If it’s customary, it’s probably not happening in this Justice Department. Starting with the latest from the Epstein controversy, Andrew and Mary unpack what to make of the two days Deputy Attorney General Todd Blanche spent interviewing Ghislaine Maxwell. This, after a Florida judge denied the release of Epstein grand jury transcripts last Wednesday. And in immigration related news, three decisions came through in the Kilmar Abrego Garcia saga, just as the first claim is filed against the U.S. over one man’s deportation to El Salvador without due process.
Then, in an eye-popping move, Attorney General Pam Bondi’s office filed a misconduct complaint against Judge James Boasberg for “making improper public comments” about the President and his administration. And before wrapping up this week, Mary and Andrew give some context to the former J6 prosecutor who’s suing the administration over his abrupt firing.
Further Reading:
- Here is the misconduct complaint filed against Judge Boasberg: Complaint Against United States District Court Chief Judge James E. Boasberg
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Note: This is a rough transcript. Please excuse any typos.
(MUSIC PLAYING)
Andrew Weissmann: Hi, and welcome back to “Main Justice.” And welcome back to the Tuesday schedule. It is Tuesday morning, July 29th. I am Andrew Weissmann. And that other voice is, my wonderful co-host, Mary McCord. And we’re all back. Welcome, Mary.
Mary McCord: It’s good to be here on a Tuesday morning. We have got just a jam-packed. I think I say this every single week, but every single week, I think, oh my gosh, this is so much, we’re not going to be able to cover it all.
Andrew Weissmann: Well, Mary, last night, look, we had sort of --
Mary McCord: Yes.
Andrew Weissmann: -- people sort of know by now that we’ve learned not to do too much planning, but we do think about the topics, but we don’t do it too far in advance because things change. But I mean seriously, like last night --
Mary McCord: Including last night, really this morning. Yeah.
Andrew Weissmann: Right. We’re like, we need to add this, we need to add that, we need to add this, but --
Mary McCord: Yes.
Andrew Weissmann: -- with all of that banter out of the way, what do we got?
Mary McCord: We will start as we did last week with the continuing Epstein’s saga. Shortly after we recorded last week, the first court to have one of the petitions to unsealed grand jury transcripts denied that request. There have been other developments. Ghislaine Maxwell is still pursuing her petition for Supreme Court review. And of course, since we talked, we’ve had the deputy attorney general spend two days personally meeting with Ms. Maxwell.
Andrew Weissmann: That’s really typical, isn’t it, Mary?
Mary McCord: Oh, yeah. Happens all the time.
Andrew Weissmann: Yeah. I mean --
Mary McCord: Facetious, bing, bing, bing.
Andrew Weissmann: Right. I mean, preferred it when it was the attorney general, but you know --
Mary McCord: Yeah, right.
Andrew Weissmann: -- from time to time the deputy --
Mary McCord: If you’re going to butt into my case, it really better come from the very top, right. If you mess with my case.
Andrew Weissmann: Anyway, as you can tell I’m into digressing.
Mary McCord: Yeah. We’re getting triggered and we haven’t even started. Okay. Then we will move on to, there’s been so much that has gone on in the sort of immigration and deportation related area and cracking down on so-called sanctuary cities. We had a first ruling dismissing the Department of Justice’s case against Chicago, the state of Illinois, the County of Cook County. And we had at the same time, almost the same moment, the DOJ bring another new case against New York City alleging that its sanctuary city policies violate the supremacy clause and discriminate against the federal government, et cetera.
But we’ve also had developments in cases like the Abrego Garcia case and we’ve had the first effort to litigate against the DOJ by somebody who was part of that deportation flight to El Salvador, who has since been sent to Venezuela pursuant to this sort of weird deal by which the El Salvadorian president sent all of the Venezuelans to Venezuela and Venezuela released Americans that it was detaining.
And then that leads kind of directly to something that did happen that really broke late last night. It feels unprecedented to me, misconduct complaint that the attorney general directed at her chief of staff, I guess, to write and file against the chief judge of the D.C. district court. That is Judge Boasberg. The judge, people will recall who in the emergency motions hearing on a weekend, March 14th and 15th, when the very first flights took off for El Salvador, he was the one who held those emergency hearings and ordered that those flights be turned around because people had a right to due process. So you’ve got to really think through and the complaint will talk about it, talks about those activities of that day and really does seem to be potentially filed as a retaliatory measure, but it’s an extraordinary thing.
We’ll talk about that as well as other things going on sort of internal DOJ. We have had now some of the fired assistant U.S. attorney and other people who staffed U.S. Attorney’s Office and the Department of Justice have now filed suit against the department for their firings, which were completely without any basis or cause. The Department of Justice did what it has done in all of these firings. Just said under the authority of Article 2 of the Constitution, you are separated from service.
Andrew Weissmann: Yeah.
Mary McCord: And talk about some of the other things that have been happening within the Department of Justice to the extent that we are able and have time.
Andrew Weissmann: And it’s really interesting. There’s a theme to this. There’s so much of what we’re going to talk about raises big systemic issues.
Mary McCord: Yes.
Andrew Weissmann: There are individual cases raising really big issues about the government, the role of government, the abuse of power. It’s sort of remarkable just listening to, Mary, but should we start with the Epstein matter?
Mary McCord: Yes.
Andrew Weissmann: And as you said, there’s sort of two pieces that are new-ish. There’s the grand jury decision out of a district judge in the 11th circuit down in Florida. And there’s this two day what’s called the proper session with Ghislaine Maxwell. I thought maybe a good way to start just so we frame it and we don’t forget what we’re dealing with, like what is going on, is I wanted to read just a couple quick things.
One is the opening lines from the Second Circuit decision that affirmed Ghislaine Maxwell’s criminal conviction. That’s now something that she is seeking to have the Supreme Court review her legal arguments, but the Second Circuit in affirming the trial judge’s decisions during the trial phase and in the sensing phase started this way. And I thought it was a really useful reminder about who is she? And it says defendant Ghislaine Maxwell coordinated, facilitated, and contributed to Jeffrey Epstein’s sexual abuse of women and underage girls.
Starting in 1994, Maxwell groomed numerous young women to engage in sexual activity with Epstein, by building friendships with these young women, gradually normalizing discussions of sexual topics and sexual abuse. Until about 2004, this pattern of sexual abuse continued as Maxwell provided Epstein access to underage girls in various locations in the United States.
So when we’re talking about Todd Blanche meeting with her and her counsel, that’s who we’re talking about. She has been sentenced by the trial judge to 20 years. Something that I think is also relevant is the victims had no sort of notice and opportunity to be heard --
Mary McCord: That’s right.
Andrew Weissmann: -- before this that’s right meeting between Todd Blanche and Ghislaine Maxwell occurred. And I also thought at the sentencing, various victims were able to present and talk to the trial judge who was Ally Nathan. She was a trial judge, who’s now in the circuit, the circuit judge now. And this is what one of the victims said afterwards. It actually felt very powerful to finally have a chance to speak and have my voice on the record and say the things that I wanted to say about her crimes, impacted myself and the people that I know and care about. And that was factored into this decision by Judge Nathan, who did not go with what the defense wanted, but also did not go with what the prosecution wanted.
Mary McCord: In terms of sentencing. Yes.
Andrew Weissmann: Exactly. And made it clear that Ghislaine Maxwell was being sentenced for her own conduct, not --
Mary McCord: That’s right.
Andrew Weissmann: -- she said not as a stand in. She said, Ms. Maxwell is not punished in place of Epstein. Ms. Maxwell is being punished for the role that she played and she called it direct and repeated participation in a horrific scheme. So I just thought that was important when we then are going to talk about sort of these legal issues to remember who we’re talking about and the righteousness of this prosecution and of her landing in jail. And that’s to say nothing for, she can present legal issues on her appeal. She’s raised this legal issues to the Supreme Court that they may or may not take, but in terms of the facts, this has been adjudicated by a jury. It has been found by the trial court at sentencing and by the Court of Appeals.
Mary McCord: Yeah. And I think that’s so important because the swirl now is really very far afield from the core of what she was convicted of and what Jeffrey Epstein was convicted of in Florida and then was awaiting trial on when he killed himself in jail in New York. And the power of these victim impact statements, this is a right that victims have under federal law at the time of sentencing. Early in my career as a prosecutor, I prosecuted child sexual offenses and exploitation of children and also young women. Obviously, not all of them wanted to give impact statements because it’s very traumatic to do so.
Andrew Weissmann: Yeah.
Mary McCord: But when they did, they read similar to the excerpt that you just mentioned and it gave those victims a voice, a chance to actually talk about the impact on them. Because if they testified at trial, they’re just talking about what happened to them, right, like the actual crime and not so much the impact on them because that actually shouldn’t be affecting the jury’s decision about whether they’re guilty or not, but it certainly affects the judge’s decision about sentencing. And so those are very powerful statements and victims of all kinds of crime get to submit those if they so choose.
So because you mentioned it, before we get into some of the other issues with respect to the grand jury transcripts, this petition for Supreme Court review is about whether when Jeffrey Epstein entered into a plea deal in Florida, whether that covered Ghislaine Maxwell as well, because that plea deal was very interesting. It basically said, if you plead guilty to state law offenses, we, the U.S. Attorney’s Office there, will not prosecute you for federal crimes in Florida and we will not prosecute any of your co-conspirators. And they mention in particular four co-conspirators, but apparently it said including. So it didn’t necessarily say these were the only four. Then after that, subsequent to that is when the Southern District of New York, the federal prosecutors in New York indicted Jeffrey Epstein, indicted Ghislaine Maxwell.
The agreement in Florida was clear with respect to Epstein that it didn’t preclude other U.S. Attorney’s offices from charging him. Only precluded that U.S. Attorney’s Office in the Southern district of Florida. The plea agreement was less clear, at least according to Ghislaine Maxwell and her attorneys about whether the agreement that no co-conspirators would be prosecuted, whether that was limited to just the Southern District of Florida or anywhere in the country.
In New York, the judge held for a lot of reasons that we don’t have to get into these types of deals unless they are explicit that no U.S. Attorney’s Office in the entire country could prosecute, then it is assumed that it is limited to the U.S. Attorney’s Office that brought the case. That was upheld by the Second Circuit. That is the issue that Ms. Maxwell is trying to take to the Supreme Court. She’s saying we have a circuit split, meaning different circuits have ruled differently about whether these types of agreements bind the whole country or not the whole country. The government is basically saying, just look at the language of it --
Andrew Weissmann: Right.
Mary McCord: And the language of it was limited to the Southern District of Florida.
Andrew Weissmann: And that is, to be fair, sort of to both sides. The really standard practice it is extremely unusual for one U.S. Attorney’s Office to purport, to bind every other part of the Department of Justice though so every other U.S. Attorney’s Office and “Main Justice.” Why? Because could you imagine you would have to get their approval and you’d have to just imagine logistically it would be sort of a nightmare.
Mary McCord: And actually the DOJ guidelines require that consultation.
Andrew Weissmann: Right. Yeah.
Mary McCord: You can’t just --
Andrew Weissmann: Yeah.
Mary McCord: -- give away other U.S. Attorneys’ Offices cases.
Andrew Weissmann: So that is the norm and prosecutors and defense lawyers know that. They know --
Mary McCord: That’s right.
Andrew Weissmann: -- that the language is just for that district. On the other hand, as a matter of practice, that’s not legally binding, but as a matter of practice, a good defense lawyer knows it isn’t really going to happen because the system breaks down if somebody charges and sort of says, we’re not going to prosecute for other crimes, if you plead to X. If suddenly the next day, the neighboring jurisdiction, the U.S. Attorney’s Office in New Jersey says, oh, we can prosecute the person who has just prosecuted in Philadelphia. And so as a practical matter, it doesn’t really happen, but that’s different than legally.
Mary McCord: That’s right. Yeah.
Andrew Weissmann: And so before another U.S. Attorney’s Office were to jump in, they would have to be really good and sufficient reasons to not undermine that general understanding. So that is the legal issue going up to the Supreme Court. It’s really about the language in the agreement.
Mary McCord: And the other interesting thing about it is that agreement in Southern District of Florida was about crimes during a particular time range and the Southern District of New York, the indictment there was broader than that. It covered time ranges that weren’t even covered by the Southern District of Florida. So there’s a bunch of arguments.
Andrew Weissmann: It did, but if they were to prevail, there’s still a chunk of time that was covered. So you would think she would get a new trial out of it.
Mary McCord: Right. That’s what I meant.
Andrew Weissmann: Yeah.
Mary McCord: Yeah, it overlapped --
Andrew Weissmann: Yeah.
Mary McCord: -- but there’s a chunk of time that wasn’t covered. Yes, exactly. So that’s what’s happening there and it’s kind of timing was interesting, right, Andrew, because here you’ve got the government saying --
Andrew Weissmann: Yes.
Mary McCord: -- don’t take this case, Supreme Court. Nothing to see here. She was properly prosecuted. At the same time, literally they filed that last week. She filed her reply yesterday. At the same time last week, the government saying Supreme Court don’t take this properly convicted. You’ve got Todd Blanche going down and meeting with Ms. Maxwell to talk to her. We don’t know exactly about what, but presumably about people who might have been implicated in the crimes and people potentially that the government wants to determine were not implicated in the crimes.
Andrew Weissmann: Speaking of ironies, as we predicted, this general law with respect to release of grand jury information is extremely hard. It is even harder in the 11th Circuit where the 11th Circuit Court of Appeals has a much narrower definition in terms of the leeway that the district court has than in New York. So we don’t have a New York decision yet, and that’s in front of Judge Paul Engelmayer, an excellent district court judge and that’s winding (ph) its way. But in the meantime, the Florida court said, look, our hands are tied. I mean --
Mary McCord: Correct.
Andrew Weissmann: -- you recognize that because the 11th Circuit has very, very strict rules and you can see you don’t fall into those.
Mary McCord: Which means it has to be one of the exceptions in rule 6C that we talked about last week.
Andrew Weissmann: Exactly.
Mary McCord: And it’s not one of those exceptions.
Andrew Weissmann: It’s not one of those and I’m not transferring it up to New York for their standard to apply. It doesn’t meet the transfer rules. So that, as we predicted, would be denied. But the reason it’s ironic is that the same time they’re saying, oh, we want to release this, the government is in possession of, and I looked it up. According to the government, they have 30 gigabytes. That’s with a G and a B.
Mary McCord: Yeah. Yeah. It’s big --
Andrew Weissmann: -- of information.
Mary McCord: -- big number. Gigantic bytes.
Andrew Weissmann: Yeah. Someone asked me, I think it was Tim Miller who said like, well, what does that mean? And I said, you know what that means in legal? It means a lot.
Mary McCord: A lot. Yeah. And we talked last week about, they could release some of that properly redacted if they wanted to do so. And that’s why this whole thing seems to be really politically motivated in my opinion.
Andrew Weissmann: Yeah. I did want to give one thing because it’s gotten so much press, which is people have talked about Todd Blanche being on this podcast with the defense lawyer and praising the defense lawyer for Ghislaine Maxwell and being friendly. I just want to make sure if that was the only thing here. That’s a big nothing burger.
Mary McCord: It’s a nothing burger.
Andrew Weissmann: If you were really close friends, you might decide to recuse yourself. If you were just sort of colleagues or knew each other or respect each other, of course, we make sure someone else was in the room. You typically do proffer sessions, always with --
Mary McCord: Yeah.
Andrew Weissmann: -- the case agent and people actually --
Mary McCord: Always a witness.
Andrew Weissmann: -- steeped in the case.
Mary McCord: Always a witness. Yes.
Andrew Weissmann: And that’s one of the things we don’t know the answer to that yet, but we doesn’t appear that the career people on the case were present. And so we don’t know who else was there, but the mere fact of having a collegial relationship or even praising one person on one side or the other is just not that unusual.
Mary McCord: Right.
Andrew Weissmann: Especially the longer you are in the business. And particularly what I would say in Washington, there’s sort of a fairly close knit legal community in the criminal law world and people know each other --
Mary McCord: Yes.
Andrew Weissmann: -- and developed reputations. So that in and of itself is not the sin.
Mary McCord: That’s right. I agree. Last point we should make before we break is there is another avenue for some of these records --
Andrew Weissmann: Yes.
Mary McCord: -- to potentially be made public. And that has to do with a defamation suit that was brought by one of the victims who has actually since died as well as the media organization has intervened. A defamation suit against Ms. Maxwell because of Ms. Maxwell sort of denying what happened to this victim. And that suit has its own set of records. And the media organization is now asking for those records to be made public. A day since the last time we recorded on a day that is not this day and was not that day, has said there should be a review of those to see what might be able to be made public.
And we also have the House and Senate, Congress members, Republicans, and Democrats pushing for things to be made public. We’ve got some Democrats now asking for the records of the meetings between Mr. Blanche and Ms. Maxwell, which they’re never going to give up. But like, anyway, my point is there’s like a full court press through multiple different political and legal channels by which more information could be made public.
Andrew Weissmann: Yeah. I mean, there’s Freedom of Information Act. There’s that, as you mentioned, the Miami paper and Julie Brown, this excellent reporter, who’s written about the Epstein-Ghislaine Maxwell case and a wonderful, wonderful book. She is seeking this information. She got material, she didn’t get some material, but the court basically said, we’re going to send it back to the district judge --
Mary McCord: Yeah.
Andrew Weissmann: -- for applying a different legal standard for some of the documents, but that is another avenue. It remains to be seen, but this is what’s so ironic is the government any day of the week, if they wanted to be transparent, could just turn this over. So it’s just so bizarre --
Mary McCord: Yeah.
Andrew Weissmann: -- that they’re saying that the grand jury transcript should be made public. And I do think it puts a court in interesting position if somebody is seeking this information or the Freedom of Information Act where the government is going to say, oh, we have a strong interest in not disclosing it when they’re at the same time saying --
Mary McCord: Yeah.
Andrew Weissmann: -- we want to be really transparent and the president has told us to be really transparent and we’re seeking information that is typically never disclosed.
Mary McCord: Yeah.
Andrew Weissmann: And yet we don’t want to turn over the FOIA information.
Mary McCord: Yeah. I mean, there’s a lot of these sort of inconsistent positions in this whole area of Epstein.
Andrew Weissmann: Yeah. That’s like, to me, the big picture is like they’re asking for this stuff that they know that they won’t get disclosed and is least likely to have damaging information to the president, but they’re not disclosing the information. They could disclose and does have, at least the reporting information that I won’t say it’s criminal, but information that could be reputationally difficult for --
Mary McCord: Yeah.
Andrew Weissmann: -- the president and others.
Mary McCord: That’s right. Okay. Shall we break?
Andrew Weissmann: We shall.
(MUSIC PLAYING)
Andrew Weissmann: Welcome back. Okay. Let’s talk about sanctuary cities. Let me sort of set the stage. There are certain states and localities within those states that have passed various laws. Illinois is one of them. New York is another. And so New York City has various rules. It’s interesting. I was reading over the Illinois case and also the New York case and the provisions of law while they’re slightly different are actually quite similar.
Mary McCord: Yes.
Andrew Weissmann: And I suspect a lot of cities talk to each other about what they’re doing as they should. And basically one way to think about this is one, the term sanctuary city is a misnomer because --
Mary McCord: That’s right.
Andrew Weissmann: -- sanctuary city might suggest that if you are in that city, your immune completely from outside law enforcement and this situation outside, meaning federal. That’s not what’s going on. Sanctuary really relates to what the locality will do and what the locality will not do, but it doesn’t prevent the federal government from taking lawful action. The real issue is how much can the federal government dictate to the states and to localities what they must do versus what they can do. We talked about this a little bit --
Mary McCord: Early on.
Andrew Weissmann: -- earlier when there was a Department of Justice memo that we thought was, let’s just say, without saying whether it was deliberate or not, let’s just say it was not clear and it gave the impression that if the locality does not help federal law enforcement, that they somehow are obstructing justice. That not helping is obstructing.
Mary McCord: Yeah. They suggested criminal in violation.
Andrew Weissmann: Exactly.
Mary McCord: That’s right.
Andrew Weissmann: But not helping is different than obstructing and --
Mary McCord: That’s --
Andrew Weissmann: -- sort of tension is what runs through the decision in Illinois rejecting the government’s position. And the new case that you said Mary was filed, like as nightfall --
Mary McCord: Like today.
Andrew Weissmann: -- within hours in New York.
Mary McCord: I think, yeah.
Andrew Weissmann: By the way, here’s a little factoid before I turn it over to you. It was so interesting to me that the federal government chose to file this in the Eastern District of New York, my old stomping ground. And it’s before Judge Reyes, excellent district judge, longtime, federal magistrate judge, and its pending there. And it’s just interesting to me that the federal government thought that they might have a better shot at a favorable bench in the Eastern District of New York than in the Southern District of York. I don’t really know why they would’ve thought that. They’re excellent nonpartisan judges of all stripes and appointed by Democrats and Republicans in both districts, but I just thought that was an interesting factoid is to where the government chose to file, because they didn’t have to file, I don’t think, in the Eastern District of New York. They had a choice of different districts.
Mary McCord: I wouldn’t have thought so. Yeah. I want to also come back to, I know, months ago when we first talked about sanctuary cities, I got on my bully pulpit on this, but I’ve done a lot of speaking to mayors across the country, police chiefs sheriffs. And in fact, my organization, ICAP, has published guidance on what is required by federal law in terms of cooperation by local and state officials with federal immigration enforcement. And the reason that jurisdictions, it could be like local ordinances, it could be a state law. In the case of Illinois, it’s all of that. It’s a state law, it’s a county law, it’s a city ordinance.
The reason they pass these types of legislative measures is for public safety. It’s when a police, chief or sheriff and the mayor, they all say, look, or the governor, we prioritize public safety in our communities, which means we need the cooperation of everyone in our communities, immigrant, non-immigrants, citizen, non-citizen, documented, non-documented, because we need people to report crimes. We need people to show up as witnesses to crimes. We need people to feel that they can also send their kids to school, right, and take their kids in for healthcare.
And if everyone in our community is constantly thinking that our local law enforcement is just a branch of ICE and is always going to be looking for our documents and reporting us to ICE, our community is going to shut down. They’re not going to work with law enforcement. They’re not going to send their kids to school. They’re not going to send their kids to the doctor when they need to. And that is going to harm public safety in our communities. So that’s what motivates these. It’s not this middle finger to ICE. This is like, we make decisions which the Constitution and the principles of federalism leave to the states. We make decisions at the local and state level about what’s best for public safety in our states.
And so these policies, they typically have several features that are common across them, like you indicated Andrew. And that is that they’re prohibited by law from prohibiting the maintaining of information about the immigration or citizenship status of a person. But what they will say is we are not going to ask people about it unless it’s pertinent to something in our investigation. So we won’t even have the information about somebody’s immigration status to give it to ICE, or we won’t even maintain it to give it to ICE if they ask it because we’re not going to ask those questions of everyone we encounter, whether it’s seeking healthcare, reporting a crime, whatever, unless it’s actually relevant to the investigation.
They also almost all of them say, we will not hold in our detention facilities, our jails, we will not hold a person on a civil administrative immigration detainer or warrant, and we’ll talk about what that means, past when that person is otherwise eligible for release. We won’t hold them there for ICE to come even though ICE wants us to do that because that’s a seizure. We need probable cause of a crime and an ICE warrant is not based on probable cause of a crime. It’s just based on information known to ICE that a person might not have legal status in this country, which remember is not a crime.
It is not a crime to be here undocumented. You don’t have legal status, you can be removed, but it’s not a crime just to be here undocumented. And so for their own reasons of being consistent with the Fourth Amendment, they’re like, we’re not going to hold people when we have no authority to hold them and they are due to be released.
Andrew Weissmann: And as the judge said in the Illinois case, a detainer by ICE is a request, not a command.
Mary McCord: It’s just a request.
Andrew Weissmann: And talking once again about irony, this is the Republican Party that is trying to, as again, in the words of the district judge, commandeer state practices to tell the state what they can and cannot do and here what they must do to facilitate the federal government. We are so far away from the civil rights fights in the ‘50s and ‘60s where Republicans who are very much on the other side of this issue and very focused on states’ rights because here what the judge found was a violation of this sort of anti-commandeering rules, which is that Congress has no power to make the states just part of the federal government and carrying out their rules,
Mary McCord: Enforce federal immigration law, do any kind of enforcement of a federal regulatory scheme. And federal immigration law by design is for the federal government because they actually, Congress is like, we don’t really want all of the states having their own immigration regime, right, and forcing it in ways that might be inconsistent. So very much by design it’s like, and the Supreme Court has upheld this. It is a federal regulatory scheme and the anti-commandeering principle that you mentioned that, of course, the judge relied on in dismissing, just outright dismissing the Department of Justice’s case against Illinois and Cook County and Chicago was this would, first of all, the federal law doesn’t preempt state law.
And if it did, it would violate these anti-commandeering principles --
Andrew Weissmann: Right.
Mary McCord: -- of the Constitution. The sort of have their Genesis in the 10th Amendment that gives states the rights, the police power, et cetera, because it would be in fact, forcing states and local jurisdictions to carry out a federal regulatory scheme.
Andrew Weissmann: So one way to connect this up to a second thing before we move on to this really interesting lawsuit by somebody who is extracted is when you said that the localities are concerned about, like ICE may have said something or ICE may want to do something, but they don’t have to sort of take their word for it and enforce that, is what’s happened in the Abrego Garcia case.
Mary McCord: That’s right.
Andrew Weissmann: Where you have two judges within minutes of each other rejecting the government’s view. And we talked a lot about the magistrate judge in the criminal case rejecting the idea that Mr. Abrego Garcia should be held in jail pending that criminal case. That was appealed to the district judge while the district judge in a lengthy, another lengthy thorough decision affirmed the magistrate judge and said that Mr. Abrego Garcia will be out on bail pending the resolution of the criminal case. Now fast forward four minutes --
Mary McCord: Right, exactly.
Andrew Weissmann: -- to Maryland where the judge who had this civil case, the one that started it all, Judge Xinis said that I see that he’s going to be released pending that criminal case. Well, if you, the government want to take him back into custody and deport him, there has to be 72 hours’ notice to him. And as we talked about over and over again, if there’s any case, any single case where you would want to give notice it’s this one.
Mary McCord: Oh gosh.
Andrew Weissmann: Because everybody, including the government agrees that he was deported, extracted, removed, whatever word you want, whatever verb and violation of court order.
Mary McCord: That’s right.
Andrew Weissmann: And without due process. So she is saying that you have to comply with a 72 hour provision. So a double loss --
Mary McCord: Well, first of all, she says, yeah, she says, you’ve got to return him to the status quo before you send him away, which means in Maryland, his immigration case is in Baltimore. You don’t get to just start over someplace else or resume someplace else. And if you decide that you are going to deporting to some third country, because that’s one of the things that his attorneys are really worried about, right, and they’ve talked about the deportations to South Sudan, right, and to Mexico. If you’re going to do that, you got to give him those 72 hours’ notice.
Now, the other crazy thing here is that right after all this happened, another four minutes, Andrew, we had the magistrate judge back in Nashville after the district court judge says, I agree with the magistrate judge that there could be conditions of his release so he does not need to be detained and he should be released on the conditions that the magistrate judge imposes. And those can be things like regular check-ins with pre-trial services and sometimes ankle monitoring. I don’t think that’s going to be one here, but those kind of things.
Then his own attorneys went in before the magistrate judge and said time out, can you just keep him in detention for up to another 30 days while we figure out what is going to happen? Because the government has just not been clear about whether it’s really going to try to deport him to a third country or not. In fact, not only have they not been clear, they’ve just refused to answer questions about this in either place and so --
Andrew Weissmann: To the court. To the court.
Mary McCord: To the court. And isn’t this something to think that a person would rather stay in pre-trial detention for up to another 30 days when a judge has said you can be released because that person is so worried that if they’re released the government will spirit him away to someplace like South Sudan.
Andrew Weissmann: To quote Ms. Öztürk in the --
Mary McCord: Yes.
Andrew Weissmann: -- article that we read from and referenced last week, I didn’t think this could happen in the United States.
Mary McCord: Yes. Agreed.
Andrew Weissmann: So speaking of which, one of the people who was extracted and removed to El Salvador is now taking steps to file a claim against Homeland Security for what happened there.
Mary McCord: That’s right.
Andrew Weissmann: And to be clear, he was denied due process. We know that from the Supreme Court of the United States, and we’ll see what happens with that lawsuit. He is seeking over a million dollars in damages, and there are various challenges to bringing a civil case against the government that indeed we will cover as this case progresses, but it is very much a vehicle to both give justice to an individual, but also to deter the kind of conduct --
Mary McCord: That’s right.
Andrew Weissmann: -- going forward. And so we will have to spend more time talking about this because it’s a very complicated. I actually have to do this every year in my Fourth Amendment class because a lot of times people are saying, well, couldn’t people bring a civil suit. And it’s like, well this is where lawyers get bad days and it’s sort of like, yes and no.
Mary McCord: We’re going to have to talk about Bivens one day, right?
Andrew Weissmann: Exactly.
Mary McCord: Going to have to talk about Bivens.
Andrew Weissmann: So we wanted to flag that for you, that there is that case. Mary let’s take a break and when we come back, we want to talk about something that broke last night about Chief Judge Boasberg that I know the two of us are dying to talk about and frame and bring everyone up to speed on what we know so far.
Mary McCord: Sounds good.
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Mary McCord: Welcome back. Well, as promised and as related to the topic we were just discussing. Yesterday in a misconduct complaint that was sent via hand delivery to the clerk of the court and addressed to Chief Judge Sri Srinivasan, who is the chief judge of the D.C. Circuit. There was a complaint filed by Attorney General Pam Bondi’s chief of staff, Chad Mizelle. It is five pages long and it is a misconduct complaint about Judge James Boasberg, who is the chief judge of the district court in the District of Columbia.
So, it’s an interesting thing because there are a bunch of circuits around the country, which are the Courts of Appeals and every single one of them, other than the District of Columbia has jurisdiction over a number of different states and a number of different district courts in different states. But D.C. just has one district court and one circuit court, and those judges are all in the same courthouse. And it’s not like the Fourth Circuit for instance has Maryland and Virginia and North Carolina all reporting up to it, but D.C. is different.
So this went to Judge Srinivasan. The complaint is that on March 11th, Judge Boasberg was attending a session of the Judicial Conference of the United States, which we’ll talk about that, is a conference led by the Chief Justice and it includes the chief judge of each circuit of all the circuits and then one district judge.
Andrew Weissmann: So that’s 11 circuits.
Mary McCord: That’s right. Well, 11 plus D.C., right. So, 12. By my math I think that’s all.
Andrew Weissmann: You’re right.
Mary McCord: And then one judge from a district court within each circuit. So for all the others, it might just be one judge from one court in one state within the circuit, but in D.C., that means both the chief judge of the circuit, Judge Srinivasan and the chief judge of the D.C. District Court, Judge Boasberg. That’s the judicial conference. And they meet regularly to talk about administrative matters and things like this and sometimes rules and other things like this.
So the complaint is that while attending a session in the judicial conference, this is not a public thing by the way.
Andrew Weissmann: Yeah.
Mary McCord: This is a meeting of judges. While there, I’m reading from it, Judge Boasberg attempted to improperly influence Chief Justice Roberts and roughly two dozen other federal judges by straying from the traditional topics to express his belief that the Trump administration would, quote, “disregard rulings of federal courts,” quote, and trigger, quote, “a constitutional crisis,” end quote. And then the complaint goes on to say, “Although his comments would be inappropriate even if they had some basis, they were even worse because Judge Boasberg had no basis. The Trump administration has always complied with all court orders nor did Judge Boasberg identify any purported violations of court orders to justify his unprecedented predictions.”
The complaint then goes on to say within days because the date of this judicial conference meeting was March 11th according to the complaint. The very next weekend, March 14, 15, is the weekend that the government, without being transparent about it at all, boards people on planes to send them to CECOT, the terrorist detention center in El Salvador, allegedly under the auspices of the Alien Enemy Act, which only got made clear like in the middle of Judge Boasberg handling emergency proceedings on a weekend. Those proceedings where he did order those plans to be turned around so that people could have due process. And they are essentially making the point in this misconduct complaint that all of that is part of his misconduct.
Andrew Weissmann: There’s so much to say. One is that this broke last night, so we don’t have the position of Judge Boasberg or the chief justice or anyone else. What you are reporting is only what’s in the complaint.
Mary McCord: That’s right.
Andrew Weissmann: Two, the fact that the complaint keeps on talking about these as public statements by Judge Boasberg at the conference is odd because it’s not public. One of the reasons that you might be thinking, so why do they say that? And that’s because the ethical canons that they cite all relate either explicitly or implicitly to public statements.
Mary McCord: That’s right.
Andrew Weissmann: So they have a judge should act at all times in matter that promotes public confidence in the integrity impartiality of the judiciary or Canon 3A6, a judge should not make public comments on the merits of a matter. And a judge should uphold the integrity and independence of the judiciary. So this would all be furthered if you could somehow argue that these were public statements that he made outside of the courtroom, as opposed to, as part of judicially discussing something.
Factually, the reason for your cough is (ph), Judge Boasberg, A, is not alone in the judges who are concerned about this. Judge Xinis has the same concerns. Judge Young, Judge Gallagher appointed by Donald Trump in the first term, same thing. So the idea that Judge Boasberg is singled out is very much sort of a war on the judiciary is the way I look at this in an unprecedented unheard of way. They see this full frontal assault on --
Mary McCord: Yes.
Andrew Weissmann: -- the courts that are pushing back because Congress, they have under control because of the way that’s composition and the courts are the last remaining sort of political check that we have in terms of the branches of government. Obviously, the voters are the ultimate political check. And so there’s that piece of it. And then the final thing ,factually, is leave aside what is happening in court where we could look at all of the judicial cases that, Mary, you and I have talked about so often on this podcast, but there are now not one, not two, but three whistleblower who have gone to Congress and reported about events involving a Emil Bove, who is the number two to the number two, a very high level position at the Department of Justice.
And talking about his, essentially blowing off. The courts are saying, we may need to and he used very explicit language, something which he hasn’t directly denied. He actually said he doesn’t recall using that language, but you have these various whistleblower complaints. It’s not like there isn’t a factual record here.
Mary McCord: Exactly.
Andrew Weissmann: Not just from the judges, but from internal people to the department, including just to remind people, Mr. Reuveni, who was the first whistleblower, that had been advocating on behalf of the Trump administration in all sorts of ways. This is not a deep state DOJ attorney. As he said, I just didn’t sign up to lie.
Mary McCord: That’s right. I mean, it’s short, we can put it in the show notes. It’s just pretty extraordinary. I mean, like you said, they’re claiming it wasn’t in the part that I read, but they’re very clear. These comments to the Chief Justice and other federal judges in a public setting, undermined the integrity and impartiality of the judiciary in violation of Canons 12A and 3A6, but it’s not public. And then this notion, the Trump administration, I’m just going to read it again. The Trump administration has always complied with all court orders. That is not what we have judges across the country finding.
So, sometimes I wonder when things get written by this Department of Justice and submitted to courts, like, did anyone else read this? Did anyone fact check it? Did anyone pay any attention to whether the assertions being made in there were true? Is it possible that Mr. Mizelle didn’t realize that the judicial conference does not meet publicly? It’s not like you can be like, hey, can I go like sit in the audience and listen. It’s just not that. And what this asks for, it asks for a special investigative committee to be appointed and to inquire into whether Judge Boasberg’s conduct constitutes conduct prejudicial to the effective and expeditious administration of the business of the courts, wants some order interim corrective measures to reassign all of the related cases to JGG versus Trump.
JGG is the case we were just talking about the case that went to the Supreme Court, where the Supreme Court said this has to be brought in habeas, not in the case of the way it was brought before Judge Boasberg, but all nine justices agreed that people are entitled to due process of law in time before they are removed from the country, in time to actually bring a habeas petition. All nine justices agreed. They want him reassigned from that case, taken off of that case. And then they say upon substantiation, they want to impose appropriate disciplinary action, including a public reprimand and referral to the judicial conference for consideration of impeachment related recommendations if the committee finds willfulness conduct. So your comment about a war on the judiciary, I think is very apt here.
Andrew Weissmann: So the other thing that is in this complaint, the audience for it is clearly the public and not --
Mary McCord: Yes.
Andrew Weissmann: -- the any sort of rational bench. They say that the Supreme Court summarily vacated Judge Boasberg’s decision without saying it was on this procedural issue about --
Mary McCord: That’s right.
Andrew Weissmann: -- should it be brought by habeas or under the APA, sort of what’s the mechanism, as opposed to the merits of it. That’s nowhere in here. So it’s very, very misleading. It sounds like the Supreme Court just completely disagreed with everything he was doing, which is not the case. Second, guess how they describe the people who were extracted. They were TDA, quote, “terrorists,” unquote. This was what Judge Wilkinson, a leading conservative jurist in the Fourth Circuit was saying, says who? He said, maybe they are, and maybe they’re not. And the point is you haven’t given them the due process that they’re entitled to, to prove that.
I mean, it is unbelievable that this is signed by the chief of staff to the attorney general of the United States of America. It’s sort of like at some point you run out of words.
Mary McCord: Well, you know what, Andrew, this Department of Justice and we have a couple more points to make before we close today, is becoming unrecognizable to me. I spent decades in the halls of the Main Justice building and my U.S. Attorney’s Office. More in my U.S. Attorney’s Office than the halls of Main Justice. But the last three years only in the halls of Main Justice. And before then there, every time I got summoned over there. And the things that this department is doing just are not consistent with anything in my career that I’d seen under administrations of Republicans and Democrats and it’s going to be tough to rebuild.
Andrew Weissmann: Yeah. And it’s one of the reasons that you’re seeing a mass exodus from all parts of the Department of Justice, Certainly at Main Justice’s civil rights division and the federal programs division. One thing I was struck by in the sanctuary cities case, the one that was filed in New York, it is customary, which means, of course it’s not happening, but it is customary that if the federal government from main justice, that is the Department of Justice in Washington, is going to file something in a local U.S. Attorney’s Office, that somebody in the local U.S. Attorney’s Office is on the brief --
Mary McCord: The name will be --
Andrew Weissmann: -- and the courts actually want it. In my district, which was the Eastern District of New York, they would be like, where’s the local prosecutor.
Mary McCord: Sure.
Andrew Weissmann: They know those people. They want to know that they’ve been vetted, that they have someone there who they can talk to, who they have seen and can trust. And it also controls sort of access. Well, this case was filed by Main Justice with not a single person from the local U.S. Attorney’s Office. I was struck again. The reason I’m raising it was this complaint against Chief Judge Boasberg was signed by the chief staff to the attorney general of the United States. No career person was on it. It is for these political people. And that is a real sign.
Look to see who is signing things, who is showing up in court on these batters. And it’ll give you a sense of what Mary’s talking about, the real undermining of the rule of law that you can see sort of on paper in the Department of Justice.
Mary McCord: Last thing, again, internal Department of Justice, we do have the first litigation now being filed to challenge these firings without cause and that’s brought by --
Andrew Weissmann: Absolutely.
Mary McCord: -- Michael Gordon and two others. Michael Gordon was a prosecutor actually in Florida, but he was assigned to handle some of the January 6th prosecutions because that was such a big investigation. The D.C. U.S. Attorney’s Office didn’t have enough people to staff up all of those prosecutions. So they had prosecutors from different U.S. Attorney’s Office around the country who were helping with those. He had some very significant cases there, but he also had significant cases in his home jurisdiction, including one that he was preparing to go to trial on a major, I believe, healthcare fraud investigation.
He was preparing to go to trial on imminently when he was just basically handed this letter, that’s from Attorney General Pam Bondi, saying under the president’s Article II authority, you are being separated from service immediately. He had to get his things immediately and leave the office.
Andrew Weissmann: So, yeah, the other two people are interesting. There’s Patricia Hartman. She received the same kind of memorandum. She is a supervisory public affairs specialist and she was with the United States Attorney’s Office in your old office, in the District of Columbia. And then notably, the third person is Joseph Tirrell. Joseph Tirrell was the Director Department Ethics Office. He was at the head office person at Main Justice. And before that, he was in this wonderful part of the FBI, which was the compliance office. Who gets rid of those people? Like why would that be the person you would get rid of, if you were thinking of you want the best ethics advice? And he also got this letter saying you’re being removed.
By the way, Joseph Tirrell was not just a sort of normal civil service employee. He was something that I was also --
Mary McCord: So was I.
Andrew Weissmann: -- like he was part of something called the SES, Senior Executive Service. And that is sort of this special honorific that gives you extra rights within the department. It’s both very well respected. It’s for senior people where the department is saying, you have such expertise and knowledge that we want you as this cadre of special people. And it’s very hard under the civil service rules to remove that people apparently not under the Trump administration.
And that’s why this case is about an attack on civil service rules. This is the administration saying under Article II and the unitary executive that civil service rules do not apply. We can override them. And that is why this is such an important case to watch. The other thing about this case to watch is normally if you’re an employee who’s fired impermissibly in your view, you have to go to something called the merit system protection board. Here, these employees went directly to court and they said, well, you know what? We can’t go to the merit system protection board because Donald Trump has essentially eradicated it by removing the quorum. There aren’t enough people there.
Mary McCord: He removed all the democratic appointees. And now I think that he has one person and that’s not a quorum.
Andrew Weissmann: Exactly. So they say we should be able to go to court. This is before Judge Cobb in the D.C. District court. So we will definitely, definitely be covering this because it’s an individual case with three people, but it could not be more important. We’ll definitely, in another show, talk about why you should care about the civil service because I know it’s a hard thing. It’s not like a political battle cry to say, hey, let’s go for the civil service, but it is so important regardless of party that you want career people making decisions on an apolitical basis and that you don’t have a Democrat coming into office and just saying, I’m sweeping all the Republicans out and vice versa. Like you don’t want it on either side.
Mary McCord: That’s right. And you know, what’s interesting, and this is probably unique to D.C., but I have seen many, many yard signs. I’m a runner so I go out and I run in the mornings and I run in the neighborhoods and there are a lot of yard signs that say we support federal workers.
Andrew Weissmann: Love it.
Mary McCord: And that’s not just DOJ workers, right? That’s USAID, State Department, because of what we’ve seen, Department of Education, mass, firings, mass removals, ending programs, people losing their jobs, people who’ve been respected, they’re part of that civil service. And again, I’m in D.C. so obviously, everyone here knows somebody who is a federal government worker, but I think it’s nice to see these signs in different people’s yards and in their windows.
Andrew Weissmann: Absolutely. Okay. So Mary, thanks again for keeping us sane and real and relatively calm.
Mary McCord: Yeah. I don’t know if I’m doing that or not, but okay.
Andrew Weissmann: And thanks everyone for listening and staying engaged. Remember, you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC originals, ad free. And you’ll also get subscriber only bonus content.
Mary McCord: This podcast is produced by Vicki Vergolina and Max Jacobs. Our intern is Colette Holcomb. Bob Mallory is our audio engineer. Bryon 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.