This week’s episode begins with a Supreme Court decision to allow the deportation of eight migrants to South Sudan without due process, despite it not being their country of origin. And after a comparative review of the new beefed-up ICE budget and what it means for deportation operations moving forward, Andrew and Mary spotlight the latest from Kilmar Abrego Garcia’s civil and criminal cases. Also not to be missed: the newly disclosed letters Attorney General Pam Bondi sent to tech firms assuring them they would not be penalized for supporting TikTok operations in the US, despite a federal ban. Plus: how a pardoned J6 defendant received a life sentence for plotting to kill the agents who investigated him, and what led to FBI agent Michael Feinberg’s forced resignation.
Further reading:
- Here are the letters sent from Attorney General Pam Bondi to Google, Apple and Amazon, among others.
- And here is a write up from former FBI agent Michael Feinberg, explaining his coerced resignation.
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Note: This is a rough transcript. Please excuse any typos.
(Music Playing)
Andrew Weissmann: Hello and welcome back to Main Justice. It is Tuesday morning, July 8th. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi Mary.
Mary McCord: Good morning, Andrew. How are you today? How was your holiday weekend?
Andrew Weissmann: It was great. It was great. Although, I ran into this lovely couple and they said they were from Alabama. And they said, we’re blue voters in a red state. And they said that July 4th was very, very hard for them because they said we love our country. We know you love your country. And they were so upset about what was happening. And I think that could be true regardless of whether you’re a blue voter in a red state. I have so many friends who are Republicans and as we talked about, there’s so many things that are going on that on a bipartisan level are upsetting. Because if you just believe in the rule of law, which should be a bipartisan issue, I think it makes July 4th sort of difficult.
Mary McCord: I agree. I had very mixed feelings about July 4th. So we left D.C. for the weekend and went hiking.
Andrew Weissmann: It’s sort of interesting. Was it the transcendentalists who there really is something to back to nature and it’s very restorative. And I know for a lot of people listening, it’s great that they’re engaged and focused, but it’s also really important. Either before, during, or after you’re listening to this podcast and staying engaged to take time. But with that--
Mary McCord: Yes. No, now we’re right back at it. Yes, we’re going to cover a lot.
Andrew Weissmann: Exactly. So Mary, what do we got? I know we have a lot on our plate. In fact, speaking of July 4th, in our first segment, we are going to talk about really, I would just say, something of a fiasco that is happening when it comes to the deportation and removal situation in multiple cases, one of which, frankly, blew up and had hearings on July 4th. And that was the fallout from the Supreme Court’s stay of the injunctions that required due process for third country removals. And the July 3rd ruling in that case related to those who had been extracted from the country, sent to South Sudan, intercepted before they got to South Sudan by a judge, and joining their removal to South Sudan without due process. They’d been sitting in a, basically, I think some type of a container or a boxcar in Djibouti for the last couple of weeks. And the Supreme Court cleared the way for them to be removed to South Sudan. And they were, in fact, on July 4th. On July 4th.
We’ll get into how all that happened and some other developments in the Abrego-Garcia case, in the JGG cases. So, we’ll talk about that.
Andrew Weissmann: Mary, can I just say on that one thing? I think just to pull the lens back, we’re also going to sort of put that in context of what we see happening as a result of the budget.
Mary McCord: Oh, yes.
Andrew Weissmann: Sort of how that’s going to relate to all the things we talk about, because it’s going to be on steroids.
Mary McCord: Yes. We are going to also talk about, it was revealed, I think it was over the weekend, through FOIA requests, a whole series of letters that the Attorney General has sent out to various Internet service providers. Basically, this all is follow-up from the TikTok ruling. Remember, the Supreme Court upheld the congressionally passed law, and signed by Joe Biden, that said that TikTok would basically not be available on U.S. carriers. U.S. carriers could not provide that as a matter of national security. And Trump didn’t like that so much. And so, the Attorney General has basically told the providers who would be impacted by this law, don’t worry about it. We’re not going to enforce this law. And in fact, we are irrevocably saying anything you have done to violate it, you will not be prosecuted for. So, it’s pretty unusual.
Andrew Weissmann: Yes, it is. And actually, I’m looking forward to that because, you know, we’re going to give the exact language because this is language from the Attorney General of the United States. So, we’ll cover that. And then I think we’re going to end with something kind of close to my heart.
Mary McCord: Yes. What’s happening at the FBI. And you know, it also relates back to our first topic because some portion of what is happening at the FBI is because of the mass diversion of resources to immigration enforcement. And some portion is because there is a lot of politicization going on right now and people being fired or basically coerced into resigning upon threat of demotion because of their perceived political ideology. And it’s really sad to see the expertise that is walking out the door. And I think it’s also dangerous. So, we will end with that.
But let’s get back to topic one.
Andrew Weissmann: Which is sort of a potpourri of immigration.
Mary, do you want to sort of set up where we were? The Supreme Court had issued a decision that, as you said, said, you know what? These deportations to a third country, people who had had deportation orders, but they now are being sent to a third party. And the question was, should they have an opportunity to say they fear persecution if they go there? And should they have an opportunity to be heard? The district court has said, yes, they should be able to make the claim. And that seemed like a perfectly good argument. And the Supreme Court had said, we’re sort of lifting that injunction. We’re staying that injunction. So, there essentially is no injunction in place so that there isn’t going to be that opportunity.
But then there was this wrinkle that happened. And one of the key things is that the Supreme Court, when they said, we’re lifting that injunction, we’re staying it. Essentially, they gave zero reasoning.
Mary McCord: Zero reasoning. That’s right. And that was back on June 23rd. And that prompted, I think, like a 19-page or something like that dissent by Justice Sotomayor, joined by Justice Jackson, Justice Kagan. But there was something, the wrinkle you’re talking about, is even though the Supreme Court staged the general injunction saying, “No deportations to third countries without due process” the judge in that case, in Massachusetts, Judge Murphy, he had already been in proceedings requiring those people who had been removed supposedly to go to South Sudan, but that removal had been intercepted by his order midway through. The plane had been landed in Djibouti. Those detainees have been in Djibouti. The judge had ordered that they be provided due process before they go to South Sudan. And he said, “That due process can be in Djibouti, or you can bring them back here. I’ll leave that up to you, government.”
So after the Supreme Court stayed his prior injunction, because that plane that took off headed to South Sudan was after an injunction by Judge Murphy saying, “You’ve got to provide due process.” So that was already in violation of his injunction. So Judge Murphy, after the Supreme Court stayed the injunction, said, “Look, my order with respect to these individuals who are now in Djibouti, my order still remains.” That’s when the government ran back up to the Supreme Court, didn’t even stop in the circuit court, just went straight back to the Supreme Court saying, you’ve got to clarify, Supreme Court, that when you stayed that injunction, you also meant everything flowing from that, essentially. And so, Judge Murphy--
Andrew Weissmann: By the way, one quick thing is, they say we not only want you to clarify, but when you clarify it and say that you have to stop everything, when you send it back, throw him off the case.”
Mary McCord: Yes. And they accused him of judicial activism, et cetera, et cetera. And he was just making clear because, of course, the Supreme Court order hadn’t been clear. And normally an order--
Andrew Weissmann: Unclear. It hadn’t been--
Mary McCord: Yes. It hadn’t had any--
Andrew Weissmann: Literally just to make sure everyone understands. No reasoning.
Mary McCord: No reasoning. No reasoning at all. But nevertheless, July 3rd, a majority of the court did issue this supposed clarification. The motion for clarification is granted, says, our June 23rd order stayed the April 18th preliminary injunction in full. Therefore, the May 21st remedial order. That was Judge Murphy’s order saying, “You’ve got to provide process to these eight people you tried to send to South Sudan,” the Supreme Court says, “cannot now be used to enforce an injunction that our stay rendered unenforceable.”
Now, some people might say, that doesn’t seem that crazy, right? If they stayed a preliminary injunction, then some people might say, well, wouldn’t it make sense then that even whatever the government was doing in violation of that injunction shouldn’t be in violation anymore because that injunction has been stayed? And, in fact, that’s essentially what Justice Kagan said.
Andrew Weissmann: Yes, I actually agree with Justice Kagan. I mean, I think that if you violate a court order, you violate a court order, and that is something that can be sanctioned. But if you are trying to get someone to comply, if the thing that you’re doing is saying you have to do X to comply with an order, if the Supreme Court has taken away the underlying order, then you can’t be seeking to enforce it. All you can be doing is if somebody actually violated it, then that is a separate offense. And that’s the difference between when a judge says you have to do something, you have to do it. And if you don’t do it intentionally, you can, essentially, it’s like a criminal violation. It’s like you have violated that rule, and people want you to comply, and your remedy is to go to an appellate court and get it changed. And that can happen.
And then you can’t be required to comply with it, the old order, but you still could be sanctioned because they don’t want you taking the law into your own hands, essentially. And so I sort of ended up where Justice Kagan is. The dissents, I thought, in many ways--
Mary McCord: They’re making, in many ways, a different point, right?
Andrew Weissmann: Yes, exactly. They, in many ways, were going back to the merits, which, by the way, I totally agree with them. By the way, so did Justice Kagan. They were like, what do you mean no due process? I mean, I still don’t understand how the Supreme Court majority is providing due process. I mean, essentially, what the government argued, and presumably what the majority of the Supreme Court agreed with, is that the government is entitled to make sort of sweeping generalizations that they, on their own, can talk to the third country, get assurances that they won’t persecute the whole group of people. And the whole point of due process, though, is what about the individual being able to say, I don’t trust that the government has done that, or that it would even apply to me.
Remember, the country doesn’t know who’s going to be sent and who’s going to be there, and they could be like, oh, wait a second. This is somebody who we have a different view of. And so it really just denies due process to that person. It basically says the government can sort of take this broad brush and you don’t have a role in it.
Mary McCord: Yes. Trust us. We got assurances. They’re not going to be persecuted. So they don’t need due process anymore. They don’t need the opportunity to come into court and argue that they could be persecuted or tortured.
Andrew Weissmann: We gave you the due process, without you doing anything.
Mary McCord: So that’s when you hear Justice Sotomayor, in her dissent, say things like, “What the government wants to do, concretely, is send the eight non-citizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death. In simple terms, the government requests that the court remove an obstacle to its achieving those unlawful ends.” That obstacle being Judge Murphy’s order to give them due process either in Djibouti or back here.
And that’s what she’s saying. And her dissent goes through all of the times that the government violated Judge Murphy’s orders, even before the Supreme Court ever stayed his injunction. The government, multiple times, violated. This is a case, remember, we talked about some time ago. It started off with someone being removed to Mexico, where there’d already been an adjudication that he couldn’t be removed there. And eventually, they brought him back, a third country, not his country of origin. And so, this is a case where I think what she was trying to point out is we right now are having a lawless government that is just violating court orders. And when the courts rule against them below, they run up to this court, the Supreme Court, and when you give them what they want, you’re essentially telling them, as she says at the end, “Today’s order clarifies only one thing. Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
That order we’ve just been talking about is what then caused attorneys on July 4th to file a new case, actually in D.C., not making the third-party removal due process claim, but saying this is punishment in violation of the Fifth and Sixth and Eighth Amendments. And for that reason, a separate reason, the government should be enjoined from actually sending those people to South Sudan.
South Sudan is a place, remember, where the State Department has said, do not go there. There is massive violent crime. There are rapes. There are murders, et cetera. Do not go there, United States citizens. And so, they filed that case in D.C. The judge held a hearing at 12.30 on July 4th, then decided he probably should transfer that case to Judge Murphy in Massachusetts. He transferred that case to Judge Murphy. Judge Murphy then said, I feel like this case is still basically asking me to revisit things I’ve already been reversed on by the Supreme Court and did not issue the injunction. And I think at about 7:00 p.m. on July 4th, those men were flown to South Sudan.
Andrew Weissmann: So, Mary, let me tie that in to the budget, because the concern is that, what you’re describing, is that we’re going to see that a lot more. And just so people have an idea, the normal budget for the FBI, which is a huge agency, and as lots of people think is the preeminent law enforcement agency federally, the budget is about $10 billion. For DEA, it’s about $3 billion. For ICE, it was about $8 billion. The new budget, the sort of Big, Beautiful Budget Bill, has for immigration in total about $170 billion. That’s with a B. There are huge chunks, about $45 billion, that relate to the wall. But there’s also $45 billion, and again, I’m giving gross numbers.
Mary McCord: These are with a B, everyone. With a B.
Andrew Weissmann: With a B, that relate to the detection and enforcement activities of ICE. And you could go on and on. There’s about $30 billion, $29.9 billion that go to hiring at ICE. They want to have the number of detention facilities and the bed space metastasized.
Mary McCord: More than double.
Andrew Weissmann: And you have to ask yourself, when you build it, it’s like, when you build it, they will come. It’s like, this is when you build it, they will extract. And so, you’re concerned about Korematsu on steroids. Korematsu is the hideous case, a case that has been overruled recently by the Supreme Court, where we interred Japanese-Americans during World War II. And the issue is whether we’re going to see a repeat of internment camps in this country with this influx of cash and agents without necessarily the training and concern about due process rights, the things that also seem to be getting blessed by the courts, which is, again, shocking.
Here’s one little tidbit, Mary, before we move on to Abrego Garcia, on the funding part. It gives you a sense of, I think, how out of control Congress was in passing this. They wanted to have the fee for seeking asylum, they wanted to make it so prohibitive that the average person couldn’t actually seek asylum here. And they wanted the cost of an asylum application to be $1,000. That was only procedurally blocked by what’s called a parliamentarian, that it wasn’t something that could be done by a majority vote.
But they still managed to put into the bill so that that fee structure is now back to a hundred. But they still put in something I think, very pernicious which is an immigration judge rules that if you want to appeal that, it is now not $100, it was actually $110, it is now $900. These are poor people.
Mary McCord: Right.
Andrew Weissmann: And so, what you’re really saying is we are going to, I mean this is it is so Dickensian, that this is like debtors prison and it goes against just be a nerd, it’s like the whole idea of Gideon V. Wainwright which is that we’re going to provide you counsel. This is we’re going to jack up the fees to make the cost of entry something that poor people can’t do. And you know this is like you think about Emma Lazarus and the famous poem that is on the Statue of Liberty about give us your poor your huddled masses. This is the end of that poem under the Trump administration is not.
Mary McCord: Yes, and you know this actually relates back to what we talked about when we were talking about the birthright citizenship opinion on universal injunctions, and Justice Jackson talking about what we’re creating here is a multiple tier, and there I know there are plenty people would say we’ve already had a two-tier system of justice, but really making it like you have to buy your way into the courts, right? If you cannot pay, you might not get represented, you might not get your case. Because in case of universal injunctions, right, people could benefit from an injunction that applied to everyone. Every individual did not have to get a lawyer and go into court to bring a case and here, of course, plenty of people are just not going to be able to take that appeal if they cannot come up with $900 they’re not going to be able to take the appeal.
So those who may get relief, because certainly many courts may agree with the people taking appeal, those who get relief will be those who can afford it and it’s very troublesome and it’s also troublesome that when we’re talking about over 100,000 detention beds, we know already that so many of the people who are being scooped up in these ICE raids are not the people that the president said during his campaign he was going to focus on, people with serious criminal charges against them. We’re talking about people with no criminal history at all or if they have anything, it’s like a traffic offense. So that’s who we’re talking about housing in these detention centers.
Andrew Weissmann: Mary, perfect segue. Why don’t we take a break and come back and talk about the latest with respect to Mr. Abrego-Garcia because there’s a lot there that, again, is so telling, in terms of him and in terms of what this administration is doing.
Mary McCord: That sounds good.
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Mary McCord: Okay. Welcome back. Let us move to Abrego-Garcia. Folks will remember that, of course, he was, ultimately, brought back to this country from El Salvador only to face immediately charges, criminal charges of alien smuggling and other things which we have discussed. A magistrate judge in that criminal case said there was not enough evidence to detain him pretrial on the criminal case. The district court judge, because a magistrate judge is actually a lower court judge than the district court judge, the government has appealed that to the district court judge, the district court judges still has not made a final decision about whether he should be released from pretrial detention and a lot of these judges have been trying to figure out well what’s going to happen if I do release him? Is he going to go immediately into immigration detention because the government has at some time, said to the courts, yes that’s what would happen.
Will he be deported? The government, I think you talked just last week, Andrew, about how the government had said yes, he would be deported. And yet, now, it feels like we’ve got government attorneys in one court saying one thing and back in the Maryland court, where the original case about Abrego Garcia’s removal to El Salvador is still pending, lawyers for the governments are saying another thing.
Andrew Weissmann: Yes, so there are two cases. There’s that criminal case, but that case started as a civil case, which is when Mr. Abrego Garcia’s wife filed suit on his behalf because he, of course, was just extracted with no notice and said he shouldn’t have been removed. And so, the civil case has been pending –
Mary McCord: In Maryland.
Andrew Weissmann: -- in Maryland, and the judge has been also concerned about did you violate my order. And Mary, I can’t even keep track of the number of conflicting representations.
Mary McCord: I know.
Andrew Weissmann: But the government has said no, no, no, we brought this criminal case, we’re going to try him on it.
Then they seem to have also said no, no, no, we’re going to try him on it, except if you release him, in which case we’re going to deport him and we’re not going to try him on it.
Mary McCord: That’s right.
Andrew Weissmann: And so, it’s just head spinning and that is if you want to know sort of one of the latest, if like there’s like for people who are listening to this going, I don’t get it, you’re being confusing. That’s the point.
Mary McCord: Yes, exactly.
Andrew Weissmann: Judge Xinis, in Maryland, is like you know what? I don’t trust you. You are officers of the court. You know what I need? I need somebody from the Department of Homeland Security who’s, as you said, Mary, I need to put bums in seats.
Mary McCord: Butts in seats, on the witness stand.
Andrew Weissmann: Right. She’s basically I need someone with first-hand information who’s going to tell me what are you planning to do.
Mary McCord: Yes.
Andrew Weissmann: It appears one of the things that the government’s doing is if you release Mr. Abrego Garcia in the criminal case, then we’re going to deport him as a way of sort of not having him released. Then why did you indict him?
Mary McCord: It’s crazy. And not necessarily even to his home country, but to a third country. So we’re back in that whole milieu of third country removals that we were just discussing.
Andrew Weissmann: Exactly. Meanwhile, the judge in Maryland is trying to get answers and she is saying, wait a second, you told me over and over, like this is not that long ago, where I said you need to facilitate his release and return to this country. And you, the United States government, told me over and over and over that you could not do it because this person was in the hands now of a third country, El Salvador, and it’s their decision. And you have sworn that up one side and down the other. And now, it’s not that you just indicted him because you can indict people and then hope that you can nab them later, but you indicted him and brought him back immediately.
Mary McCord: That’s right.
Andrew Weissmann: So tell me how that happened. And the best answer was, well, we were still negotiating and the judge said but you didn’t tell me that. You told me it was not possible. We could not do it. You did not say to me, oh you know what? We’re negotiating and it’s going to be possible to do this. That was what was going on. You need to say something and that is the court kept on saying, “You are officers of the court, you’re officers of the court” which is something, Mary, which maybe just take a moment to explain, which is when you are a lawyer, whether you are on the prosecution side, the defense side, whether you’re in a civil case, when you go to court you are representing your client but you are also an officer of the court, meaning that you have to obey the rules of the court and you owe a duty of candor. You can advocate but you owe a duty of candor to the court.
Mary McCord: That’s also part of the rules of professional responsibility for lawyers too. So, when you and I were both the Department of Justice, and frankly, even not in the Department of Justice, just as a practicing attorney, you know, even when it’s something not so good for the case, it’s your obligation to tell the court that and it’s certainly your obligation in any criminal case to tell the defendant that. So not only does she have all those questions but now we have more evidence.
Andrew Weissmann: Exactly. I was like, which one of us wants to read from this new document? By the way, just remember, this is the case where the original government lawyer, who was a was a sort of a Trump loyalist in the sense that he argued many, many things for the Trump administration, was promoted by the Trump administration, it is not some deep state lawyer, was removed from the case and wrote a 30-page whistleblower complaint about what was going on saying that he didn’t sign up to disobey court orders.
But Mary, you said we now have more evidence, and I know that you and I both have it on our screens, I know, have the language that is a filing, I’ll set it up for you, Mary.
Mary McCord: Okay.
Andrew Weissmann: It is language from the Salvador government to the United Nations, because they were asked questions about whether they violated rights in having all these people in this prison. And they have a filing that was made to the United Nations, this has been turned over as part of required discovery. This document is now in court.
Mary McCord: Yes.
Andrew Weissmann: And so, the judges have it.
Mary McCord: That’s right.
Andrew Weissmann: What does it say?
Mary McCord: And just to say which cases, in this is not in the Abrego Garcia case but it will, obviously, be relevant there and probably be filed there by Abrego Garcia’s attorneys. This was actually filed, remember the JGG case, the original case brought in D.C. that Judge Boasberg handled that was brought on the day, and he had emergency hearings on a Saturday as planes were taking off for El Salvador. And that case has been through many different machinations that would take too long for us to go through, but he still has, now, the case involving a class action of those who are already in El Salvador and whether they can be brought back. And that’s where this was filed because he issued a ruling saying I’m not sure right now if they’re in the constructive custody of the United States or not but I don’t have to decide that because they still are owed due process.
Well now, we know, it looks to me like they’re in constructive custody because this United Nations document El Salvador responded to and filed with the United Nations in response to its inquiry by four family members who asked for the UN Office of High Commissioner for Human Rights to look into the report on enforced or involuntary disappearances, right? Because these families are like, our family member disappeared, would you look into it?
El Salvador filed this. The Salvadoran state emphatically states that its authorities have not arrested, detained, or transferred the persons referred to in the communications of the working group, meaning the United Nations working group. The actions of the state of El Salvador have been limited to the implementation of a bilateral cooperation mechanism with another state and in international relations, states refer to countries, sovereign nations, that state being the United States, through which it has facilitated the use of the Salvadoran prison infrastructure for the custody of persons detained within the scope of the justice system and law enforcement of that other state.
In this context, the jurisdiction and legal responsibility for these persons lie exclusively with the competent foreign authorities by virtue of international agreements signed and in accordance with the principles of sovereignty and international cooperation in criminal matters.
Andrew Weissmann: So just to be clear, that when Mary says in this context, the jurisdiction and legal responsibilities for these persons lie exclusively, exclusively, with the competent foreign authorities. That’s the United States.
Mary McCord: That’s the United States.
Andrew Weissmann: That is directly opposite what was said and represented by the State Department to Judge Boasberg. And he anticipated that. He said I want to make sure people understand it is a crime to lie to me and he understands there’s contrary evidence but I don’t know how they’re going to get out of this now.
I mean it was a little bit like blinking at reality before, but now you have this clear document and you have like one country pointing at the other and the other country pointing back. This to me is --
Mary McCord: It’s a fiasco, it’s a mess. It’s lawlessness.
Andrew Weissmann: It’s lawlessness. So can I just say a couple other things? One, kudos to Quinn Emanuel which is a law firm that is representing Abrego Garcia. We’ve talked about how law firms are being subject to executive orders and there’s sort of chilling effect of that. Well, it’s kudos to Quinn Emanuel for doing this.
I should note Perkins Coie that was the subject of the first executive order the government has just filed an appeal in that case so we’ll be keeping an eye on that but Quinn Emanuel is representing him. The wife are seeking to amend the complaint before Judge Xinis, he’s made allegations that he --
Mary McCord: Beaten and made to kneel like from 9:00 p.m. to 6:00 a.m.
Andrew Weissmann: To be clear, El Salvador denies that. But we’ll see what happens. He talks about the drastic weight loss in a matter of you know a short period of time. I always had thought one of the reasons that the government was going to be reluctant to bring anybody back is because there was going to be a live witness who could then talk about what is going on in that prison and that’s what remains to be seen.
The Abrego Garcia, if you’re trying to understand what this administration is doing and the combination of cruelty and disregard for the rule of law it just continues to be that in a way that is just remarkable. I should note one final thing. We talked about how the original lawyer on the case was fired. The lawyer who showed up on this was not a senior DOJ lawyer, that is who you would send on a matter like this. This is a lawyer who, I think, just a month ago, was not at the Department of Justice, who came from the state system in Florida.
And that could be a wonderful lawyer, but that is a completely different system and it’s not somebody steeped in federal immigration law, nor in the facts and history of this case. It is so unusual. I mean, Mary, you and I know and important matters, you make sure your team is buttoned up and strong and this would be one of those cases.
Mary McCord: It’s interesting too because in a number of these cases, the people who have been going into court have now been sort of the political appointees. But and maybe this person is a political appointee. But when I was reading the name, I’m like I don’t even recognize that name. So, yes, there’s so much more to say about this and I think we’re going to be having the courts. I mean they’ve already been doing this, but really, really demanding of the government’s explanations certainly in this situation both JGG and Abrego Garcia. We’re going to be seeing more of that. And we should have more information in another week.
Andrew Weissmann: So maybe switching from an immigration context to TikTok, it sort of relates to this idea of sort of violation of law. Mary you have made the point which is sort of like you know the administration started with a sort of disregard for law because the TikTok ban was passed by Congress, it went up to the Supreme Court because TikTok challenged it and the Supreme Court said it’s constitutional that Congress could do this.
Mary McCord: And just to level set, so that was January 17th, right? Three days before inauguration is when the Supreme Court issued its ruling, explained, of course, that the law that we’re just going to call the TikTok law, it’s actually the name is Protecting Americans From Foreign Adversary Controlled Applications Act.
It made it unlawful for companies in the United States to provide services to distribute maintain or update the social media platform TikTok unless U.S. operation of the platform was severed from Chinese control.
And so, this was, you know, on the basis of national security. The challenge was a First Amendment challenge by people who were going to then be impacted, creators of content, consumers of content and that was rejected by the Supreme Court. The Supreme Court said January 17th, this law is constitutional, right? So we get to January 20th,what happens?
Andrew Weissmann: So here’s the part that’s disrespectful of and not sort of in keeping with the Congress’s role, but I’m not trying to say it’s a violation which is that the government says, we’re not going to enforce the law, right? And that is actually a prerogative. Not all laws are enforced. I mean, you can, obviously, have priorities. And so you have that discretion, and the executive branch is entitled to that discretion. Usually it’s not, we’re not going to enforce it at all, no matter what. But that’s what happened here, which was like, we’re not going to do it.
This is the thing that’s new. If you’re one of the providers that is in the United States, you’re sitting there going, well, you know, you might say you’re not going to enforce it, but I’m the general counsel of Apple. I’m the general counsel of Google, of Microsoft. I need more than that. I mean, how do I know tomorrow you’re not going to change your mind or what happens when the administration, if it changes? I can’t just be like, oh, we’re going to violate the law, but don’t worry. We’re not planning right now to enforce it. Like, if you’re the general counsel or the board on these major companies, that’s not going to really do it. Plus, talk about giving a bludgeon to the administration. If they were to change their mind, they could be like, well, you just violated the law.
So they needed assurances. And that’s what we got, is we didn’t know what assurances precisely were given by the attorney general to these companies. And 21 letters were obtained under the Freedom of Information Act, a congressional statute, that has to be complied with. And these letters were produced to the people seeking.
So you can read them, and we can post a sample one. And one of the things that I find most remarkable is, you would imagine the attorney general would say something like, you know, we don’t intend to enforce this, that this is our plan. But here’s the thing that I found particularly remarkable. The attorney general said the following, “Based on the attorney general’s review of the facts and circumstances,” and I’m just going to give one example, which is Apple. I’m just happy to be pulled that up, “Apple Inc. has committed no violation of the Act, and Apple Inc. has incurred no liability under the act during the relevant time period and can continue to provide services to TikTok as contemplated by the executive orders without violating the act and without incurring any legal liability.” But they are.
Mary McCord: Yes, it’s one thing to say, we’re going to exercise our discretion not to prosecute. It’s another thing to say, you’re not violating the act. And that paragraph you read, or those sentences you read, flowed from a conclusion in the first paragraph of these letters that says, “The attorney general has concluded that the act is properly read not to infringe upon core presidential national security and foreign affairs powers.”
She starts out that paragraph saying, “Article 2 of the United States Constitution vests the president the responsibility over national security and the conduct of foreign policy.” So therefore, we’re going to read this statute, which again, Congress also has Article 1 authority to regulate commerce between nations, and it has other foreign affairs authorities directly from the Constitution. But the attorney general’s position is, “The president’s Article 2 powers are supreme here, so we’re going to read this act to not infringe upon those powers,” which means what you’re doing doesn’t violate the law because the president has said so.
That’s essentially what she’s saying, right?
Andrew Weissmann: Just to be clear, right, because remember, so the Supreme Court has already reviewed this, and so Congress has the power to do this. This is not something that’s exclusive to the president. And so, you have two things going on here. One, the idea that it’s like you haven’t violated the law, I mean, there’s no reasoning given other than because I, as king, tell you what the law is.
I mean, we’ve seen this when we talked about Abrego Garcia. It’s really the leitmotif of the program today, but I would say the leitmotif of every program, like every episode we’ve done since January 20th, which is this is saying, “I have just decided that a congressional statute is not something that is the law.” Do you know who is saying this? The Attorney General of the United States.
Mary McCord: Yes, and it’s interesting too, because there is also a statute or a rule, I can’t remember, that requires when the Department of Justice is not going to defend the constitutionality of a congressional statute, they have to give notice to Congress about that because Congress might want to hire its own separate attorneys to defend. Of course, it’s a little different. In the context of these letters, it wasn’t a challenge that they said they weren’t going to defend because Department of Justice did defend the TikTok statute when it went to the Supreme Court before Trump came into office.
This is just saying, we’re just not going to follow this statute. And you might be saying, okay, could Congress do something? Yes, it could. Will it?
Okay, shall we break and come back and talk about the FBI?
Andrew Weissmann: When we come back, I’m going to tell you a quote that is attributed to Napoleon that is relevant to the point you just made. So come on back, you’ll hear from Napoleon Bonaparte. And then we’ll turn to the FBI.
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Andrew Weissmann: Mary, so Napoleon was reported to have said that the tools belong to the man who will use them. And that is something I learned from the Justice Jackson concurrence that you and I have talked a lot about where it’s very relevant.
He was saying in that concurrence that the court is giving the power to Congress to do this and saying that the president can’t do it. But he was saying, we can give you the power.
Mary McCord: But you have to use it.
Andrew Weissmann: Exactly. And it’s for naught if we do this to try and make sure there’s a separation of powers and checks and balances. But if you’re going to be asleep at the switch, it doesn’t matter what we’re doing.
So you want to tell people what happened in, there was a resignation letter and there was a very beautifully written piece that was on Lawfare, which is a national security forum that is a wonderful resource for people inside and outside of government. And so, it got a fair amount of attention. What happened there?
Mary McCord: Sure, and really this all brings attention to what’s been going on in the FBI since Kash Patel and Dan Bongino became the director and deputy director, respectively. This is about one person, but there’s so many people who I think have the same story.
So Michael Feinberg was an assistant special agent in charge in the Norfolk office. He has been with the FBI for a number of years. He worked in the counterintelligence branch at headquarters during the time when I was in the national security division at DOJ. Worked directly with people with whom I worked frequently. He was somebody who spent a lot of his career in counterintelligence working on the threat from the Chinese Communist Party and that included cyber threats and other types of threats. And he was told, on May 31st in a series of phone calls, that he was told by the newly installed special agent in charge of that office that he, essentially, was going to either be demoted or he could resign. And he had otherwise been on track to be promoted and moved into a higher level position. I think back at the headquarters, you know, FBI agents move around a fair bit. They go out into field offices, they come back to headquarters, those in national security do the same thing. They spend some time in the national security branch at the main office, but then they’ll also handle national security related issues in other offices.
And so, he, at this point in his career, and I will also mention right within, I think a month or two of his wife being ready to deliver their first baby, is told either get out or be demoted. And we talked recently about a number of high level female FBI agents who had also been told get out or be demoted. And he wrote a letter. I can’t read the whole thing because it’s a lengthy letter, but basically says he was informed that he would not be receiving any of the promotions for which he had been being considered that he should steal himself to be demoted from his present role and that he should expect to be polygraphed about the nature of his friendship. His friendship, he learned, with someone disfavored by Donald Trump. Pete Strzok, a name people might remember. This is somebody who worked with you and others on the Russia investigation, worked with me when I was at national security, also on the Russia investigation before I left and before he went over to the Mueller team, highly, highly attacked and criticized by Donald Trump and his allies. And what Michael Feinberg was told is that it was because of his friendship with Pete Strzok that he was being demoted or offered the opportunity to resign.
He says in his letter, “They never explained any policy procedure or an institutional norm that I had violated other than communicating with someone whom our current management finds politically undesirable.”
He then goes on to talk about the decimation of the FBI through forced retirements and their positions taken over by people who are willing to take these positions without voicing any concern or dissent about what’s happening within the FBI. He talks about the Department of Justice being ordered to open cases on individuals soling for having the temerity to say that the 2020 election was not stolen or for having carried out their duties as state-level prosecutors, for investigating January 6th, for being part of a public corruption squad in the nation’s capital, et cetera, et cetera. And he really raises the red flags about what this is doing to the FBI, to the experience of people with many, many years of working on things like terrorism cases, counterintelligence cases, and that experience is going out the door.
Andrew Weissmann: Yes, again, it’s like when you are clearly violating a law if we don’t like the law, you’re not violating the law. If you’re trying to enforce the law, but we don’t like the law, then you need to be fired or you need to be put on a blacklist.
I mean, it is so topsy-turvy, in terms of what’s going on. And a sort of other story that relates to this is one of the January 6th defendants, who received a pardon, because of course, attacking the Capitol, that’s of course something you want a pardon. I mean, I’m being incredibly facetious. This is like, those are the good people now, the people who prosecuted them. Those are the bad people in this, you know, up is down and down is up world.
That individual who received a pardon was recently sentenced to life in prison before a federal Tennessee judge, Thomas Varlan, and his crime was a plot and conspiracy to kill the people who had investigated his case in the January 6th case.
Mary McCord: The FBI agents.
Andrew Weissmann: Exactly, and people may recall, we talked about the issue that had been litigated about the scope of the pardon. And there was a case before Dabney Friedrich in D.C., where the government was saying, we want to have a very expansive view of those pardons. So it’s not just what happened on January 6th, but it should relate to anything that’s uncovered in the course of that investigation.
They tried to draw sort of crazy lines that Judge Friedrich, who, by the way, was appointed by Donald Trump in the first administration, said, “I’m not having any of that.” And she actually posed the example of, “What if you happen to find out that the person committed a murder or a murder conspiracy?” Which is what happened here.
Mary McCord: Exactly, and to be clear here, the government did not argue that this was within the scope of the pardon.
Andrew Weissmann: Exactly, but it’s like, that tells you how inconsistent they are. They just have no consistent theory and sense of what the rule of law requires. The whole point of the rule of law is you don’t get to pick and choose, and that showed how crazy that position was because of course here, the idea that you try to kill these people when they were doing their job, I mean, even apparently there are lines, and that is one of them where he was sentenced by the federal judge to this time. He has not received a pardon. The federal government was seeking this. They opposed the defense position that the pardon should cover this, but I just wanted to make sure people understood that.
Mary McCord: But the bizarro world we’re in, right? We’ve got people being pushed out of the FBI who investigated January 6th, pardons to people who participated in January 6th, one of those people then prosecuted, rightly, of course, for threatening to kill law enforcement, some of whom are being pushed out of the FBI for ever investigating January 6th. I feel like it’s like a full circle here we’re coming in.
Andrew Weissmann: Yes, and Emil Bove is a perfect way to sort of tie that. He is somebody, as a prosecutor, when he was in the Department of Justice in the Southern District of New York, is reportedly somebody who was participating and helping on the January 6th investigation, because, of course, you would. But now that he is the number two to the number two in the Justice Department and nominated to be a judge on the Third Circuit, his view is that a grave injustice is people being prosecuted for participating in January 6th, the same thing that he worked on.
I mean, it’s like shamelessness and cruelty and lawlessness in a sort of hideous stew.
Mary McCord: Gosh, I’m looking for something positive to say here.
Andrew Weissmann: Yes, I know. This is like, well, have a nice week.
Mary McCord: But before we leave the FBI situation, though, I do think it’s important for understand, I’ve focused on sort of counterintelligence and counterterrorism expertise that is being forced out as part of all of this, redirecting people into immigration enforcement and pushing out those who are perceived to have political ideologies that are contrary to that of the current president.
I mean, we’re also losing expertise in corruption cases, and we’ve talked before, Andrew, how foreign corrupt trade practices is no longer a priority of this administration. Domestic white collar corruption cases, no longer a priority of this administration. And there’s so many other things, right, that the FBI has developed years of expertise on. It’s not to guard the perimeter while ICE agents are conducting a raid, right? That is not what FBI agents are trained to do. That’s not why we need them. There are other law enforcement that can assist, if necessary, on ICE raids.
And so, I think it’s important to go back to our topic from segment one, $170 billion for immigration, enforcement, deportation, et cetera. Let’s also talk about the diversion of resources from the things that we have traditionally relied on the FBI for, also to go toward immigration enforcement. And so, it’s just people should be concerned about this because the fallout we’ll start seeing, right?
Andrew Weissmann: And the money can buy certain things, but it doesn’t buy the experience and the judgment that you need. And that, as you and I know, is the name of the game. That is what you need. And it is all great to have a lot of new energetic worker bees, but you need to have training and senior oversight.
And frankly, I would think every citizen in this country wants that. Law enforcement is an awesome responsibility.
Mary McCord: Yes. And they’re not always perfect.
Andrew Weissmann: Of course not.
Mary McCord: Not defending every bad thing. And certainly, we go back to Edgar Hoover and the FBI and find lots of abuses, but there were reforms after that. And now I feel like those reforms are sort of going by the by.
Andrew Weissmann: But that’s the reason why you need that, is to have that sense of history. -
Mary McCord: Okay. On that happy note.
Andrew Weissmann: Thanks everybody for listening. Remember you can subscribe to MSNBC Premium on Apple Podcasts and you can get this show and other MSNBC Originals ad-free. You’ll also get subscriber only bonus content, like the really wonderful discussion that Mary and I had with Tess Bridgeman on the war powers and what is going on in Iran.
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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.