President Trump’s pressure campaign to take action against perceived adversaries is unrelenting. Mary and Andrew start this week by breaking down a public push for Attorney General Pam Bondi to prosecute Trump’s political foes, just as Virginia’s U.S. Attorney was ousted for failing to bring charges against Letitia James and Jim Comey. The focus then turns to the government’s attempt to control critics and silence opposition after last week’s abrupt suspension of Jimmy Kimmel, backed by FCC Chair Brendan Carr, as well as what the president designating ANTIFA as a “terrorist organization” actually means. On the flip side comes the effort to dismiss investigations into those aligned with Trump’s cause. See MSNBC’s reporting on the FBI bribery investigation into “Border Czar” Tom Homan that was shut down after Trump returned to office. And last up: Mary shares the reasoning behind a court’s decision to block the removal of dozens of Guatemalan children, citing that the governments explanation “crumbled like a house of cards.”
And a reminder: There are still tickets available for MSNBC Live – our second live community event featuring more than a dozen MSNBC hosts. The day-long event will be held on October 11th at Hammerstein Ballroom in Manhattan. To buy tickets visit msnbc.com/live25.
Want to listen to this show without ads? Sign up for MSNBC Premium on Apple Podcasts.
Note: This is a rough transcript. Please excuse any typos.
(MUSIC PLAYING)
Andrew Weissmann: Hello and welcome back to “Main Justice.” It is Tuesday morning, September 23rd. I am Andrew Weissmann and I am here with my wonderful co-host Mary McCord.
Mary McCord: Hello, good morning. I think we are officially in fall now that you’ve said the date.
Andrew Weissmann: Fall, that is almost a perfect --
Mary McCord: Description.
Andrew Weissmann: -- perfect description of what we’re going to talk about today. Although just before we got on, I told Mary, and now I’m going to tell all of you that I have a sliver of hope. That is going to be the teaser because I do have --
Mary McCord: Okay. So people have to stick around.
Andrew Weissmann: Yeah, because I do have a slight wisp of a positive take. But with that, in addition to the obvious, which is we’re going to talk about Jimmy Kimmel and what happened there, but we’re going to put it into a legal frame, what are our sort of, what I’d like to call, our three beats.
Mary McCord: So to my mind, we hit a new low this weekend with the president directly ordering his attorney general to take action against political enemies. And it appears that he did so in a Truth Social post that maybe was supposed to be a direct message to Attorney General Bondi, but instead --
Andrew Weissmann: You mean, Pam?
Mary McCord: Yeah, Pam. Yeah.
Andrew Weissmann: Right.
Mary McCord: Now, I don’t know her by, you know, that relationship, but obviously the president does. We’ll talk about that directive that came along with the pretty much forced resignation, which the president is now calling a firing of the nominated and experienced U.S. Attorney in the Eastern District of Virginia who got on the wrong side of Donald Trump because he apparently thought there was insufficient evidence to indict New York Attorney General Letitia James or the former director of the FBI James Comey. So we’ll talk about that along with other real targeting of political enemies, a pretty extraordinary move last night that really has no legal significance, but feels like a threat, which is this designation of Antifa as a domestic terrorist organization, as a means to potentially launch new investigations, and we’ll talk about what that really means. There’s no authority under law for that.
Andrew Weissmann: Right. And it’s sort of funny, when I was thinking about this, and I knew, I just knew that you were going to be like, say what?
Mary McCord: Yeah.
Andrew Weissmann: But to me I’m going to give you already my big picture, which was lawless. So what it said to me is it tells you that there are no lawyers in the White House with sufficient gravitas, even if they could or were pushing back, which we don’t know if they were, but even if they were, they obviously don’t have the gravitas. So they don’t have this sort of Don McGahn role.
Mary McCord: That’s right.
Andrew Weissmann: Don McGahn was the White House counsel.
Mary McCord:In the first, yeah.
Andrew Weissmann: Yeah, the first Trump administration. And this, which is the spoiler alert, is the idea that calling antifa a domestic terrorist organization is not a thing. It is not a law, and we’ll talk about that.
Mary McCord: Yeah. We’ll get into that. And speaking of lawlessness, we’ve got the efforts to really sort of crush the media, right? A completely outrageous lawsuit, defamation, $15 billion filed against “The New York Times”, which was promptly within four days dismissed by the judge for not having the sort of short and to the point allegations that are supposed to be a law in a complaint and instead being just bombastic. That’s obviously an attempt to pressure media not to report negatively about Donald Trump, and you already led with the whole Jimmy Kimmel thing, which we will get into.
So this idea of really trying to pressure the media. And the media, I have to say, has been disappointing in their response. We’ve had, and we talked a little last week about reporters that have been fired and opinion columnists who’ve been fired at such a --
Andrew Weissmann: But just a quick note.
Mary McCord: Yeah.
Andrew Weissmann: As everyone knows, Disney recanted or reneged, and we’ll talk about that. And I think --
Mary McCord: They might say that’s too strong, but they’ve got Jimmy Kimmel back on.
Andrew Weissmann: Exactly. I mean, we’ll get into that.
Mary McCord: Yeah.
Andrew Weissmann: And it’s so funny because from a ratings perspective, Jimmy Kimmel has to be like, hey, bring it on.
Mary McCord: Yeah, really. Now I’m going to have more people just tuning in just out of curiosity. We will also then talk about sort of the flip side of everything we’ve just been introducing for today about the efforts to persecute political enemies. We’ve seen now the Department of Justice squash an investigation that by all accounts appears to have been pretty legitimate into Tom Homan, who is now the czar over mass deportation. Czar under Steven Miller, I would say. But otherwise, the deportation czar, there’s really incredible reporting broken by MSNBC, Carol Leonnig --
Andrew Weissmann: Yeah, Carol Leonnig.
Mary McCord: -- and Ken Dilanian about him accepting $50,000 in cash payments from undercover FBI officers in return for promising to help them get contracts once he was in a position, a high level position, which he expected rightly that he would be in after President Trump was elected. And then we will close out with some snippets from a very, very good ruling from Judge Tim Kelly here in D.C. in the district court in the case involving the unaccompanied minors from Guatemala, a case we talked about last week.
And of course, the Supreme Court having now stayed an injunction against the firing of the last Democratic appointee to the supposedly bipartisan Federal Trade Commission. And the Supreme Court has now taking that on the merits, which looks like it’s a signal that they’re going to overrule a 90-year-old precedent about this. But surprise, surprise, we’ve been talking about that now for months and that the writing is on the wall --
Andrew Weissmann: Right.
Mary McCord: -- but this ascent is like, hey, until you overrule it, it’s still the law. An emergency docket ruling should not undermine our own precedent. And that’s a very good point.
Andrew Weissmann: So let’s turn to the Trump tweet to quote, unquote, “Pam,” the Attorney General of the United States. And it basically said, we need to act now. This came on the heels of his really pressuring and causing the resignation of the U.S. Attorney in the Eastern District of Virginia. Here’s the backdrop that’s so important. That U.S. Attorney is a Trump appointee. He has just gotten there. He is highly respected in terms of being somebody who knows how to prosecute. And in addition to his assessment that there wasn’t sufficient evidence, and again, we don’t know this from him directly, but this has been reported in “The New York Times” and “The Washington Post” and other papers.
He was like, there’s not enough evidence. So there’s a line, he was like, you have to write a pros memo, a prosecution memo that says what the law is and what the facts are that prove that up. And that’s an internal document that you create. And then you have to go to the grand jury, and then you have to stand up in court. And eventually if it goes to trial, you need to prove your case.
Mary McCord: Right. And so, the standard as you and I both well know, even before you go to the grand jury and seek an indictment, is that you have enough admissible evidence to prove every element of the crime that you’re looking to charge. And that’s got to be evidence that can withstand other evidence that might be contradictory and those kind of things. And those are judgment calls that prosecutors, especially the more experienced you get, they know what meets that bar and what doesn’t.
And you don’t look at going to the grand jury with, can I just meet the probable cause burden, because you know that if you get an indictment, you’ve got to go to trial and prove it up beyond a reasonable doubt. So you go to the grand jury saying, and you have to go saying, I already have the evidence to prove every element of the crime beyond a reasonable doubt.
Andrew Weissmann: And that’s one of the reasons when people say, oh, look, grand jurors will indict anyone. But the reason that grand jurors typically do indict is because prosecutors go in knowing that they have to go to trial and you have to be able to --
Mary McCord: That’s Right.
Andrew Weissmann: -- meet the evidence beyond a reasonable doubt. So you don’t go in half baked. Nothing good comes from that. Yes, you can continue investigating, but you have to know that you can meet the standard the moment that it’s indicted, because you don’t know if you’re going to get any more evidence after that.
Mary McCord: Yeah.
Andrew Weissmann: I just wanted to give one more piece that it’s a good background, which is that the reporting in “The New York Times” is that in addition to Mr. Siebert being appointed by Donald Trump and saying, I can’t do this, there isn’t enough here, that Pam Bondi and Todd Blanche fought for him. But this is where I have this small sliver.
Mary McCord: Yeah.
Andrew Weissmann: This small sliver is that we know who Donald Trump is, right. That is shown up one side and down the other. This week is a break glass moment. The thing we talked about in Antifa is just like exhibit A, it’s not even A --
Mary McCord: Yeah.
Andrew Weissmann: I mean, exhibit ZZ to many, many exhibits as to who he is. I think the thing that I found interesting is that it’s like what’s happening with enablers and accomplices and people who are complicit. And Todd Blanche, who I think rightly has taken a lot of criticism, including by me of what he did with Ghislaine Maxwell, and that’s just one example. Here, there’s a line for whatever reason, whether it was altruistic, whether it was cynical, whether they didn’t want to lose their bar ticket, they were trained as prosecutors, as professionals. They knew with that professional training that there has to be a good faith basis to do this. There have to be facts.
And I thought it was so interesting that the reporting was that you had sort of these three people, Mr. Siebert, Ms. Bondi and Mr. Blanche, all sort of saying no to this. And, obviously, it didn’t work.
Mary McCord: Right.
Andrew Weissmann: The president sort of still did it, but it’s so interesting to me, it’s a little like when Bill Barr said, you know what, I’m not going to go along with fraud in the election. So that’s, to me a little bit of a silver lining and I think it’s going to relate to when we talk about Disney and its reaction, which you got a lot of criticism for, and then it’s sort of pulling back on that when a matter of days.
Mary McCord: Yeah. I mean, some of that reporting from “The New York Times” did also say that Todd Blanche and Pam Bondi thought that he was good in a lot of other ways that furthered the president’s priorities, not in a corrupt kind of way, but just like immigration enforcement, those kind of things, are priority areas. So that could have also had something to do --
Andrew Weissmann: Absolutely.
Mary McCord: -- with them pushing for him as well as they do know their oath and certainly the U.S. Attorney who had been nominated knew his oath is to the Constitution, not to the president and that there is value in having some independence.
Andrew Weissmann: I just remember, all three of them are prosecutors, right?
Mary McCord: Yes.
Andrew Weissmann: They’re trained as prosecutors, in contrast to the woman who has now replaced the U.S. Attorney in the Eastern District of Virginia, who is not only not a prosecutor --
Mary McCord: Goose egg. Goose egg experience.
Andrew Weissmann: Yes. Zero experience in criminal law.
Mary McCord: That’s right. And here’s how this came to be. Well, here’s what I think the president is wanting to happen. The Truth Social post that was Saturday evening from Donald Trump just starts out, “Pam, I have reviewed over 30 statements in posts saying that essentially, quote, “same old story as last time.” All talk. No action. Nothing is being done. What about Comey? Adam? Shifty Schiff, Letitia, question mark, question mark, question mark. They’re all guilty as hell, but nothing is going to be done,” unquote.
So apparently, he’s suggesting he’s quoting 30 statements in posts. “Then we almost put in a Democrat supported U.S. Attorney in Virginia with a really bad Republican past. A woke RINO who was never going to do his job. That’s why two of the worst Dem senators pushed him so hard. He even lied to the media and said he quit and that we had no case. No, I fired him and there is a great case and many layers and legal pundits.” I think he meant lawyers, but it’s spelled layers. “Many layers and legal pundits say so. Lindsey,” and that’s Lindsey Halligan who’s now been put in that interim position, “Lindsey is a really good lawyer and likes you a lot. We can’t delay any longer. It’s killing our reputation and credibility. They impeached me twice and indicted me five times over nothing. Justice must be served now. President DJT.”
This post then was removed, but this looks pretty much to me like a direction to Pam Bondi. You work with Lindsey Halligan, and you get the job done, and I want to see these people charged.
Andrew Weissmann: Let’s assume that this goes forward. Let’s assume that a grand jury goes forward. Also, it’s not a foregone conclusion because think about what’s been happening in D.C. where grand juries have been saying no. This tweet is going to be exhibit A to all sorts of motions, including selective prosecution to the judge. It is also the kind of thing that the defense is going to fight like hell to get before the jury on all sorts of theories.
Mary McCord: He’ll move to dismiss on due process grounds.
Andrew Weissmann: And I’m going to be like a dog with a bone, because I say this over and over again, and I don’t want to be guilty of this, which is people cover Donald Trump’s adjectives and adverbs as if they are fact. In the tweet that you just said, there are a lot of descriptions and there is zero evidence.
Mary McCord: Evidence, that’s right.
Andrew Weissmann: Zero. And so we are talking about a fact based decision that needs to be made by the Department of Justice. Fact based with the backdrop of being whether it meets a legal standard. This is where, Mary, it’s like this is what we do for a living. We did it as prosecutors, you do it as defense lawyers. In that tweet, there is a complete dearth of evidence. It reminds me of, there was fraud in the election. Where’s the evidence? The president said, oh, I’ve got irrefutable evidence. I’m going to have a press conference and I’m going to tell you all about it. And then he doesn’t. Saying that somebody is guilty is not going to carry the day before the grand jury or a jury.
Mary McCord: In fact, you can’t say he’s guilty before a grand jury or a jury.
Andrew Weissmann: Right, exactly.
Mary McCord: A judge would say no to that in a split second. Now there’s no judge in the grand jury room, but every prosecutor knows that that’s not proper, and certainly in a trial that would never be permitted.
Andrew Weissmann: Right. And the law is the prosecutor’s opinion is not evidence. And not only is it not evidence, it cannot be expressed. You can’t tell a jury this is what I believe. That’s not evidence.
Mary McCord: You can say, we’d ask the jury to consider the evidence and we think once you’ve considered it all, you will come back with a verdict of guilty, but that’s very different thing than the president thinks they’re guilty.
Andrew Weissmann: A typical way of phrasing it is that here’s all the evidence we proved and here’s all the arguments we’ve made. And based on that, the only verdict consistent with all of that evidence, et cetera. But you don’t sit there and say, I want you to believe this because I believe it. That is something that is reversible error --
Mary McCord: Yes.
Andrew Weissmann: -- if you put your opinion into the case. But that all goes to this idea that it’s just an absence of fact. And one thing to note, and I haven’t done the timeline and obviously we don’t know the internal workings of the Department of Justice, but again, there is reporting including in “The New York Times” about a statute of limitations coming up. You generally have to bring a charge within a certain amount of time, or it becomes time barred. And there’s some concern apparently within the Department of Justice, that some of these charges may become time barred.
Mary McCord: Particularly I think with respect to James Comey. I think there are various offices apparently investigating him based on the reporting in “New York Times” and “Washington Post,” but there are some that have to do with testimony, I think, from September of 2020, which we are just about at the five year mark.
Andrew Weissmann: Exactly. So this idea that we have to do it now, which you’re hearing the president say that you can sort of put two and two together, that he is aware of that. I do want to raise one piece of quote Brady information, which is that the president in his tweeting did make this reference to whatever the facts are. If they’re guilty, they’re guilty. If they’re not guilty, they’re not guilty. But then he says, but you need to act now. And to me, that sort of like throwing in the little disclaimer is so much like the ellipse speech on January 6th, which was, I’m going to paraphrase. We have to fight like hell if we’re going to have a democracy, of course, you should go peacefully.
Mary McCord: Right.
Andrew Weissmann: Right.
Mary McCord: And that part wasn’t in the message to Bondi that came later, right?
Andrew Weissmann: Yeah, exactly. And so this idea where he throws in the, what I call and usually you’d think of it as plausible deniability. I call it implausible deniability. To me, that sort of throwing that in shows he knows the line. He knows that how bad it is if he just says do this, regardless of whether they’re guilty or not, because they indicted me.
Mary McCord: Yeah, that’s right. And we should probably note that part of this is coming from the investigation into Letitia James, at least based again on public reporting, is that this is another one of the suggestions by the director of the Federal Housing Finance Agency who has been searching around looking for any kind of statements he can find on mortgage applications to then urge the Department of Justice to indict people for mortgage fraud. That’s what this Letitia James investigation is about. That’s certainly what the Lisa Cook investigation is about. And that seems to be sort of like, this reminds me of various times when one particular thing gets used to take down people. Decades ago, it was whether you’d paid your nanny tax, right. It took down a lot of nominees, not so much criminal investigations, but took down nominees.
Andrew Weissmann: Right.
Mary McCord: And here we’re this role of the director of the Federal Housing Finance Agency is pretty remarkable in what impact that is having, at least with President Trump.
Andrew Weissmann: Yeah, absolutely. It’s one that keeps a biting people in the --
Mary McCord: It does.
Andrew Weissmann: -- derriere, because it turns out if you try to come up with a ruse, it turns out many people could have that same problem. And so this is one where we don’t know all of the facts that DOJ has, and we know the attorney didn’t think there is enough and we also know that there’s a singling out of people because when you start hearing reports that some Republicans of quite notable positions have a similar facial issue --
Mary McCord: That’s right.
Andrew Weissmann: -- then you sit there and go, well, X and not Y. This is just so antithetical to the rule of law. It is literally antithetical to the rule of law, which is that you don’t sit there and go, like we’re going to only prosecute because they’re Democrats and not prosecute the Republicans, which by the way, is the perfect segue --
Mary McCord: It is.
Andrew Weissmann: -- to attacking enemies. Shall we take a break and come back to that?
Mary McCord: We will. Let’s do.
(MUSIC PKAYING)
(ADVERTISEMENT)
(MUSIC PLAYING)
Andrew Weissmann: So Mary, everyone now knows and at the time that this podcast drops, people will be on (inaudible) to hear later that night about Jimmy Kimmel. Obviously, everyone knows what happened to him, and then everyone knows about the reversal or change. He was pulled indefinitely, and it turns out indefinitely means four days. And we don’t know why Disney changed it. They could have really had a change of heart. They could have, as they said, just think that the timing was not right. I do actually maybe want to say one thing on that. And this may be sort of me being like a fuss budget or I don’t know what the right term is, but there is a time and place for things and --
Mary McCord: Agree.
Andrew Weissmann: -- by the way, this isn’t meant as a criticism. I think there’s a different rule when you’re coming to comics.
Mary McCord: That’s right.
Andrew Weissmann: But I was asked about Kash Patel basically the evening of, or the day after Mr. Kirk was assassinated or murdered. And I tried to say, look, there’s a time and place to do an after action and it needs to be done. This isn’t it. Let’s talk about sort of what the FBI needs to be doing now, what it could be doing and hopefully, is doing. And so maybe that was Disney’s reasoning. Maybe Disney cynically was just concerned about public reaction and Kimmel suing and winning and all of this being aired.
I do think it’s one thing to note is if you put this in context of what we saw with Mr. Seibert, Ms. Bondi and Mr. Blanche, and you do have some people, these are people who are enabling Donald Trump. You are seeing as bad as what Donald Trump has done this week, you don’t see it from a lot of Republicans in the House and in the Senate. You are seeing some signs of a bridge too far.
Mary McCord: Yes. I mean, the head of the FCC, the FCC chairperson had actually suggested we can do this the easy way or the hard way. Then he got pretty explicit about that, which raises all kinds of First Amendment concerns. We’re talking about the government, which does have to comply with the First Amendment, discriminating based on viewpoint.
Andrew Weissmann: We talked about the Murphy case from the Biden administration, which was a case that went up to the Supreme Court. Amy Coney Barrett wrote the majority decision. And that was a case where a bunch of right wing people had sued the Biden administration saying that you should not be pressuring media companies --
Mary McCord: Yes.
Andrew Weissmann: -- to say certain things or not say certain things. One of them was that they wanted media companies to not transmit false information about vaccines. And what was missing and what Amy Coney Barrett said was missing there was if you do that, we will take this retaliatory action. It was like, we don’t want you to do it, but they didn’t say, if you’re going to do that, we’re going to prosecute you. We’re going to take adverse action. We’re going to pull your license.
Mary McCord: Okay.
Andrew Weissmann: This goes to why, Mary, it’s like so teed up. But everyone agreed. If they had done that, it would’ve violated the law.
Mary McCord: Hundred percent.
Andrew Weissmann: And so to me, this is like, now the shoe’s on the other foot. And what you heard that sort of like, we could do this the easy way or the hard way, is Murphy.
Mary McCord: Yes.
Andrew Weissmann: I was like, and law violation. And all of those conservative Supreme Court jurist. Justice Alito, I am talking to you. Justice Thomas, I am talking to you. Justice Gorsuch, I am talking to you, who were vociferous saying this crossed the line. In the Murphy case, no, no, no. We think the record was sufficient. We think it crossed the line. Well, what are you going to do with this? Because this, what happened this week makes that look like child’s play.
Mary McCord: It’s almost like mic drop, right? I’m like, I don’t even have a good response to that because it’s just so bright. And we’re seeing this, and we even saw Ted Cruz coming out, suggesting this has some First Amendment problems associated with it. To your point, and maybe this is another sliver of hope, is there are people who are starting to realize some of these things just go too far.
I think ABC may still have issues with some of its affiliate stations, making different decisions, but they at least have, I guess, decided that they are going to take their chances with the FCC and what the FCC might do.
Andrew Weissmann: The other thing I just want to point out for listeners, because the number one question I get and, Mary, you may get the exact same question, is sort of what can I do? What can I do? For people who think that this is outrageous and this never should have happened and this is a violation of core First Amendment rights. And by the way, this is the kind of thing that should unite the left and right. There will be stations, as Mary said, that are not going to air the Jimmy Kimmel show and make this sort of a political football. And so that if you are in that area and you sort of disagree with Sinclair or Nexstar, and you disagree with what your local station is doing, speak up. You have more power than you think. People want to know your voice. And I’ve said this, even for people who say, look, I’m from a deep blue state, what can I do? People want to know, even your sort of quote, “blue representatives,” want to know what are you thinking about and how much do you care about an issue? So if this is something you care about, send e-mails, write, call, do things like that if this is something that really you think is outrageous.
Mary McCord: And I think there was a lot of pressure put on Disney, ABC that I think probably had something to do with the bit of the about face here. But moving on to other attempts to cow the media, we have to mention the $15 billion, that’s B as in Bob or baseball, not M as in Mary. That is a B, billion, $15 billion lawsuit that Trump filed against “The New York Times” because he didn’t like the various reporting that they had engaged in and that a couple of their reporters had written books about with respect to his time running as a candidate. And I have never seen a judge on his own, federal judge who got this case, four days later dismissed this case without prejudice, he could rebring it, under federal rule of civil procedure 8(a). This is a rule that says a complaint must include a short and plain statement of the claim showing that the pleader is entitled to relief. Each averment of the pleading shall be simple, concise, and direct.
Now I know that a lot of very good complaints are very lengthy because they establish the facts and the history that leads up to the causes of actions. In fact, my organization, ICAP, we oftentimes will have complaints that are fairly lengthy because you’re trying to set up all the factual averments, that means assertions, that support those causes of action. Here, however, according to this judge in a four page ruling, well, I just want to read a few snippets because I just can’t paraphrase.
Andrew Weissmann: It’s so good.
Mary McCord: He says even under the most generous and lenient application of Rule 8, the complaint is decidedly improper and impermissible. The pleader initially alleges an electoral victory by President Trump, quote, “in historic fashion,” unquote, by quote, “trouncing (ph) the opponent” and alludes to, quote, “persistent election interference” from the legacy media led most notoriously by “The New York Times.” He’s including all the snippets of quotes from the 85 page complaint.
The pleader alludes to, quote, “the Halcyon days,” unquote, of the newspaper, but complains that the newspaper has become a, quote, “full throated mouthpiece of the Democrat party,” unquote, which allegedly resulted in, quote, “deranged endorsement,” unquote, of President Trump’s principal opponent in the most recent presidential election. The reader of the complaint must labor through allegations, such as, quote, “a new journalistic low for the hopelessly compromised and tarnished gray lady,” unquote. The reader must endure an allegation of the, quote, “desperate need to defame with a partisan spear rather than report with an authentic looking glass,” unquote, and an allegation that, quote, “the false narrative about The Apprentice was just the tip of the defendant’s melting iceberg of falsehoods.”
And I could go on and on and on. And what the judge is saying is these are not short and plain averments of facts. You have to wade through 85 pages till you finally get to what the two causes of that action are. He says, although lawyers receive a modicum of expressive latitude in pleading the claim of a client, the complaint in this action extends far beyond the outer bound of that latitude.
Andrew Weissmann: So this is a judicial way of saying just the facts, what happened? Cut the shtick.
Mary McCord: Yes.
Andrew Weissmann: And just tell me what happened. And so with “The New York Times,”the issue is what are the actual facts that would support this sort of malice that’s required to prove defamation that they got something wrong and they did so intentionally or with reckless disregard of the truth. To me, that’s what the judge is really reacting to. And by the way, I think this judge was appointed by, and again, we say this because this is sort of a constant refrain on the right, but this is a judge who was appointed by a Republican president.
It really goes to a theme, Mary, you and I keep on saying, which is so much of this should not be a partisan issue.
Mary McCord: Yeah.
Andrew Weissmann: We worked at the department under all sorts of administration, but with all sorts of colleagues who I never had any idea what their politics were, nor did I give a damn what their politics were and it didn’t make any difference in terms of what we were doing.
Mary McCord: Yeah.
Andrew Weissmann: It was like, do you have the facts? What’s the law? And as a matter of discretion, is this the right thing to do?
Mary McCord: Yeah. And that’s why judges are coming at this across the political spectrum in terms of who appointed them. Okay, should we talk about the Antifa designation?
Andrew Weissmann: Yes. So, Mary, let me give you a softball and this is actually quite a serious topic, but let’s start this way. Is there such a thing as designating a domestic philosophy, let’s even assume Antifa is an organization. Let’s just take that as a given, but does that exist? Is it a thing --
Mary McCord: Yeah.
Andrew Weissmann: -- to say about a domestic group, not a foreign organization, that they are a domestic terrorist organization and that carries some legal significance. Is that a thing and has it ever been done?
Mary McCord: So the answer is no. It is not a thing --
Andrew Weissmann: I told you --
Mary McCord: -- that has a legal significance.
Andrew Weissmann: -- softball.
Mary McCord: That’s right. So, he can say whatever he wants in executive order, and he’s been saying all kinds of things in executive orders since January 20th at 12:01 in the afternoon. And that does not mean it’s going to have legal significance. And just to put this in some legal context, Congress passed a statute, a law that allows for the designation of foreign terrorist organizations. And then they passed a law that said, there’s a criminal offense if someone provides material support to a designated foreign terrorist organization. In other words --
Andrew Weissmann: Such as money.
Mary McCord: -- an organization. Such as money, such as yourself --
Andrew Weissmann: Yeah.
Mary McCord: -- as a fighter or a terrorist.
Andrew Weissmann: Yeah.
Mary McCord: Such as other tangible goods.
Andrew Weissmann: Things, goods. Right, right.
Mary McCord: That’s right. Resources, et cetera, services also as well. And so this is a statutory scheme set up by Congress. If there’s a designated foreign terrorist organization under the criteria, we establish Congress by statute, then that can trigger this material support. There is no statutory scheme or authorization or regime for designating a domestic terrorist organization. And even if the president says, well, I’ve done it anyway through my power under Article II as the president, that doesn’t trigger the material support to a foreign terrorist organization criminal offense.
Andrew Weissmann: And let me ask you another softball. What is the reason that Congress would do this, would be focusing on foreign organizations and not the domestic, because I think that is so telling and so important to what is going on now? What was animating Congress in saying we’re going to do this when we’re looking outside not in as the Keith (ph) Supreme Court case strongly suggest --
Mary McCord: And Holder. And holder the humanitarian law project.
Andrew Weissmann: Yeah, exactly.
Mary McCord: So, you know, there’s a factual issue because there have been a lot of Islamist extremist terrorist organizations that really do have an organizational structure that there’s a designated leader of and that have committed atrocious terrorist attacks like 9/11, right, that was committed by Al-Qaeda.
Andrew Weissmann: Absolutely.
Mary McCord: There was a known leader. Everyone knew the leader of Al-Qaeda. More recently, we’ve had ISIS back in 2014, 2015, 2016, and of course they do still exist with a known leader and people who would try to commit --
Andrew Weissmann: Right.
Mary McCord: -- terrorist acts on their behalf, would oftentimes they would come in and take credit. So there’s that factual piece. But the concern with designating a domestic organization as a terrorist organization is a First Amendment based concern. Right? We have free speech here and organizations usually, you know, even Al-Qaeda and ISIS, right, they had speech and ideology that they wanted to convey, but they did so in part, through engaging in acts of terrorism.
But because those are foreign organizations, foreign organizations don’t have First Amendment rights. And that is a critical difference here. Now it does not mean that if you had a domestic organization that engaged in acts of terrorism, that those would be legal. Absolutely not. Those acts would not be. But to designate an organization as a terrorist organization and try to hook some sort of criminal liability to that simply for supporting that organization could run afoul, not only of the free speech, that the ability of the organization to promote its ideology, whatever that ideology might be, but also the freedom to associate with others --
Andrew Weissmann: Freedom to assemble.
Mary McCord: Exactly. That’s part of the First Amendment, to associate and assemble with others of the same like mindedness, and to petition the government for redress of grievances. If you want to go on behalf of that organization and make arguments about what the policy of the United States should be. And so I sometimes describe it thusly, to designate a domestic organization in a way that wouldn’t run afoul of the First Amendment would probably require that organization to say we have one mission and one mission only, and that is to commit acts of terrorism and violence intended to intimidate or coerce the civilian population or influence the policy of government through intimidation or coercion. That is all we do. Maybe then --
Andrew Weissmann: Yeah.
Mary McCord: -- it would not run afoul of the First Amendment, but these are serious First Amendment related issues and this is all also assuming there’s an organization. And if you read --
Andrew Weissmann: I know. I know.
Mary McCord: -- the executive border section one, Antifa is a militarists anarchist enterprise that explicitly calls for the overthrow of the United States government, law enforcement authorities and our system of law. It goes on and on and on. I’m like, wow, where is that? Who’s the leader of that Antifa, and have they taken credit for anything terrorist activity? Like what are we talking about here?
Andrew Weissmann: Right. And I had two thoughts. One on the Supreme Court said that the concern they have about sort of national security measures, the sort of designating domestic groups, is that the existing government will use that to target political adversaries.
Mary McCord: That’s right.
Andrew Weissmann: That was explicitly called out by the Supreme Court. Not this Supreme Court. Wait to see whether the Supreme Court adheres to that. But in the Keith case, as you said, in the Holder case, that is the concern. The second is I was looking at that executive order and it was really hard not to read that and think, not all of it to be fair, but much of it applies to the Oath Keepers and Proud Boys on January 6th. I was sitting there going like, let’s see, they want to stop the system of government by use of violence. By the way, I am not in any way saying there should be a designated domestic terrorist organization. It’s just, this is one where I can hear Nicolle Wallace’s voice in my head going, Andrew, irony and hypocrisy are dead.
Mary McCord: Yeah, I know.
Andrew Weissmann: But you read that and you went, are you kidding me? This is part of the white washing of January 6th --
Mary McCord: That’s right.
Andrew Weissmann: -- is that you read that and you think when’s the last time there was a group that engaged in armed violence to thwart a democratic peaceful transfer of power? And this is an executive order about Antifa?
Mary McCord: Right.
Andrew Weissmann: I was like, wait a second. I need some scissors and some glue because I can put someone else there. No, just to be fair. There are pieces in the executive order that certainly do not apply to them, but it was --
Mary McCord: You’re right.
Andrew Weissmann: -- it was remarkable that it took, what, we in New York call hutzpah.
Mary McCord: Yes.
Andrew Weissmann: -- to write this.
Mary McCord: A hundred percent does. Okay. Shall we take another break and then come back and talk about the flip side of this story and where we’re apparently not investigating.
Andrew Weissmann: So far. We’ve talked about where people who are experienced prosecutors say, no, there’s not enough evidence. We can’t go forward. Now we’re going to talk after the break about no, no, no, we don’t want to investigate even where there is like, let’s just say a ton of smoke. We don’t even want to investigate when the smoke consists of a bag of cash --
Mary McCord: That’s right.
Andrew Weissmann: -- with $50,000 in it, which I think most people who are listening to this go like Mary, Andrew, stop getting so fancy. Doesn’t that consist of bribery? Well, you know what? This is where we’ll come back and we’ll talk about the law on that because it’s actually a little complicated.
Mary McCord: It is complicated.
Andrew Weissmann: But the big picture is just like, okay, wait a second. We’re not going to investigate this, but we do want to actually charge cases where there’s no evidence as far as we know.
Mary McCord: Yeah. But hypocrisy is dead. Okay. We’ll come back after the break.
(MUSIC PLAYING)
(ADVERTISEMENT)
(MUSIC PLAYING)
Mary McCord: Well, welcome back. As Andrew teed up, now we’re going to talk about what apparently the government is not investigating, notwithstanding that there does appear to be evidence in some really great reporting that we mentioned at the top of this episode. Carol Leonnig and Ken Dalanian at MSNBC, put out a story where their investigation had revealed that in September of 2024, so a year ago, with hidden cameras rolling, recorded a scene where Tom Homan, who is our borders czar now, accepted $50,000 in cash according to an internal summary of the investigation that these reporters had gotten access to.
And the investigation had started as an investigation into someone else who then claimed that Tom Homan was soliciting bribes. And he, at the time, this is before of course Trump had even won the election. So it’s certainly before he was ever a public official or the border czar. In fact, at that time he was president and owner of a private consulting business that said it could help companies in border security to win government contracts.
And so the point of this payment was to secure that help once Tom Homan got this public job that he anticipated, that he would get, if President Trump won. This was a down payment to help facilitate these government contracts. So what does that mean legally? And what we know I should say before we talk about what that means legally, is that apparently, this investigation has now been ended, squashed, and the public statements coming from the White House and elsewhere are that this was something that was initiated under a weaponized by an administration and that Tom Homan never accepted any cash and he hasn’t been involved in any contract decisions, nothing to see here, we’re done.
Andrew Weissmann: Right. So basically the defense from the White House was that this is a matter of selective prosecution, but see Mary’s point that the reporting is that this was actually an investigation to someone else, but the person kept on saying, according to Ms. Leonnig and Mr. Dalanian, that Mr. Homan was open for business, that’s sort of my words.
Mary McCord: Yes.
Andrew Weissmann: And so it’s not who they were targeting. Two, was that there’s now a factual dispute about whether he took the $50,000, which is in the reporting versus the White House says, no, he did not. But see, there’s a tape recording. So add this to the list of things.
Mary McCord: Show the evidence.
Andrew Weissmann: It’s like, if you want to show that data didn’t happen, the FBI knows the answer to this. So they could just turn that over any day of the week. So legally, federally, there is no simple bribery statute. There’s just not a statute under federal law that says it’s a crime to commit bribery in and of itself. There are certain requirements that need to be met to have federal bribery. Now I keep on saying federal because state law has bribery laws. So this could violate some state law.
But for it to be a federal crime, the typical federal crime is somebody is already a federal officer --
Mary McCord: A public official, the statute says.
Andrew Weissmann: Yeah. And so you’re like in government and either someone offers you a bribe or you solicit a bribe to take certain action and the money has to be for that action. So it’s, what’s typically known as in the law, a quid pro quo. I did X because you gave me money.
Mary McCord: Or I will do X because you’re going to give me the money.
Andrew Weissmann: Yes, exactly. But that’s the tie. It is also a crime under the statute if you’re already selected to be that official. And so that could be an open issue here about whether he was selected under the law, but we don’t really have to get into all of those niceties because I look at this in the following way, which is --
Mary McCord: Yeah.
Andrew Weissmann: -- because we did investigations for so many years. You would never kill an investigation at this stage where somebody is clearly about to be selected if they are not selected already. And they are, according to the reporting --
Mary McCord: Yes.
Andrew Weissmann: -- taking a bag of cash, $50,000 in a paper bag, which by the way is not how you take legitimate money. If this was legitimate, guess what? You can wire it.
Mary McCord: Zelle.
Andrew Weissmann: You’ve never heard of Venmo. Right. Exactly.
Mary McCord: Don’t you always carry $50,000 around in a paper bag?
Andrew Weissmann: Well, you know what, when I go to Cava for dinner, I always think that bag --
Mary McCord: For carrying cash.
Andrew Weissmann: -- could be really useful for carrying --
Mary McCord: Yeah.
Andrew Weissmann: -- the $50,000 in cash because I left my wallet at home. And so this paper bag is looking mighty, mighty useful.
Mary McCord: It is.
Andrew Weissmann: So, I mean, it’s just so ridiculously suspicious. And that to me is whether you needed to wait until he was quote selected or not. You just clearly have an investigation that is live. The idea that you would kill it just falls into the category of, for your friends everything, for your enemies, nothing.
And so this is the idea of we’re going to pardon Roger Stone and Paul Manafort and everyone in January 6th. And we’re not going to do an investigation of Mr. Homan. And I have to say he was on Fox News, and I listened closely twice to that statement.
Mary McCord: Yeah.
Andrew Weissmann: I was listening with a sort of defense lawyer and prosecutor hat on. I was waiting for this sort of clean denial.
Mary McCord: Yeah.
Andrew Weissmann: And I just didn’t hear even what the White House said, which was, I didn’t hear the sort of, I did not take the bag of cash, because he knows what happened as the FBI does. And so I just think for all of those people who were upset about Epstein and sort of the cover up here, you’ve got a guy here who’s deporting people and getting reversed by courts saying there is insufficient evidence to deport this person because what you say about whether this person is deportable is not proved with sufficient evidence.
And yet, as to himself, the government is sitting on a tape recording, which let’s just give them benefit of the doubt. If it shows that nothing happened here, turn it over and we’ll all see it and you would think he would want that, right? If I was falsely accused and there was a tape recording of it, the very first thing I would say is put it out there. I want them to see it. And so the idea that he wasn’t saying that, and it wasn’t sort of what I’d call a clean denial --
Mary McCord: Yeah, a hundred percent.
Andrew Weissmann: -- to me was quite the tell.
Mary McCord: I’ll say one of the things so just so people know when we talk about that’s not the time you would squash it, this question about should there have been charges brought then or not. If you’ve got somebody who is not yet a public official and will only become one, if a certain candidate wins the election later, it would be completely part of that ordinary course to say, okay, we’re going to continue this investigation, see whether he does become a public official and then go back at it and see if he takes more money, right?
Andrew Weissmann: Right. And also see if he carries it out.
Mary McCord: If he does the quo part of the quid pro quo. So, in terms of just investigatory practice, that would be the normal approach.
Andrew Weissmann: I wanted to bring something up to end the podcast. We talked about this and you told this story last week, your experience in the Guatemala case and the factual flip flop that happened in the case before Judge Kelly. Judge Kelly issued a decision. And what did he say? I know you have some choice quotes from him because remember we were sort of jaw hit the ground, and it wasn’t clear what the judge was taking in or not. And I should have held my fire on that, because what did the judge do?
Mary McCord: To put the bottom line up front, he issued a preliminary injunction, barring the government from expelling, summarily removing unaccompanied minor children from Guatemala who are in the custody of the U.S. unless they have an actual deportation order or a voluntarily removal that is consistent with the legal requirements for that. So no spiriting children away in the dark of night on a holiday weekend. But the stuff that’s remarkable about this and I just have to read the second paragraph of the opinion and this is how it starts.
The first paragraph talks about how just before midnight on the Saturday of Labor Day weekend, that’s when executive branch agencies reached out to shelters where these children were held and said, get them ready, we’re coming with buses to pick them up. And then they were in fact picked up and bused to the airport in the middle of the night and some were loaded on planes. And this is what he says. Lawyers got wind of this hasty operation while it was unfolding and filed this lawsuit seeking emergency relief that Sunday at 1:00 a.m. The judge on emergency duty entered a temporary restraining order, barring the agencies and their officials from removing or otherwise transporting the children from the United States. At a hearing later that day, counsel for defendants explained why it was, quote, “fairly outrageous,” unquote, for the plaintiffs to have sued. All defendants wanted to do was reunify children with parents who had requested their return.
Andrew Weissmann: So that’s the United States saying. The United States --
Mary McCord: That’s right.
Andrew Weissmann: -- said, how could you have sued? It’s outrageous because all we, the United States, the Trump administration, was doing was unifying, reuniting those children with their family members because that’s what the family had asked for. And remember, that’s the position. That’s our United States is saying this --
Mary McCord: That’s right.
Andrew Weissmann: -- in court that we are extracting these children, but you are wrong to complain, and how dare you complain because all we’re doing is honoring the wishes of the parents.
Mary McCord: That’s right. So, Judge Kelly continues, but that explanation crumbled like a house of cards about a week later. There is no evidence before the court that the parents of these children sought their return. To the contrary, the Guatemalan attorney general reports that officials could not even track down parents for most of the children whom defendants found eligible for their reunification plan. And he puts reunification in quotes. And none of those that were located had asked for their children to come back to Guatemala.
So look, this is a judge who’d looked at the facts in front of him and said, what is in front of me does not match up what you, the government said that weekend, when you tried to remove children in the dark of night. He then goes on to find that what the government did was not lawful because the Trafficking Victims Prevention Reauthorization Act, the TVPRA, that provides a specific legal procedure for handling the cases of unaccompanied minors. And that is to protect them against abuse and neglect and trafficking, sex trafficking, human trafficking, et cetera. That’s the reason for this.
And a couple of other points I’ll make. That Guatemalan internal report was obviously significant here to Judge Kelly. I will say also as Judge Kelly weighed whether there would be harm to the children if they were sent back because the government actually argued, your honor, if it turns out at the end of this case, that the plaintiffs are right about the law, you can just bring them back. And he’s like --
Andrew Weissmann: Hutzpah. Hutzpah.
Mary McCord: Yeah, I’m dubious about that.
Andrew Weissmann: Gee, could we think of a case where they didn’t bring them back?
Mary McCord: Yes we can. And these are children don’t forget.
Andrew Weissmann: Yeah.
Mary McCord: And so when he’s looking at that harm, and the other thing the government said is we have these criteria. We have these criteria that were applied to decide which children could be sent back to Guatemala, and that meant any children who actually had in their history a risk of abuse or being trafficked. They were not on the list. Well guess what? A couple of whistleblowers last week, right before the judge ruled, sent in a report to Congress, whistle blowers with access to the database of these children and said, that is not true. At least 30 of those children, there are indications in their records that they would be subject to abuse or trafficking or other harms if they were sent back.
And that is another thing that the judge cited. He’s like we have whistleblowers who are saying, you’re not even following your own criteria. And I think importantly, there were issues that arose when representing along with our colleagues at the National Immigration Law Center and the National Center for Youth Law. When we went to the court for that preliminary in junction, we did ask the court to expand it beyond just Guatemala and children, because we were worried and the government did not disavow this, that the government was going to use this same, quote, unquote, “reunification plan” to try to deport summarily children from other countries, including Honduras and El Salvador.
And the judge did find that he did not have enough evidence that that was imminent at this point in time to issue a preliminary injunction as to those children from other countries. But here’s what the judge said. First, he says, of course the court does not foreclose expanding the class later if developments warrant that adjustment. Defendants should not construe this decision as an invitation to take similar action with respect to these other unaccompanied alien children. For the same reasons explained below, any such attempt to expel them is likely to be unlawful.
Andrew Weissmann: So facts matter when you’re in court. They seem to not matter when you’re at the White House. And what I would say is we’re seeing some sign that at the Department of Justice, you know what we keep on saying, is there a bottom? Is there no bottom? And we’ve seen sort of no bottom in many ways coming out of the White House, but we have seen a floor in certain ways from Disney, from Pam Bondi, from Mr. Seibert, from Mr. Blanche.
Mary McCord: And certainly, from the judges who are now taking this.
Andrew Weissmann: Well, of course.
Mary McCord: Yes.
Andrew Weissmann: Of course that’s absolutely --
Mary McCord: They are our heroes right now.
Andrew Weissmann: And so, it is a very mixed bag of news this week. Thank you so much. It’s a lot.
Mary McCord: Yes. It’s a lot.
Andrew Weissmann: It’s a lot. Thank, God, I get to do it with you. So, thanks everybody for listening. And 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 and Aisha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcast and follow the series.