing, this was not so much a thing. But many courts now, individual judges have standing orders for how they want things done in their courtrooms. Sometimes there are standing orders that apply to all the judges, like the one we’re talking about here.
And it can be things like, we actually have a judge that said, “In your briefs, you can’t have any footnote that’s longer than five lines.”
Andrew Weissmann: I love it.
Mary McCord: Yes.
Andrew Weissmann: I love it.
Mary McCord: It was hard, though. We just filed a brief and we’re like, “Oh, we can’t say those extra three things.”
Andrew Weissmann: It can be more serious, too. It can be things like, you know, t here’s a standing order with respect to Brady discovery. That is the government’s responsibility --
Mary McCord: That’s right
Andrew Weissmann: -- in terms of when they expect to have information turned over from the government to the defense. Individual judges have standing orders, different, sometimes districts have standing orders on things that are quite significant. Here, this just seemed like, kind of like a bit of a no-brainer. And this goes back to something, Mary, you and I talked about.
What’s the big deal? You should be giving these people due process anyway. Like, they’re filing. You have to respond. So, this is just such an affront to this idea. And I think part of it is that they’re sort of egged on by decisions where the court is giving them things that I’m not sure they thought they were going to get. Like, going back to the Trump immunity decision, not saying a word about birthright citizenship. Like, why isn’t the majority upset about the fact --
Mary McCord: It’s about to rein in, yes.
Andrew Weissmann: It’s like, excuse me, why didn’t you bring the whole case before us?
Mary McCord: Yes.
Andrew Weissmann: You’re saying that you’re going to decide things really quickly. You want us to decide things really quickly. Well, how about bringing the merits to us?
Mary McCord: Yes, yes. Now, to be clear here, what the government is saying is these are essentially injunctions when you’re saying a two-day stay of deporting anybody and you haven’t complied with any of the requirements for injunction, any of those factors we were just talking about, right? Likelihood of success on the merits, irreparable injury. And the court is saying, we’re doing this in part to preserve our jurisdiction because you’ve been removing people, extracting them, in your words, so fast that courts aren’t even able to rule. And this is just to preserve --
Andrew Weissmann: Exactly. And Amy Coney Barrett has actually said in describing them that it’s not the same standard as, like, a TRO or a preliminary injunction because they’re so short in duration. It is really about just giving a temporary stay for the court so that the court has an ability to do it.
Mary McCord: That’s just to say there’s legal arguments you could deal with there, right? It’s not like this is just completely, you know, but what’s different about this is this mechanism of doing it. Let’s sue every single judge in this district because we don’t like the fact that they’re taking some time, taking a beat, so that we can actually provide due process to people in court.
Andrew Weissmann: Two days. Two days.
Mary McCord: Yes, two days. And something common, like I said, in other courts, doing similar things. In fact, in the hearing on birthright in I think, New Hampshire yesterday, the judge says, “We have a standing order that nobody would be deported with less than two days’ notice.” And will the government abide by that before this ramp-up period?
So, anyway, these are common things. And it really seems to me, at least, that this is just another big attack on the authority of the judiciary, a way to try to marginalize the judiciary and get them out of the government’s way.
Andrew Weissmann: Yes.
Mary McCord: And, unfortunately --
Andrew Weissmann: No question.
Mary McCord: -- things in the Friday decision really lend some heft to that argument.
Andrew Weissmann: Absolutely.
Mary McCord: So, we’ll follow that.
Andrew Weissmann: Let’s take a break and come back. And we want to talk about, sort of, immigration and ICE tactics. And a lot of people have asked me questions about how does this work and how is this consonant with the law. I want to give, like, a little bit of a primer on that so that people can understand, sort of, what the rules of the road are supposed to be so they can assess when they’re reading about ICE tactics whether it is or is not within the law.
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Mary McCord: Yes. That sounds good.
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Andrew Weissmann: Okay, we’re going to talk about ICE. As we talked about ICE as doing all sorts of raids, stops, et cetera, I wanted to just stop for a moment and talk to you about when you’re reading about ICE stopping people. Let’s take for a moment this idea that they’re stopping cars with people in them. Here’s the general rules. And this is, like, welcome to Fourth Amendment law. But, generally, if you are going to arrest somebody, you do not need to have a warrant. In other words, you don’t have to go to court and then get a warrant beforehand.
But if you’re going to arrest somebody, you have to have probable cause. That is, you have to have a factual predicate for why you’re arresting them, what crime did they commit, or what immigration offense is there. If you are doing, sort of, what’s called a temporary stop, it’s actually in a case called Terry v. Ohio, which allowed --
Mary McCord: Stop and frisk.
Andrew Weissmann: Exactly. It allows you to stop and it allows you to do a sort of frisk of outer clothing for weapons. But it’s temporary and it’s sort of that temporary seizure and it’s a temporary search. There, you need to have reasonable suspicion. Again, you need to have factual predication. It’s less than probable cause, but you need to have some reasonable suspicion of a crime and reasonable suspicion that they might have a weapon. And so, those all are things that would need factual predication with respect to the person. What is going on? You can’t just pull over a car because you think they might be illegal immigrants.
Mary McCord: Undocumented.
Andrew Weissmann: Undocumented, exactly. That’s the right word.
The only time that you can pull over sort of cars on a sort of roadblock where you have no factual predication, no probable cause, no reasonable suspicion is when there’s like a roadblock that is not for law enforcement purposes. For instance, if you’re just concerned about are people drinking and driving, but you’re just concerned about safety of the roads, but you’re not trying to arrest people. You can have a roadblock for a non-law enforcement purpose. You’re not trying to arrest people. And here’s the kicker. You have to have a routine selection process. Like you’re stopping everybody or you’re stopping every fifth car. You cannot be that you’re stopping this person because they don’t like the way they look.
Mary McCord: That’s right.
Andrew Weissman: So that if you don’t have factual predication, what does the work there? The court’s going to say you can just do this without any factual predication, anything that you know about the person you’re stopping. It has to be routine. There has to be a set way. The sort of typical way that’s done is we stopped all cars or we stopped every fifth car. So there’s no discretion going on with the police.
Mary McCord: Okay, how about, though, when there has been a traffic violation?
Andrew Weissmann: So just to be clear. So if you just read about a case where it’s like we just pulled this person over and they’re not saying that they had probable cause or reasonable suspicion and it’s almost certainly not going to be a roadblock, then there’s going to be a Fourth Amendment problem. Right? There is a seizure going on that required that factual predication. And so, there’s a real concern.
Now, Mary, one of the things that happens is something called pretext stops and federally you’re allowed to do what’s called a pretext stop. And that is, let’s say you follow a car and --
Mary McCord: It turns without putting its blinker on.
Andrew Weissmann: And I’ve I had a case like this involving the Colombo family where there was a war in the Colombo family and the FBI and local law enforcement went follow these hit teams in the Colombo family. And they waited until they committed a traffic violation. They saw that actually is the probable cause. Remember, I said you need probable cause. So the probable cause was --
Mary McCord: That’s right. The probable cause that a traffic law was violated.
Andrew Weissmann: Exactly. And then you look to, in our case, New York law, New York law said for a traffic violation, you could actually stop the car and you can actually issue a ticket and you could actually arrest the person.
Mary McCord: Which also means you can ask for their identification.
Andrew Weissmann: Exactly.
So there are all sorts of things that happen. So you can use those traffic violations as a pretext because that’s what you are hoping to find. Like just take the Colombo cases. You were hoping to disrupt a war between two factions, the family where they were running around killing each other. That’s sort of the most benign example.
Mary McCord: Yes.
Andrew Weissmann: But you could have non-benign where you basically are essentially selectively enforcing the law.
Mary McCord: And so, what the Supreme Court said in that case called Whren is as long as there is like an objective probable cause of a traffic violation, that stop is okay, even if, you know, the officer was really like, I think that person might have drugs in the car. And when you do see, and we’ve seen challenges sometimes, there will be a challenge made saying, look, how come all of the statistics are that all the traffic stops are against like black people in this particular city? Do white people not make traffic violations? And, you know, there have been challenges that have been trying to be brought systematically in those situations.
But it’s tough, right, because you’ve got to have a lot of data to prove up that the government is selectively enforcing these traffic laws. Okay, so that’s our background to what’s happening now. So what’s happening now is we’re seeing traffic stops made in the hopes, I think, that the people once they’re stopped and are providing identification will reveal that someone is undocumented and then will be deported. And you might be saying, but hang on a second. I thought that our local police and our highway patrol, who typically are the one conducting traffic stops, cannot enforce immigration law.
I thought, because I’ve listened to this podcast and read lots about this, that the Supreme Court said many times federal immigration law is for federal officers to enforce, not state and local. And that would be true, except when there is something called a 287(g) agreement. That is an agreement under a statute by which a state or local law enforcement can enter into essentially a contract with the federal government, with the Department of Homeland Services, to be in some ways, I’m going to use this kind of colloquially, deputized to be ICE agents. And with proper training and with proper support, and there’s some a bunch of hoops they’re supposed to jump through, query whether they’re really jumping through those hoops right now or not, then they actually can enforce immigration law. And that’s what we’re seeing happening.
It used to be just a very few local or state police had these agreements with the government. The government now, in this new administration, is putting enormous pressure on state and local officials to enter into these types of agreements. And that’s why we’re seeing, in places where these exist, this traffic stop used as a real way to ferret out undocumented individuals to try to meet that 3,000 deportation a day goal that Stephen Miller has imposed. I mean, he doesn’t have authority to impose, but he’s the one who came up with it. And that’s what I think that our ICE agents are feeling like they are supposed to be achieving.
Andrew Weissmann: And this is one where the tool has been blessed in the sense that, yes, feds and state officers, there’s ways that they can work together. Yes, the Supreme Court has blessed the idea of using pretext stops. I’ve given you an example of ways in which it actually seems pretty benign, but there are, obviously, ways in which it’s not. So a lot of this is about tools that can be abused. It’s not so much the law structure, and it tells you that you really need people with judgment and good faith figuring out how they’re going to do it. But you’re going to read over and over again about things where either they’re pretexts, which are allowed, but you’re going to see and I was reading The Washington Post had a really good article on this where they had all sorts of specific examples.
Assuming the reporting is accurate, I’m like, that’s a Fourth Amendment violation. You’re not allowed to do that.
Mary McCord: This 19-year-old student, scholarship student, been here since she was 4 years old, was stopped for supposedly making a right turn on a red light, put into detention center for two weeks. And guess what? Oh, that wasn’t her truck that made the right turn on the red light. That was a different truck that made that right turn on the red light. So there’s those kinds of mistakes too. That same article, just so that people get a sense of how many more of these agreements there are, at the time that Biden left office, there were 135 of these 287(g) agreements. Today, more than 700 in 40 states, a 419% increase in just five months.
Yes, these are legal methods, but this is like, that’s the pressure that the administration has put. But this is very different than the other thing we’re seeing about ICE raids in different kinds of companies and businesses, because there, we’re talking about a situation where there needs to be a judicial warrant to enter into private spaces.
Andrew Weissmann: Or consent.
Mary McCord: Or consent.
Andrew Weissmann: Or consent from the organization. You just can’t go into a private space because guess what? That’s a search.
Mary McCord: That’s right.
Andrew Weissmann: These places are 100% protected by the Fourth Amendment. And as is everyone who’s listening to this, and by the way, the Fourth Amendment applies to everyone in the United States. It does not matter whether you are foreign born, whether it doesn’t matter whether you’re documented, undocumented, everybody is protected by the Fourth Amendment if you’re geographically in the United States, at least so far. That is what the rule is. So they don’t just bang down the door of some company.
Now, admittedly, some companies will be like, you can come in.
Mary McCord: That’s right.
Andrew Weissmann: But if you don’t have that, you need to have some factual predication. And there, just to be clear, unlike arresting somebody, to do a search absent some exigency, you need to have a search warrant. That means that a court has to have given approval to go in. And here, I mean, good luck with the exigency. I don’t see that applying. And so, you’re not hearing about them having a warrant in all these situations or having consent in all of these situations.
Mary McCord: That’s right. And, you know, people might be saying, well, what about the public places, like the public area of a restaurant or the public area of a car wash where anybody can be there? True, you don’t need a warrant just to go into that public area, but you don’t have any basis for asking people for identification and requiring identification from people with, again, no particularized factual basis and probable cause with respect to that person. That’s now the individualized part of the Fourth Amendment.
But what’s tough here, right, is if you do have undocumented workers, let’s say at a car wash or in the parking lot of a Home Depot who are day laborers, they’re not in the best position to be saying no and challenging this, right? They’re worried about not complying with the law. They’re worried about being deported. And so, it’s they are in sort of the least able position to challenge. Now, obviously, when someone gets put into proceedings, their lawyer may say, hey, you didn’t have any warrant to even require this person to provide documentation.
But that’s still, this is an overworked system with numbers that are really high, with rapid proceedings that ICE is trying to engage in for rapid deportations. And it’s just a difficult environment for challenging some unlawful activity.
Andrew Weissmann: Also, I think there is an argument for when law enforcement goes into a restaurant or into a car wash, but their purpose is to go there to do law enforcement. The court has actually said that that’s a sort of different issue. When the court, for instance, said, you know, anybody can go up to a home and knock on the door and ask a question of the person. But if you’re going there with intent to like have binoculars and look into the house, that’s not the sort of consent that you were given. It’s not like giving consent to Boy Scouts and Girl Scouts and the mailman or mail person to go in.
And so, the idea that just because it’s open, it doesn’t mean it’s necessarily open for all purposes. That’s just to get into the weeds. If you want to know what Mary and I do for a living, I wanted to briefly, but we’re not going to have time to go into it. But I know people probably are listening to this, have heard about a memo that just got sort of publicized from June, where the Department of Justice, and particularly, the Civil Division is going to be looking at denaturalization. And we’re going to do a bigger, deep dive on that. And just on the wave tops, there’s nothing, again, unique about the idea of denaturalization proceedings if somebody has lied in a material way to get their naturalization papers.
I mean, if you clearly are lying and say, “I’m not a criminal,” and it turns out you were a criminal, there’s a way to reopen that. But the wording of this suggests that it may be abused, that it’s for categories that don’t seem obvious. And also, I just want to make sure people understand, the Supreme Court has said, once somebody has their naturalization papers, that it requires clear, unequivocal, and convincing evidence to take it away.
So, this is going to be like the next frontier is going to be this issue of the government trying to sort of re-litigate people’s naturalization, as if that’s like the thing we most have to worry about.
Mary McCord: Yes. I think that this memo is very confusing. This is part of a civil enforcement memo put out by the Assistant Attorney General for the Civil Division about various priorities. And it’s not just all about denaturalization, but one of the priorities is to use civil denaturalization provisions to revoke citizenship when the conditions are met. And that, as you indicated, the statute’s very specific. It doesn’t say you can denaturalize somebody and take away their citizenship, and these are for naturalized citizens, I should say, not for U.S.-born citizens. The statute that allows for denaturalization is only for those who were naturalized.
The statute, though, is very specific, as you indicated. Citizenship can be removed through a legal proceeding if naturalization was illegally procured or procured by concealment of a material fact or by willful misrepresentation. And so, that doesn’t mean that you get naturalized, you commit a crime, we can denaturalize you.
Andrew Weissmann: Exactly.
Mary McCord: It doesn’t mean you get naturalized and, you know, submit a fraudulent tax return and we can denaturalize you. You have to have lied or concealed material facts at the time you applied for naturalization. Yet the priorities in this memo could be read two different ways. Every single list of 10 different priority cases are just, here’s one, cases against individuals who further the unlawful enterprise of a criminal gang, transnational criminal organization, drug cartels, cases against individuals who commit human trafficking, sex offenses or violent crimes. What it doesn’t say is if they did those things before they were naturalized and lied about on their naturalization papers.
Now, we can read this saying, oh, well, we’re assuming that’s the case, and these are the ones you still want to prioritize. But if you read it, I think people could be thinking, wait a minute, is the government going to try to denaturalize people for crimes committed after they became naturalized? Now, we could say we don’t want human traffickers or sex offenders to be naturalized citizens. Sure. But that’s not the way the law works. We have a remedy for that, which is called criminal prosecution, proof beyond a reasonable doubt of commission of a crime. And then we have a sentencing mechanism for that.
Andrew Weissmann: Exactly. And now the statute has all sorts of presumptions and time periods. So like if you commit the crime, certain crimes, you know, sort of within a certain time period of after becoming naturalized, essentially, that’s like a presumption or a rebuttable presumption of like it means you may have been doing it before.
Mary McCord: For gang membership, not for other things. But yes.
Andrew Weissmann: Yes, exactly.
Mary McCord: It’s interesting.
Andrew Weissmann: To me, this is clearly going to be the next frontier. And this is said by two people who were prosecutors for a really long time. And I was a defense lawyer. And that’s these people are entitled to the law. And you know what, if, in fact, you lied in your application, it could be shown by clear, unequivocal and convincing evidence, those are the terms from the Supreme Court, and it was material lie, it can’t be an immaterial lie. Then fine, they can do that. And by the way, that has happened. For instance, this idea of denaturalization, to give you the most benign way, came up in connection with Nazis who had come to this country and lied about their history. And so, this was used.
And there also are historical examples that are not so nice, which has to do with communism. It’s a little bit like when we talked about sort of car stops, a lot of this has to do with judgment. It’s not the tool itself.
Mary McCord: It’s how it’s being used.
Andrew Weissmann: Yes. So maybe that’s a good ending point to, Mary, you wanted to talk about something that’s like quickly that’s on your mind that may have gotten a little less attention it deserved. I have a little thing to what should we do? There’s quick hits.
Mary McCord: Yes. Quick hits.
So some may have read, we know that there’s been a lot of attacks on universities, Harvard and the administration have been doing battle now for months. Something that broke late last week was that the university president of the University of Virginia, Jim Ryan, was basically pressured by the Department of Justice to resign in order to resolve what they had opened as a civil rights investigation into whether the university had actually eliminated DEI programs from the university. This is a public university in Virginia, very, very highly rated. Full disclosure, two of my three kids graduated from UVA. I’m a big fan of UVA. But why I think this is material is if there’s a civil rights investigation, then there are defenses to that civil rights investigation. And that is something that the university, if it’s a legit investigation, could have defended itself on.
But at least what has been publicly reported is that the civil rights division, two people at DOJ who actually are UVA grads who are not fans of President Ryan, Jim Ryan, essentially said, if you get rid of him, we’ll drop this investigation. That’s what’s being publicly reported. And that kind of puts the lie to, well, were there any civil rights and violations? Or is this just a cudgel, a way to get rid of somebody who you don’t think is adequately getting rid of DEI?
I think that’s a big deal because it’s about targeting a person and using tools, back to your point about tools, civil rights investigation, to get a result that you want.
Andrew Weissmann: Just to be clear, fraud section, I was ahead of it. We had organizational cases all the time. Under Republicans and Democrats, the one thing you don’t do is you don’t say, by the way, I want you to get rid of this person and this person, this person. That’s up to the private industry to decide. That is not for the public government to decide. And you know who thought that more than anyone is Republican administrations. That is an abuse of your role in government to tell them what to do.
Mine. This was a little while ago, but I want to put attention to it because it’s going to keep happening in my view. Ashli Babbitt. She was somebody who was shot by the Capitol Police, I believe, and she participated in the January 6th riot.
Mary McCord: Shot breaking through a window to get to members of Congress. Yes.
Andrew Weissmann: So she was doing that and she was shot. She died. Her family brought a lawsuit against the government and the Department of Justice settled that for $5 million. Now, to be clear, just because somebody was participating in a crime or doing something improper doesn’t mean that the police gets to shoot them. So it’s not like, in and of themselves, just because any situation like this, that the person doesn’t have a claim, the police can’t overreact. But here the police said, I had no idea whether she was armed or not. The claim that she wasn’t given notice to stop seems fanciful to me because she and a mob were breaking down doors and everybody knew you couldn’t just break into the Capitol.
So it’s not clear that this would have been in another administration, the result here, as opposed to giving her money because the president has sort of called her out as sort of some white knight of any heroine of the January 6th events. And as you know, there are many other January 6th defendants who are now seeking compensation. And is this basically the canary in the coal mine for what we’re going to see, which is our tax dollars going to criminals who already have the benefit of receiving presidential pardons or commutations for engaging in an insurrection?
Mary McCord: Yes. So we will see because there are more cases.
Andrew Weissmann: Okay. Thank you for listening.
And remember, as I said at the outset, you can subscribe to MSNBC Premium on Apple Podcasts to get the show and other MSNBC Originals ad free. And you’ll also get subscriber-only bonus content like the really terrific discussion that Mary and I had just yesterday with Tess Bridgeman.
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Mary McCord: This podcast is produced by Vicki Vergolina and Max Jacobs. Our intern is Colette Holcomb. Bob Mallory is our audio engineer. Bryson Barnes is the head of audio production. And Aisha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: Search for Main Justice wherever you get your podcasts and follow the series.