Military action is a stark theme this week, as Oregon and Illinois sue the Trump administration over its attempts to federalize National Guard troops for deployment into both states. Mary and Andrew break down not one, but two temporary restraining orders that block deployments to Oregon, as Trump appointed Judge Karin Immergut cites Trump’s own words to show the facts don’t support what he alleges about “war ravaged” cities. Then, they dig into the administration’s fourth deadly boat strike on alleged drug traffickers near Venezuela, highlighting how the lack of apparent legal authority might play out, as Attorney General Pam Bondi answered questions from the Senate Judiciary committee Tuesday. Last up, Andrew and Mary turn to two consequential decisions that don’t bode well for the Trump administration: one decision out of Boston, barring efforts to deport non-citizen activists; and a second finding of a “likelihood of vindictive prosecution” from a Nashville judge as it relates to the seeming retaliatory charges against Kilmar Abrego-Garcia.
Further reading:
- MSNBC’s Carol Leonnig and Ken Dilanian report: Top prosecutor is rejecting Trump pressure to charge New York AG
- Mary And Tess Bridgeman’s piece for Just Security: What the Senate Judiciary Committee Should Ask A.G. Bondi on Drug Cartel Strikes
- Judge Karin Immergut’s two decisions in Oregon:
- Immergut’s First TRO blocking federalization of the Oregon National Guard.
- Immergut’s Second TRO blocking deployment of any “federalized members of the National Guard” to the state.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back to "Main Justice." It is Tuesday morning, October 7th. I am Andrew Weissmann. I am here with my co-host, Mary McCord.
Mary, that ends the positive part and the even-keeled part of this episode. How are you? Leaving aside everything that's happening in the real world, how are you?
Mary McCord: My health is good. I had a good run this morning, faster than usual. So that ends the good part of my day. So there we go.
Because you know on Mondays, and this is not a Monday, this is Tuesday, but this is kind of everyday now. The early morning hours of sleep are not really sleep. You're thinking about all the million things that you're worried about and then you have to do. And so that's all there in a flood in your brain. And the first people you talk to, unfortunately, have to hear that flood of stuff --
Andrew Weissmann: Exactly.
Mary McCord: -- you've been thinking about all night.
Andrew Weissmann: It's like no matter how old you get, you still, on Sunday night, it's still, you're thinking about school the next day.
Mary McCord: Yeah.
Andrew Weissmann: And it's like you can't get that out of your system. And I'm 67 years old and it still happens.
Mary McCord: Yeah, totally.
Andrew Weissmann: I have to say, I do that on Monday nights because I'm thinking about how to calm myself --
Mary McCord: Tuesday mornings.
Andrew Weissmann: Exactly, and how to calm myself down.
Mary McCord: Yeah.
Andrew Weissmann: Because obviously a lot has happened and there's a lot to cover. So what is on our dance card?
Mary McCord: Yeah, and you know it is interesting. Yesterday was the opening day of the Supreme Court's fall 2025 into 2026 term. You might have thought we'd spend this episode talking about the major cases that are on the docket, including, I mean, today a case challenging the bans on conversion therapy. In November, the tariff case. We've got a case that my team is working on, just got cert granted on Friday, that is a case involving Hawaii's gun restrictions. And then, of course, probably birthright citizenship is going to end up in the Supreme Court, etc.
But we are not going to talk about that because instead --
Andrew Weissmann: Although, by the way, one thing that's not on their list is Ghislaine Maxwell's appeal.
Mary McCord: That’s right.
Andrew Weissmann: Because they did not grant cert. But you're right, this is such an elegant way of saying, and now, having done all that, we are not going to talk about that.
Mary McCord: Talk about it. That's right.
Andrew Weissmann: Because what do you think about the military going all over the United States? This is one where, obviously, that's going to be a main topic and we're going to cover sort of the globe on that. But, Mary, this is where I find it hard, especially on air, not to react first as a policy matter and as a human, and to put the lens on, which is really why I'm there and you're there, which is what are the legal issues.
Mary McCord: Right.
Andrew Weissmann: It's just the reason I find it so hard is that you feel like it's normalizing what is happening. And so, even when you can cobble together a good faith legal argument, it leaves aside the, what on God's green earth is somebody thinking about?
Mary McCord: Right.
Andrew Weissmann: Why would you do this?
Mary McCord: Why would you ever, even if you could. Yeah.
Andrew Weissmann: And so, I want to make sure people understand, while we're going to talk about the legal issues, neither Mary nor I wants to normalize this because the biggest picture, and I think most people coming at this, are correctly thinking this, yes, I want to understand how this could be legal or not legal.
Mary McCord: Yeah.
Andrew Weissmann: But that is a very separate issue from, why would you possibly do this?
Mary McCord: Why would you want to do it, honestly?
Andrew Weissmann: Right.
Mary McCord: So, we've done a lot of foreshadowing here.
Andrew Weissmann: Exactly.
Mary McCord: We haven't gotten to the meat. We will be talking. Last week, we already had the start of litigation filed by both the state of Oregon and the city of Portland challenging the orders to federalize the National Guard. We will talk about the ruling on that case over the weekend, the almost immediate attempt by the government to get around that ruling, and the equally immediate second ruling from the court saying, no, no, no, no, no. You can't get around my ruling like that. I'm barring the rest of this.
We had immediately the city of Chicago and the state of Illinois filing a case yesterday because the president has done the similar thing that he did in Portland to federalize National Guard and send them into Illinois. So, we will talk about how that all has come up and what the legal issues are. And, of course, Judge Immergut's really, really terrific ruling in terms of she really broke things down in a very, I think, understandable and methodical way.
Andrew Weissmann: She is the judge who is handling the case out in Oregon.
Mary McCord: That's right.
Andrew Weissmann: And she, spoiler alert, was appointed by Donald Trump in the first term. That becomes relevant when we talk about what the White House reaction is to her ruling.
Mary McCord: And then, you know, sticking with military action, the theme this week really is military action. We will move out to the high seas, the Caribbean Sea, where we have seen now the fourth lethal strike supposedly against boats carrying drug cartel members and drugs, although we don't have actually any proof of that. Talk about the legal authority or lack thereof for that. We've raised that before, but it is really escalating. And now we have a little bit more of a picture about what the government's rationale is because the government actually provided notice to Congress under what's called the War Powers Resolution Act, which requires notice when the government is engaging in hostilities.
And we'll talk a little bit about what the government's rationale is for that. And while we are recording this, the Attorney General Pam Bondi is testifying before the Senate Judiciary Committee, and we hope that they will be asking her some questions about the legal authority for that.
Andrew Weissmann: As well as a host of them. But I was going to do a shout out because people will recall that Tess Bridgeman and Ron Goodman have been two guests for us. And Tess is obviously a huge expert on war powers that you and Tess put together a list of questions for people to think about in terms of what you would want to ask Pam Bondi. So we will sort of incorporate that into our discussion.
Mary McCord: And then, assuming we have any minutes left, we will talk a little bit about some of the other things that have happened in the last week, including a decision by Judge William Young. This is a Reagan appointee in the case that was challenging the Secretary of State and Secretary of Homeland Security's revocation of student visas based on supposedly people who are supporting the pro-Palestinian cause being dangerous to national security. And he concludes that this was done in retaliation for the exercise of First Amendment rights. But he says much, much, much, much more than that.
Andrew Weissmann: Yes, he does. But speaking of retaliation, that goes to the other piece because many of you may be thinking, whatever happened to Kilmar Abrego-Garcia? You'll remember he was extracted to El Salvador at the time there was an order that that was the country he could not be taken to.
Mary McCord: It was a mistake.
Andrew Weissmann: Yeah, exactly.
But there is a really interesting decision out of the criminal case that is still pending with respect to Mr. Abrego-Garcia that is very much about retaliation and is very much about what is called under the law, vindictive prosecution. That is something that is probably a little bit of a precursor to something we are both on the lookout for James Comey making that kind of motion. He is scheduled to be arraigned now tomorrow.
And so that issue of vindictive prosecution is one that there's now an opinion on. It is extremely unusual, and it is also sort of a bellwether of what we might expect in other cases going forward.
Mary McCord: That's right. But wait, one more thing before we actually dig in. Only because you raised Jim Comey, there is new reporting by MSNBC last night, Carol Leonnig and Ken Dilanian, what a great team they have made, that the chief of the criminal major cases, also in the Eastern District, but this time down in the Norfolk office of the Eastern District of Virginia, is recommending no charges, no prosecution against Letitia James because of insufficient evidence. And that's according to sources.
The expectation is that she may lose her job for telling the truth and trying to prevent targeting somebody that would appear to be for political purposes when there's actually not sufficient evidence to get an indictment or to actually try a case beyond a reasonable doubt.
So this pattern continues. Okay, let's actually jump in.
Andrew Weissmann: So Mary, what happened over the weekend was fascinating because as you said, in Oregon, there was not one but two separate decisions from Judge Immergut. It's worth noting that she got the case after the initially randomly chose judge recused himself and said that there would be an appearance of impropriety, I'm not going to do this, there were allegations raised with respect to the work of his spouse, and he said, I'm not going to hear it.
Mary McCord: Who was an elected representative whose district included Portland.
Andrew Weissmann: Right.
Mary McCord: Right.
Andrew Weissmann: And so the government raised that. By the way, that is a good faith motion to make, and the judge responsibly said, you know what? I think that's a fair point, and he recused himself. And so then the government and the plaintiffs got a new judge assigned, who is Karin Immergut, who as we said, was appointed by Donald Trump in his first term. That did not stop Stephen Miller and others based on her rulings to say that she's engaged in legal insurrection, and taking her to task that this is all sort of a big democratic terrorist. I mean, these words are being used.
Mary McCord: Yes, they are.
Andrew Weissmann: A democratic terrorist assault that is preventing the administration from engaging in its lawful action.
I will say having listened to the White House press secretary speak about this that I thought she was more measured so I just I don't want to paint with a broad brush. She said with all due respect to the judge, you know, we disagree with her factually, we disagree with her legally, and we're going to appeal it. That is a totally fair response.
The issue was should there be a temporary restraining order, and this I'm going to sort of tee it up for you, Mary, because I think the big picture has been sort of a theme, which is, in many ways, this is a factual call as to what are the facts on the ground. What is the factual record before the district judge and how much is the court going to defer to the president's fact finding when it's just not supported by what is actually happening on the ground. When the president wants to say black is white, how much can the court say I do not have to totally defer to that when I have a record before me, even if I give you a lot of deference, because I basically took Karin Immergut to be saying in wonderful measured language. You are lying, and I do not have to accept that I will defer to you greatly, but not what it's a lie.
And she uses the administration and Donald Trump's own words, including that this is war ravaged Portland, and she does a very, very meticulous, fair minded reading of everything that is in the record and all of the violence and nonviolence and there's she doesn't sugarcoat it. She says this is what has happened and she goes through it sort of week by week. What does the record show in terms of the level of protests, the level of people who are engaging in wrongful conduct, and she then evaluates that to say it is simply not the case that you can say that the facts support what the president wants to do.
Mary McCord: Presidents determination was untethered to the facts were her words.
Andrew Weissmann: Yes.
Mary McCord: So let's just make sure we're all on the same page about what happened because last week we certainly talked about how over the weekend, the president through the Department of Homeland Security and the Department of Defense had first reached out to the governor of Oregon and said, we're asking you to voluntarily use your National Guard under Title 32 Section 502 F right to protect the federal functions. And this is really all about ICE. I mean, there had been some protests and that's what we'll talk about outside an ICE facility in Portland. The governor declined, said our law enforcement are perfectly capable of policing these protests, which have been peaceful. And actually when that request was made to the governor, she was told you have 12 hours and if you don't voluntarily call up your National Guard, we will federalize under Title 10 Section 12406.
And so that is what they did and that is what was challenged. And at that point, it was a federalization of the Oregon National Guard. And that statute people will probably recall because it's the same statute that was used to federalize the California National Guard in response to protests in L.A. It applies when they're one of three preconditions. And this is what Andrew was talking about was he was talking about do the facts meet these preconditions. The first one is a foreign invasion. Obviously, that's inapplicable. The second one is a rebellion or danger of rebellion against the authority of the government of the United States. The government here did rely on that, but they predominantly relied osubaru magsn the third basis criteria for when you might be able to federalize the National Guard. And that is when the president is unable with the regular forces to execute the laws of the United States.
Andrew Weissmann: Can you just say that again because that's really the key language because you're really looking at what can normal law enforcement do?
Mary McCord: That's right.
Andrew Weissmann: And so what was the language again?
Mary McCord: And this is the president, and it's also oddly worded because the police power right is reserved to the state. So here it's saying the president is unable with the regular forces to execute the laws of the United States. So Portland and the state of Oregon sued saying none of these criteria are met here. Yes, there have been protests, but in recent weeks and months, the protests have been nonviolent. There's been maybe 20 people. The worst kind of things that have happened is like shining flashlights in the likes of the ICE agents when they leave this facility. There's just not any situation that is either a rebellion or danger of rebellion against the authority of the government of the United States, nor is the president unable with regular forces to execute the laws. They are out making their ICE arrests. And to the extent the protests are happening, these have been peaceful and have not resulted in acts of violence.
I want to start with the very first paragraph of Judge Immergut's opinion because last week we talked about the rule of law, right, and what the rule of law meant. And this is exactly what she talks about in the very first paragraph. And I just want to read it.
This case involves the intersection of three of the most fundamental principles in our constitutional democracy. The first concerns the relationship between the federal government and the states. The second concerns the relationship between the United States armed forces and domestic law enforcement.
This is me speaking, not her. Like this is an area we've talked about, right? Congress has said and the founders believe from the very beginning, we don't want the military being in the ones enforcing law in the United States.
The third concerns the proper role of the judicial branch and ensuring that the executive branch complies with the laws and limitations imposed by the legislative branch. Whether we choose to follow what the Constitution mandates with respect to these three relationships goes to the heart of what it means to live under the rule of law in the United States. I just could not agree more with the way she teed up what is at issue here and how important it is to the rule of law. I think it was a really good way to start her opinion where she goes then through the facts and the law.
Andrew Weissmann: We will attach it to our show notes because it's really written so that largely a non-lawyer can understand it. And that's why I think it's sort of written that way. I did want to just make one quick point that in June, and this is something that Judge Immergut got definitely outlined, there were some acts of violence. And she delineates them and I just want to make sure the timeline for this is clear that while those happened, by the time that the order was issued in terms of what the president was saying what to do in September.
Mary McCord: Late September.
Andrew Weissmann: Right. That's where she said you have to look at what's the factual record there. And critically to Mary's point on this unable to deal with it, she turns the argument on its head from what the government's saying because she said when you say there were these acts that happened that were largely sedate is the way it was described at the local police force. She said this is an example of that the local police department was able to deal with it.
Mary McCord: Exactly right.
Andrew Weissmann: And ICE was able to deal with it. Yes, there was activity that she said shouldn't have happened that was deplorable or unconscionable. But she said all of this is something that could be dealt with.
And so what she's saying is the government's argument, for instance, which is, oh, but you're causing the federal government to have to divert its resources and we're having to call people from other parts of the county or state to deal with this. She said that can't possibly be the argument here because this is sort of a point we've been making. Under that theory, you could have federal forces everywhere in the country by just saying crime is occurring and you need to call in people from elsewhere. That is not being unable to deal with something. That is being able to deal with it. It is such a solid opinion. It is going to be fascinating to me to see what happens on appeal here. She also very much aligned herself with the decision out of the Ninth Circuit from the Judge Breyer case and Judge Breyer's own rulings factually. Legally, she is very aligned with those various decisions.
Mary McCord: Yeah. And I think the point you just made is really important because it is important that she went through and said, like, factually, there's not a situation on the ground where there's violence occurring related to these protests right now. But even more important is even assuming there was, right, even assuming there were acts of violence, what you've got to show to say that the president is unable with the regular forces to execute the laws means that ICE is not able to do its function because there is so much violence against ICE that it can't do its function.
You can't just say, oh, there's violence. Therefore, we can federalize the National Guard. And here we had neither ICE unable to perform its functions, nor did we have the regular law enforcement unable to secure the situation. So, you know, there's just not the facts that support. And this is where when you said relying on the Ninth Circuit, people should know that both California and the state of Oregon are states within the Ninth Circuit. So back when Judge Breyer originally had enjoined the federalization of the National Guard in California, saying that the predicates hadn't been met, that went to the Ninth Circuit. The Ninth Circuit stayed that opinion, saying a couple of things. One, rejecting the government's argument that it's the president's decision under Title 10, Section 12406 is unreviewable.
That was rejected by the Ninth Circuit. The Ninth Circuit made clear in reliance on an old case called Sterling and some other cases that the statute here presumes that the president is going to make determinations in good faith, in an exercise of honest judgment. And so these things can be reviewed.
It then said, but here, given some of the violence that had been occurring in L.A., very, very different than what we had seen in recent weeks and months in Portland. They said, we think we need to stay this injunction and go back and do more work, really, to drill down further into the facts about whether the president is unable with the regular forces to execute the laws of the United States.
After that, people will recall Judge Breyer had a trial and determined that the federalized National Guard was violating the Posse Comitatus Act, and that is now up on appeal. But Judge Immergut, she followed that ruling of the Ninth Circuit saying, I can review this. And here the factual predicates haven't made. And a couple of things I think are important. She said, the president's own statements regarding the deployment of federalized National Guardsmen further support that his determination was not conceived in good faith or in the face of an emergency and directly related to the quelling of the disorder or the prevention of its continuance.
And that's because she went through all of the things that he was saying about Portland on social media that did not match up to facts on the ground at all in any way, shape or form.
Andrew Weissmann: So this is going to be a theme as we go forward today, this idea of using statements from the president and the administration in court to not let them be able to say one thing in court and another thing publicly. And so to Mary's point, she cites the president saying that the situation in Portland is out of control and crazy.
Mary McCord: War ravaged.
Andrew Weissmann: Another quote, nobody's ever seen anything like it. It's happening every night with people that, quote "just burn the place down" unquote, every night for years. That's another quote. He promised to do a pretty big number on the people in Portland that are doing that. He described it as you said, war ravaged, and that it's happening with ICE facilities under siege from attack by Antifa and other domestic terrorists. I am also authorizing full force if necessary. And it goes on and on. The description of this is lawless mayhem, viciously attacking, that there's chaos, death, and destruction.
So all of that then is put in context with a incredibly meticulous and I would say very faithful to the record description from the judge, not sugarcoating it, but to say what was going on and especially the trajectory of what was going on just does not meet that legal standard. But it really is taking on the good faith of the president and this idea of this is allowed of essentially making this a bad faith unilateral executive action where the court is no longer playing a role.
So to me, what is at stake here, since we don't have a functioning Congress, is this is saying that the courts do have a role to play and saying, I'm not going to say black is white and I'm not going to defer to you that when the record does not support it.
Mary McCord: I think it's also the last point. She concludes there was no basis, no colorable basis for the president to use Section 12406. She also goes on to say there's no rebellion and borrows from what Judge Breyer had concluded with no rebellion. She then goes on to find a 10th Amendment violation, at least on this preliminary record. The 10th Amendment, as we've discussed before, reserves all powers to the states that are not expressly given to the federal government. So that's not only the police power, but also the power over the state's own militia, its own National Guard. And I think that's significant here because this is basically commandeering a state's National Guard without authority. And she says if there's not authority in the Constitution or in a statute, there's not authority for it. And here, no constitutional authority and obviously the predicates for the statute weren't made.
She concludes, though, because she has to find that there's irreparable harm and the balance of the equities require her to issue this temporary restraining order. And she says some things that I think are very important. This country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. The historical tradition boils down to a simple proposition. This is a nation of constitutional law, not martial law. Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power to the detriment of this nation.
Andrew Weissmann: That is a wonderful place to take a break and then we can come back and talk about how the government responded and how that led to Judge Immergut issuing a second TRO, because that then is directly related to what is happening in Chicago.
So let's take a break and come back and talk about that.
(BREAK)
Andrew Weissmann: Welcome back.
So normally, what happens when a judge issues a ruling like this is you might appeal it or you might seek to re-argue it, but you don't try and circumvent it. And that is exactly what Judge Immergut said when the following occurred and was brought to our attention by the plaintiffs, which is sending in the National Guard, but not the Oregon National Guard, the California National Guard. And that, just to be clear, how crazy we're getting into, is that wasn't with the governor of California agreeing and it wasn't with the governor of Oregon agreeing. It was just the federal government going, we're federalizing and we're sending them in.
Of course, nothing about the reasoning in her decision would lead any responsible government lawyer to think, oh, well, it was unique to just Oregon, and that's what she said. She said, is this how you treat the judges these days? Is that how you react to a judicial decision? I mean, it's totally fair. And I've been in that situation where you have a decision and you might think there's some ambiguity. You go back to the court and you ask them.
Well, they, of course, didn't do that. And so they went back and she ruled against them and broadened the order to say it's going to apply to the federalized members of the National Guard in any state or D.C. or basically anywhere in the world it applies. Like, just knock it off. The way you deal with this is appealing it. And so that, again, tells you everything that's going on. That is a perfect segue to Illinois. There's a lot going on, but briefly, what are they doing there? What are the lawsuits that have been brought and where do we stand, Mary, in terms of the military being called in there over the opposition of the sitting governor, Governor Pritzker?
Mary McCord: Yeah, so it really is a very similar timeline as in Portland. I think we mentioned up at the top. President Trump has been talking about Chicago for a very long time. In fact, it was something of a surprise that he then decided to seek having troops in Memphis and in Portland before Chicago because he has been talking about Chicago for quite a while. And I should just have a little footnote here. Memphis, what's happening there? Well, in Memphis, we had a governor who, when the president and through the Department of Homeland Security and Secretary of Defense went to the governor and said, you have a crime problem in Memphis, we'd ask you to voluntarily use your National Guard under Title 32, Section 502(f) unlike Governor Pritzker, unlike Governor Kotek. That's the Illinois and the Oregon governors.
The governor in Tennessee said, okay, so right now we have not federalized National Guard, but we have National Guard under the governor's command that are engaging in some type of law enforcement activity in the city of Memphis. That's very different from what happened again in Chicago. Same thing, they went to the governor, said, will you use your National Guard? He said, no, our police are able to handle the situation. This again was a lot of this was related to protests around an ICE facility there, not even a detention facility, just I think a processing facility. And then the president ordered the federalization of the Texas National Guard and the Texas National Guard to go into Illinois.
So the state and the city immediately filed suit and their suit makes many of the same type of arguments in Portland, but it adds an additional lengthy, lengthy recitation of so much that the president and his administration have done to target Chicago and the state of Illinois really ever since basically January 20th or very soon thereafter. Starting with the fact that because Illinois is a sanctuary state, it does not allow its law enforcement to voluntarily cooperate with ICE. It does what the federal law requires it to do, but does not engage in voluntary cooperation. So it has been targeted already on multiple occasions, sued by the Department of Justice based on its refusal to voluntarily cooperate. That suit was thrown out on a motion to dismiss by the court there. The state has had to sue about the federal government cutting off grants because it would not engage in voluntary cooperation with ICE.
So the lawsuit lays out all this targeting as part of saying essentially it is a pretext to use the National Guard to come in ostensibly either, because it's a little unclear, to do general crime control for the crime problem in Illinois or to protect federal functions because of protests around ICE. So again, little unclear. The point of the complaint is to set up this entire chain of events of targeting Illinois and the city of Chicago to ultimately say not only did the facts on the ground not warrant it for all the same reasons we talked about important, but also this is really just a pretext for really just trying to attack Illinois.
Andrew Weissmann: Yeah. And it really gets down to what Judge Immergut said, which is that the law is assuming good faith. And so when you're giving the president and the executive deference and you're saying you're going to defer to their fact finding, it is assuming good faith fact finding. And she was helped out by the facts on the ground to say that when you see no facts on the ground, it seems pretty clear that this can't be in good faith. And so you have the same kind of argument being made. Obviously facts matter and also how much you're willing to defer is obviously a big issue for the courts.
Now Judge Immergut is in Oregon, so her decision is not controlling on what happens in Illinois, but it can be looked at --
Mary McCord: Sure.
Andrew Weissmann: -- as can Judge Breyer, as what's called persuasive authority, but it is not binding on the courts there. And of course, Chicago is in a separate circuit. It's a separate federal appeals court there, which I believe is the Seventh Circuit. And obviously it all goes up to the Supreme Court. Yeah.
Mary McCord: And I will just say for people wondering what the status of that is, and some people I think thought that when the court had a status conference yesterday in Chicago and didn't issue a TRO that she was ruling in favor of the Trump administration. Absolutely not. That was a scheduling conference. She gave the government until tomorrow night to file its response and a hearing is on Thursday. So Thursday is when she will hear both sides. And it's interesting because in her ruling directing the government to file its response tomorrow, she was very specific saying you need to include evidence about when National Guard troops will arrive in Illinois, right? Because this could be material to how soon she needs to issue a ruling, what municipalities they're going to be sent to, and what is the scope of their activities once there. She wants the government to tell her all those things very specifically so that she can make a ruling.
Andrew Weissmann: Okay. Stay tuned for that.
So let's switch to, we've been looking at domestic use of the military. We have now seen continued strikes on boats that are emanating from Venezuela that are alleged by the administration to be connected to drug trafficking and drug dealing. And there's been a lot of talk and we have talked about what is the legal authority here. And the latest reporting, this is CNN reporting, is that apparently the Department of Justice has, according to the reporting, a classified, not public, not even not public, but not classified, but apparently there's an opinion from the Office of Legal Counsel, which is for lack of a better term, sort of the think tank and arbiter of law points that is by a norm, not a law, is deferred to within the government as setting out what the law is.
And apparently there is what's called an OLC, Office of Legal Counsel, opinion addressing the lawfulness of what is happening in Venezuela. That's the reporting, but we don't know what it said. There's no reporting on what are the details. And that's where the rubber hits the road, because Mary, you and I have been talking to lots of people about this, and it's really hard to figure out how this is lawful.
Mary McCord: It's interesting too that you said four strikes on boats from Venezuela. I'm not even sure the government has been clear that all four of those were supposedly from Venezuela. That is certainly the first one, but they haven't said --
Andrew Weissmann: Absolutely.
Mary McCord: -- what drug cartel members are on board. The government said which drug cartel that they have targeted, and the president did, through a process, designate several drug cartels as foreign terrorist organizations earlier this year. And I think some of these strikes may have been on those, maybe all of them that he had designated, but the reporting about the Office of Legal Counsel memo, and again, this is CNN reporting, says that the memo argues that the president is allowed to authorize deadly force against a broad range of cartels because they pose an imminent threat to Americans, and that the list of cartels goes beyond those the administration has publicly designated as terrorist organizations, the people familiar with the opinion said.
So that really does sort of open up a huge potential for abuse here. But let's tether this right now, this reporting, to what government actually did provide to Congress, its War Powers Resolution Notice, and this is something that is required when the government enters hostilities. So for example, after the strike on the Iranian nuclear facilities earlier this year, that is when the government did provide that notice to Congress about the hostilities that it engaged in and why. And really what it does is it sets up a 60-day clock for Congress to either say thumbs up on this or thumbs down.
So that's interesting that they did that because now Congress does have a role to play. And so it'd be very interesting to see if Congress will play that role, especially because it seems to me that the notice is really, really --
Andrew Weissmann: Thin?
Mary McCord: Yes, the conclusions there are very thin.
So essentially what it says is that these cartels are now transnational and conduct ongoing attacks throughout the Western Hemisphere as organized cartels. Therefore, the president determined these cartels are non-state armed groups. So we're not talking about an attack by a country like Venezuela, for example, or Colombia or Mexico.
Andrew Weissmann: Yeah, it's more like ISIS.
Mary McCord: That's right.
Andrew Weissmann: So it sort of came up in that context when you have terrorist gangs, you're looking at they're not solely within, it's not a country, even if countries are supporting them?
Mary McCord: If they are, and that's a whole another question, right? And that's why this idea of non-international armed conflict came up when you're fighting not against another nation, but against a terrorist organization. Okay, so he says, "The President determined that these cartels are non-state armed groups, designated them as terrorist organizations, and determined that their actions constitute an armed attack against the United States. In response, based on the cumulative effects of these hostile acts against the citizens and interests of the United States and friendly foreign nations, the president determined that the United States is in a non-international armed conflict with these designated terrorist organizations. The president directed the Department of War to conduct operations against them pursuant to the law of armed conflict." Right? That's the law that governs when you are at war.
"The United States has now reached a critical point where we must use force in self-defense and defense of others against the ongoing attacks by these designated terrorist organizations."
And then he says that this is under his authority, constitutional authority, as commander-in-chief and chief executive to conduct foreign relations.
Andrew Weissmann: So that you can be pretty sure will be one of the topics for Attorney General Bondi, as lots of other questions as well. But the fact that it is classified, in other words, that this is CNN reporting, but it's of a classified document, means that we're unlikely to hear more in this setting, in a public setting.
That's right. There is a way for Congress to get more information in a classified briefing, and they have two committees that do this. The House has something called HPSCI, the Senate has something called SSCI, don't get me started on the name.
Mary McCord: Those permanent select committees on intelligence.
Andrew Weissmann: Yes, but they very frequently have classified briefings, so they could get more information that way. And so this is very much a stay tuned.
Mary McCord: And just to clarify, what I read is not classified. That has been made public. That is the notice to Congress. But what we're learning from the CNN reporting is that that was based on an OLC memo that was not even restricted. And so I think the upshot here, a couple of things, the piece that you flagged in the opening that Tess and I did was before we had heard about this OLC memo, so we now at least know there was one. I mean, it was suggesting asking the attorney general questions like, were you or was OLC even consulted before this happened? Well, it least appears that that was the case. But also, why is this not murder? Congress hasn't given any legal authority to do this. Congress hasn't declared war. The notion that boats of cartel members, let's assume they're bringing drugs to the shores of the United States, that is a terrible thing. Drugs here that have come from other countries have killed many, many, many hundreds of thousands of Americans. No question about it. But that is not an armed conflict, right? That is a crime that we have criminal authorities to deal with. The Coast Guard interdicts those boats. You can seize the drugs. You can seize the cartel members. You can charge them. You can prosecute them. So we have remedies for that.
Andrew Weissmann: Just to be clear what those remedies are. These remedies can include jail for lengthy, lengthy periods of time up to and including life. And if the drug crime includes, for instance, murder, then it in fact can include the death penalty, obviously in very rare circumstances. But this is imposing the death penalty by blowing these boats up and these people up with no process, right?
Just to be clear, it's basically saying we're going to apply as if we're in the middle of World War II and we actually have an actual armed conflict and we are outside of the rule of law. But within the rule of law, there is both due process, but there also is a regime for what are appropriate sentences. And it is not without a whole hell of a lot of due process, the death penalty.
Mary McCord: That's right. And I think that the real upshot too, and not to be hyperbolic, and these are some of the questions I would be asking the Attorney General, although there's so many other things to be honest with you also that she needs to be asked. If you can do this on the high seas because the president decides cartels are in armed conflict with us, then you could do this in Boston or Peoria, Illinois, in New York City, Washington, D.C., Portland, Oregon.
Andrew Weissmann: How is it that this does not apply within the United States under this rationale? And just to be clear, the Supreme Court has been very protective in older cases, so not this Supreme Court, about what can be done domestically precisely because of the concern about misuse politically, that it would be used by an administration against their adversaries. Sound familiar? I'm actually referring to a Justice Powell decision that Mary and I know very well.
And so that issue, we should be concerned about it even if it is just happening overseas.
Mary McCord: Yes, we should.
Andrew Weissmann: It is still abhorrent if there is not a sound legal basis. It also reminds me of something that I was always told, which is, this is not an area where you're talking about death. You are killing people, where you should be going along with a gray area of the law. In other words, this is one where if we, Mary, were inside the department still and looking at this, one of the factors would be like, how confident are we in our legal position? Because we can't take this back in terms of what is happening. And that is why even with domestic death penalty cases, the law, including the Supreme Court law, says over and over again, and the phrase is, "Death is different, because it can't be rectified."
Mary McCord: True.
Andrew Weissmann: And so here, a lot of people who know a lot more about this area than I do are really scratching their heads going. It's really hard to see how this legal opinion that we don't have could get to this conclusion in good faith. It reminds me so much of the Bush administration post 9/11 where the claim was that torture isn't torture and people were sort of like, how do you get there? And it turns out that those opinions were withdrawn by subsequent administrations saying that they were improvidently written.
Mary McCord: That's right.
Andrew Weissmann: More on this later. Should we take a break and talk about Judge Young and Abrego Garcia? I have to say, I'm particularly interested in talking about Abrego Garcia. I want to make sure he is not the forgotten man here, given what happened to him.
And there's so many people like him, but he represents so much about the rule of law in this country and what it means. And once again, we're going to sort of have a positive note because we talk about the judge in his case and we talk about the judge in Massachusetts. Both of them are standing up for the rule of law.
Mary McCord: That's right. Yes. Let's take a break and come back and talk about both of those things.
(BREAK)
Mary McCord: Welcome back.
So I think a good transition, like we talked about at the top of the episode, to talking about the vindictive prosecution ruling that the judge made in the Abrego Garcia criminal case is to start with Judge William Young's case in Massachusetts. His decision essentially held that there was viewpoint discrimination, First Amendment retaliation in the revocation of student visas done to really tamp down the speech of the plaintiffs there, which are associations of faculty and researchers and graduate students at universities, etc.
And to just get to ultimately his conclusion, he determined that the intent of the secretaries, that is the Secretary of State, Marco Rubio, and the Secretary of DHS, the Department of Homeland Security, Kristi Noem, was invidious, he said, to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act in ways that had never been used before to have them publicly deported with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen and other pro-Palestinians into silence because their views are unwelcome.
And we're talking here about this use of some obscure provisions by the Secretary of State to withdraw student visas and seek to deport students and graduate students and researchers at universities that we have talked about before. We talked about the story of Ms. Ozturk, for example.
And he also says, "What is clear is that the president may not have authorized this operation or even knew about it, but once it was in play, the president wholeheartedly supported it, making many individual case-specific comments, some quite cruel, that demonstrate he had been fully briefed."
Now, that's sort of the basics here. And what he does after 161 pages is says, "I'm going to have to have a separate hearing to talk about the remedy, having found that there was First Amendment retaliation." And he goes through pages and pages and pages and setting out statements by the administration, by Secretary Rubio, by Secretary Noem, by Stephen Miller in the White House, that's deputy chief of staff, by the president, right, to show the targeting of these individuals and the impact that it then had on others.
But what we don't have time for and what some people have heralded as a tour de force, others have said this is not really something you want to see in a judicial opinion, is he also goes on for page after page, I think just really expressing his extreme frustration as a judge appointed by Reagan, so he's been a judge for probably something like 40 years, about what he is seeing in this country, what he is seeing that he thinks is an abuse by the president of executive authority, abuse by ICE and the Department of Homeland Security of people's rights. He has pages he talks about how wrong it is to them to wear masks. "ICE goes masked for a single reason" he says, "to terrorize Americans into quiescence" and talks about how our military would never wear masks, yet we've got masked ICE agents.
So this is somebody I really feel for him because I feel just as frustrated as this. It's a lot to be in a judicial opinion, people have different opinions about it, but his bottom line I think is completely accurate. This is targeting people because of their speech. Oh, I should also say, he makes very clear from the top, people in this country have First Amendment rights, whether they're citizens or not, full stop.
Andrew Weissmann: Right, exactly. That is sort of his big legal point is, you're in this country, you have First Amendment rights and disagrees with the administration's view. And Mary, that's something I know dear to your heart in the separate context of birthright citizenship.
Mary McCord: That's right.
Andrew Weissmann: Essentially having this sort of xenophobic nativist reaction. Let's turn to yet another terrific decision, and this is Judge Crenshaw. Judge Crenshaw is in Tennessee, he is handling the criminal case involving Mr. Abrego Garcia. Mr. Abrego Garcia has claimed that the criminal case was brought as a result of what's called vindictive prosecution. I'll turn for a second in a moment to what that is. And is saying that, I want the case dismissed. And if you don't dismiss it outright, I at least want discovery on my claim of vindictive prosecution.
What is vindictive prosecution? Let me turn to what the judge himself says. "The Fifth Amendment forbids the government from punishing defendants for exercising their constitutional or statutory rights." For instance, if you were to appeal your case because you think the district judge got something wrong, the government can't retaliate for that and suddenly treat you worse. That's an example. And so here, Mr. Abrego Garcia is saying, I was retaliated against because I brought this civil suit in Maryland. And by the way, a meritorious civil suit in Maryland that went all the way up to the Supreme Court that ruled 9-0 that my due process rights were violated.
Mary McCord: And that civil suit, just to be clear, was after he had gotten, quote-unquote, "mistakenly" expelled from the country, put in a terrorist detention center, and was stuck there.
Andrew Weissmann: Exactly.
So I'm going to start by just reading something that the judge starts with himself as what the prosecutor's role is and what you can do and cannot do. And so let me read. "By way of context, a federal prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.
As a representative of the state, a prosecutor's exercise of coercive power must be impartial, and that prosecutorial power may not be exercised vindictively, meaning that the prosecutor may not punish a defendant for exercising a protected statutory or constitutional right. And here, what the judge ultimately concludes, there's lots and lots of facts and reasoning here, is that there is enough showing of vindictive prosecution to raise sort of that presumption that allows Mr. Abrego Garcia to get discovery.
The judge says, you know what? After discovery, maybe the government will come up with neutral reasons. Maybe they will satisfy why this is not vindictive, but there's enough of a showing here. And two key things that he relies on are the timing of when the criminal case was started, and second, what the Deputy Attorney General of the United States said about why they were going forward.
The timing is that essentially, and he gives lots of dates and figures, of this criminal case having been started just shortly after the government lost in Mr. Abrego Garcia's civil case, and that the criminal case, there had been one based on an investigative stop, but it had been closed, and talks about how this case had been closed, and then compares it to all of the other cases in the district, of which there's data, and says this is the only one that has been resurrected this belatedly, and just within days of the government having lost its civil case in the Supreme Court.
Mary McCord: And actually, the days, I think, are pretty interesting, right? Because he talks about only 58 days passed from the time Abrego Garcia filed his suit against his unlawful deportation in Maryland, and when he was indicted in the District of Tennessee, again, on charges brought this year based on conduct alleged to have happened all the way back in 2022. An investigation that had been closed got reopened after he filed his suit. He says, all of this timing, he goes through every date, and then says, all of this stands in stark contrast to the 832 days the HSI investigation into Abrego-Garcia had remained pending without any referral to the U.S. Attorney's Office for prosecution before his lawsuit against the executive official defendants commenced, his lawsuit about unlawfully being deported.
So 832 days, they're like, nah, close this. Now, boom, you sue us, you win, we're indicting.
Andrew Weissmann: And it just so happens, and what is the intervening event? What is the thing that leads the judge to say, "There's enough here to get discovery?" The intervening event is the Supreme Court and the civil suit and losing.
But he says there's more, because you don't really need to speculate, because he says in two places in this decision, points it out so starkly, saying that it is remarkable to see in print the Deputy Attorney General of the United States link specifically the criminal case to what was happening in the civil case in Maryland.
And here's the quote, "Most tellingly, Attorney General Bondi's direct report, Deputy Attorney General Todd Blanche, linked Abrego's criminal charges to Abrego's civil lawsuit in Maryland. Strikingly, during a television interview, Deputy Attorney General Blanche revealed that the government started investigating Abrego after a judge in Maryland questioned the government's decision, found that it had no right to deport him, and accused the government of doing something wrong." Unquote.
Mary, to tie this way back to Judge Immergut where we started, using the language that the people in the administration, up to and including the president, and here the Deputy Attorney General, against them. So it's like there isn't going to be an unreality in terms of what happens in the courtroom. They're going to recognize and use admissions by the government in their case. And so here, just to be clear, the judge is not saying, I'm finding vindictive prosecution. It is that they're entitled to discovery. And so Todd Blanche and other people can come back with legitimate reasons for why they did this. But this is so unusual because, Mary, you and I have had these kinds of --
Mary McCord: It's hard to get discovery. Yes, it is.
Andrew Weissmann: It is so hard. The Supreme Court has set very high standards to get it. I have never had a case where I can think of where that's been allowed because usually there's no showing of it.
Mary McCord: That's right.
Andrew Weissmann: There's usually very good reasons for why you did something and you're not even remotely thinking of being vindictive.
Mary McCord: That's right.
Andrew Weissmann: It's like all of your steps are there for the purpose of advancing the case in a valid way. So there's good reason that this is rare. And here, Judge Crenshaw joins Judge Young, joins Judge Immergut in ruling against the government. They are not some lower court cabal. They are not part of some democratic domestic terrorist group. They are judges doing their best. Some may be reversed, some may not. That is how our legal system works. But the vilification is the point. And to have people not see them is what the rule of law is, is the point. And it is still very good news in terms of the rule of law that we are seeing judges of various stripes and persuasions and across the country.
So we have talked about Portland, we have talked about Tennessee, we have talked about Massachusetts, where judges are looking at reality and saying this does not comport with the rule of law.
Mary McCord: They are really trying to hold the line. They're very concerned and so are we. And I think probably so are our listeners.
Andrew Weissmann: Well, that ends another episode. Thank you all very much for staying tuned and listening and staying engaged. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free, and you'll also get subscriber-only bonus content.
Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producers are Iggy Monda and Ranna Shahbazi, and our intern is Colette Holcomb. Bob Mallory is our audio engineer. Katie Lau is the senior manager 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.