After a Labor Day weekend that saw a judge halt the Trump administration’s attempt to deport dozens of Guatemalan children already loaded onto airplanes, Andrew and Mary had planned to start their conversation there. But just this morning, Judge Charles Breyer ruled the administration cannot deploy U.S. military to carry out law enforcement operations, as this violates the Posse Comitatus Act. Andrew and Mary provide historical context for the act and walk us through the rationale of this latest ruling. Then, they take a beat on moves to oust two more Trump appointed U.S. Attorneys in California and Nevada who have yet to be congressionally approved. And last up, they review several big cases, including tariffs, Lisa Cook, and cuts to foreign aid.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hi, welcome back to "Main Justice." It is the day after Labor Day. It means it's Tuesday morning, September 2nd. And that person who's very polite. I laugh at what I'm saying is Mary McCord.
Mary McCord: Yeah, we're having a morning.
Andrew Weissmann: So I had two thoughts for this Tuesday right after Labor Day that I think are going to really fit in with the breaking news and the things that we are going to talk about today. One is that today is the start of a criminal trial for a leader who lost an election and then was indicted for essentially insurrection for trying to engage in a coup to take over the country's presidential role that he lost, but he claimed he won with no proof.
And that trial is happening in Brazil with Mr. Bolsonaro, he stands accused. Obviously the government has to prove its case of engaging in that insurrection. And notably and that is why our precedent has directly out loud, it's not hidden, says that he is imposing sanctions on Brazil. And in particular on the judge who had been overseeing this civil case as well because he had Mr. Bolsonaro also been disqualified for running.
And the second was I'm here in New York and I almost every year go to the U.S. Open. It's a huge international event. And there are people from around the world attending and playing. And what's notable in the doubles is it's not like, oh, that's the American team. You'll have an American and a Brazilian. You'll have someone from Croatia and from Belarus. You'll have just a variety of people and a few people who love sports and think about sports and the fact that you can come from all these different places and compete and be valued, and it was nationalism in the best way.
Mary McCord: Yeah.
Andrew Weissmann: Not in a sort of exclusionary way. And it just was such a reminder of where we could be and where a part of us still are and what we're seeing from our government.
Mary McCord: It's like the Olympics, right? Like sport does seem right now to be one place where all of that diversity of where people come from and race and gender and ethnicity is accepted and appreciated and valued, like you said.
Andrew Weissmann: Yeah. And obviously, just to be clear, I am not saying that sports do not have those issues. I mean, the attack on the trans community --
Mary McCord: Sure. Yes.
Andrew Weissmann: -- and how they participate is obviously a huge, huge issue.
Mary McCord: Yes, yes.
Andrew Weissmann: But Mary, with that sort of, as a framing, I know there's so much because something broke moments before we came on air.
Mary McCord: Well, I'll tell you, top line, given your opening about the trial in Brazil, we are in fact, not prosecuting anyone in the United States for doing such a thing like that. And indeed, I think in many ways, the opposite in light of the immunity decision, what we are seeing is expansive efforts to use executive authority and sometimes to the breaking point. And I think that is reflected in the decision this morning from Judge Breyer, a district court judge in California, who, as everyone who listens knows, has been handling the case brought by the state of California and Governor Newsom challenging, first of all, the federalization of the California National Guard and its deployment in Los Angeles to protect federal functions, to protect ICE, and also the deployment of Marines.
So the Marines have now been withdrawn, but at least 300 members of the National Guard still remain working with ICE. And as everyone knows, initially, Judge Breyer had enjoined those deployments as being not proper under Title X, Section 12406, the statute that the president invoked. The Ninth Circuit stayed that injunction, but the Ninth Circuit didn't rule on whether the Posse Comitatus Act applied and that is the issue that went to trial. Was it two weeks ago? And that involved two questions. Legally, does the Posse Comitatus Act, which is a criminal statute that bars active duty military and federalized National Guard from engaging in domestic law enforcement.
Does that apply to this deployment or was the statute Section 12406, an exception to Posse Comitatus Act, or does the president have his own inherent constitutional authority that is an exception to the Posse Comitatus Act? Those were the legal questions at issue. And then secondly, if Posse Comitatus Act applies, have the federalized National Guard members and the Marines violated Posse Comitatus Act?
Andrew Weissmann: And that's the factual issue. In other words, what were they actually doing?
Mary McCord: That's right.
Andrew Weissmann: If they are subject to a law that says that you cannot use the military domestically to engage in law enforcement, what were they doing? And is it part of, quote, "law enforcement" or were they doing something else? There's sort of a factual component and a legal component. So we're going to turn first to that and then talk about a variety of immigration related decisions that we were originally going to talk about, but we'll frame it with that.
Mary McCord: Oh, that's right. I just dived right into the actual substance without the roadmap. That's how anxious I was to get to this. We're going to talk a little bit --
Andrew Weissmann: That's alright.
Mary McCord: -- and probably briefly about the efforts to really revise history around January 6th, through some of the things that have been happening, including attorneys for our January 6th defendants trying to make a proposal and talking to the Justice Department about it to provide a 9/11 type compensation fund. There, it was for victims of 9/11. Here, it would be for defendants from January 6th.
Andrew Weissmann: This is the fund for the perpetrators, not the victims. Great idea. That's a great idea. Tells you exactly the contrast between us and Brazil.
Mary McCord: Exactly. And then finally, major, major cases, almost certainly headed to the Supreme Court involving the tariff decision just issued over the last week involving the lawsuit brought by Fed board of governors, Governor Lisa Cook, challenging Trump's effort to remove her from her position. And also a little bit of, I think, some sort of clever decision making on the part of the D.C. Circuit in the foreign aid case that we've talked about that perhaps for right now avoids immediate Supreme Court review on the emergency docket, but ultimately that's the case that we'll probably get there too. So should we go back to Judge Breyer's opinion?
Andrew Weissmann: So I think you've set it up pretty well where judge Breyer had this trial, a factual trial, he heard from witnesses. We briefly have discussed that component of it. We certainly discussed various legal aspects. And so everyone was waiting for the judge to issue his legal and factual findings. This was not tried to a jury. It was tried to the judge. And so the judge deliberated, and then just this morning issued a very, very lengthy decision. And I think this might be a really good pippy way of getting to the sort of top line ruling is, but then we'll unpack it.
Here's the quote, "In short, defendants violated the Posse Comitatus Act, period." That is on page one. And so he finds that violation and he issues a type of injunction because he sees a risk of repetition here that this is something that would happen based on the evidence that was presented to him.
Mary McCord: And the fact that there are still 300 National Guard members in L.A.
Andrew Weissmann: Yeah, right, who were given instructions handed down by Pete Hegseth, the Secretary of Defense, and those instructions were something that he said go beyond what the Posse Comitatus Act allows. And so in many ways, this is more of a legal ruling because he ultimately factually says, I find that they did what they were told to do, but what they were told to do by Pete Hegseth goes further than what is allowed. In other words, they are, according to this district judge, doing things that are in his view, law enforcement activity, they're subject to the Posse Comitatus Act. They are engaged in what he viewed as law enforcement.
Let me just give you an example because you and I both know the Fourth Amendment, I teach it as part of criminal procedure. Basically these officers were told that they could consistent with the Posse Comitatus Act, stop people and frisk them. I mean, they don't use the term stop and frisk, and there's a wonderful part of the decision work. There's an effort to relabel what they're doing so that they don't use buzzwords that would trigger the idea that this was actually law enforcement activity, but they actually are stopping people in frisking them. And the judge calls that out saying in his view, that is law enforcement activity. That is not just protective activity that would be allowed under the Posse Comitatus Act.
In other words, it would be fine if all they were doing was just making sure that ICE for instance was safe doing its role, but they can't engage in the stopping, the arresting, all of those sort of the engage in search warrants, all of those kinds of activities.
Mary McCord: And he had issues with some of the like engaging in traffic control and crowd control --
Andrew Weissmann: Absolutely.
Mary McCord: -- and roadblocks and all of those things. So you've kind of gone to the factual point. He said he went through the examples like you just indicated and missions where there were almost more National Guard members than there were ICE doing a particular mission. And he said, this is pervasive and this is domestic law enforcement. But the reason he got there and was able to actually say that this was a violation of the Posse Comitatus Act is because he did deal first with that legal question, which is, is the authority that the president used, and he used two bases of authority, this Title X United States code Section 12406, and his quote, unquote "inherent Article II authority under the Constitution" are either of those a bases for an exception to Posse Comitatus.
And spoiler alert, the judge says, no, those are not exceptions. Posse Comitatus applies. He goes extensively through the history of Posse Comitatus Act. Now Posse Comitatus Act was not actually enacted until reconstruction after the civil war, but he goes all the way back to the founding when the framers of the Constitution, right, were very, very concerned about a standing army. They were very, very concerned and there's parts of the Declaration of Independence that actually reflect what the framers did not want to have, which had been experienced in England under the king, right, where the military is engaged in law enforcement of the population. And so even before Posse Comitatus Act, there's always been embedded into the constitution and throughout our history this real distaste for the military to ever be engaged in domestic law enforcement, and he goes through that history.
And then he comes to the words of the act, which like I said, criminally prescribe engaging in domestic law enforcement, unless there is an explicit statutory or constitutional exception. He first deals with this statute 12406 that we've talked about in the past. This is the one that allows ultimately the Ninth Circuit in staying his first injunction, said one of the bases, the predicates for 12406 federalizing the National Guard is when the ability of the president to execute federal law has been significantly impeded. And Judge Breyer, I think correctly said, that's a very capacious understanding of when the president might be able to federalize National Guard, and it can't be that that also means it's an exception to Posse Comitatus for a couple reasons.
The Insurrection Act, which has some similar provisions, but has a lot more protections in it. On one provision, it has to be requested by the state governor or the state legislature. In another situation, there has to be sort of an inability to execute the laws through ordinary judicial proceedings, which means a court would be involved. Another provision where you can invoke the Insurrection Act and federalize the National Guard and have an exception to Posse Comitatus is when the states are refusing to execute the law. And he says, none of those things are happening here.
So that if 12406 was an exception, it would basically be a total loophole that you could drive a truck through. And he even says, if using the way the Ninth Circuit interpreted 12406, that it allows for federalization whenever the president has been impeded in the ability to execute federal law, he gives some incredible examples. Assume for example the president relying on IRS data, showing that a sizeable percentage of corporations and individuals are using tax shelters to avoid paying taxes, could claim he was unable to execute the tax laws and federalize the National Guard.
The president relying on EPA studies showing that pollution in a river cannot definitively be traced back to a specific manufacturing plant could claim he's unable to execute the Clean Water Act, federalized the National Guard. So he says it can't possibly be that anytime you could federalize under 12406, that means you can engage in just any type of domestic law enforcement, including the things you talked about, stopping and frisking, right?
Andrew Weissmann: Right.
Mary McCord: And blocking traffic and all of these things. That would be such a huge, huge loophole.
Andrew Weissmann: Can I point out something else that I thought was fascinating and it gives you faith in career military? He actually used the career military testimony --
Mary McCord: Right.
Andrew Weissmann: -- to support his view. The career military people were not sitting there saying, oh, the Posse Comitatus Act doesn't apply and there are all these exceptions.
Mary McCord: That's right.
Andrew Weissmann: He talks about how William Harrington, who is the deputy chief of staff in the United States Army North, it's the U.S. Northern Command. And he cites him saying that to Mr. Harrington's knowledge, everyone in U.S. Northern Command knew that the Posse Comitatus Act applied and, quote, "no one expressed a contrary view," unquote. He assumed it applied because he had been trained in this. He did not have this cockamamie, that's the fancy legal term, this view, which was just like, how can I interpret black to be white to just allow the president to do whatever he wants. He actually quotes Donald Trump saying that. And you have the military saying, we assumed that if we were doing this and we were federalized that we could not engage in domestic law enforcement because there was a federal statute, the Posse Comitatus Act that prohibited it.
Mary McCord: Yeah.
Andrew Weissmann: And to me, it reminded me so much of the 9/11 decisions coming out of the Supreme court in the second Bush administration where the military justice system was giving more rights than were being given to and being sought to be given by the administration. And military justice was like, no, we can do this in a normal procedural way with process. This idea of we can do this with due process is something that's going to really be a through line to something we're about to talk about in terms of what happened this weekend.
Mary McCord: Yeah, we are. But before we break and come back and talk about that, the other major legal ruling here was there's no inherent constitutional exception for the president to just say for purposes of protecting ICE and federal property, you can engage in domestic law enforcement. And this is where our listeners will know we come back to Youngstown, the steel seizure case, the judge goes through. He is like, first of all, Posse Comitatus Act says it has to be an explicit statutory or constitutional exception. There's no explicit exception in the constitution that says the president can do this.
Our constitution is set up given Congress the power over the militia. And the National Guard is just the modern day word for the militia and that under Youngstown we're in that third category we've talked about that when the president takes measures incompatible with the expressed or implied will of Congress here we're talking about the Posse Comitatus Act, his power is at its lowest ebb, where then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
And here, because of course, Congress was clear about what constitutes an exception to Posse Comitatus and because Congress has the power over the militia, Judge Beyer rejects this argument that the president can do this with his inherent authority. This is a big deal. Obviously, it is a district court decision subject to review, but the president has been invoking inherent constitutional authority for lots and lots of things. Now, obviously this particular issue is about use of the military for domestic law enforcement, which is not exactly the same as every other issue, but he has also used that for example, to do things like fire people like Fed Governor Lisa Cook, right? I mean, he is rolling out inherent constitutional authority as sort of a secondary reason to so many of his actions. So this will be really important to keep our eyes on. We could spend the entire episode on this particular issue, but unfortunately we can't. So, should we take a break and --
Andrew Weissmann: Yeah.
Mary McCord: -- and come back and talk about the unbelievable flurry of activity. I feel like I am on Groundhog Day back to March 14th with what happened over Labor Day weekend in terms of children being put on flights and getting ready to be deported.
Andrew Weissmann: Absolutely. Let's take a break and come back and talk about that.
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Andrew Weissmann: Welcome back. So let's talk about the effort by the administration to quote the district judge in D.C. over Labor Day weekend to spirit out without due process children, children who are entitled to a whole variety of congressional due process that is extra because of their being minors. But I just want to make sure people understand a different way of doing something. I recall when I was a relatively young prosecutor and we had a view that as to how the law applied to gambling ships in New York that were leave from New York, but then go out to see into international waters and if they had that as a plan within New York, which was illegal, but they were going to do the gambling in the international orders where it would be legal, was that a violation of law or not?
And we understood that this had not been litigated. And we understood that there was some doubt here. So we really did not want to bring a criminal case and subject somebody to criminal law and to the dire consequences of that when there's that, that level of uncertainty. And what we did is we talked to the company who was doing this and said, we'd like to do this as a civil forfeiture action of one civil thing, to test the law, to see whether we're right, that this applies or doesn't. And by the way, the district judge disagreed with us and said it didn't, but that was exactly why we did it that way.
But the idea that you would in this situation, let's assume that reasonable minds could differ. Here you have somebody at the very least taking a strained or not clear view of the law and applying it to minors, to spirit them out of the country. And they made by the way, factual representations that were the government did belied by the record, which the district judge pointed out. But the idea that you wouldn't figure out a way to test what the law is first before doing something that is so harmful and cruel. There's a way if the government in good faith believed that they were right on the law, there was a way to do this and to test it without imposing these kinds of consequences on these children.
Mary McCord: Well, this is consistent with the shifting of the burden we've seen in this administration --
Andrew Weissmann: Exactly.
Mary McCord: -- rather than try to be assured that the things that the policy initiatives and other things here, removing children from the country, rather than making sure they're legal, they just do it and put the burden on others to bring a lawsuit. And here it's pretty extraordinary because really the only reason that lawyers learned, at least based on what I can tell from their motion for a temporary restraining order and complaint, that lawyers started learning that some of their minor clients, these are Guatemalan children who came in as unaccompanied minors into the country. They've been in the custody by virtue of law, of the Office of Refugee Resettlement, known as ORR. They've been in that custody. They're entitled by law to be put in particular type of proceedings where they cannot be removed on an expedited basis. They're entitled to an attorney. They're entitled to seek asylum, all of these kind of things. These are all part of the law. It's the Trafficking Victims Protection Reauthorization Act. And it means that they can't just be spirited away in the middle of the night, or at least that's the position of their attorneys.
So they all have their own immigration cases while they're in the custody of the Office of Refugee Resettlement. And the reason the lawyers found out that this might be happening is first, some of their cases disappeared from the docket. Like literally, I have this case and it's now not on the court's docket. And then they got word that children were being put on planes to be sent back to Guatemala. And within apparently a couple of hours from when they raced into the court overnight, August 30 to 31st, the judge in the D.C. District Court issued an immediate stay, immediate TRO of any planes leaving with any children on it on the morning of August 31st at 4:22 in the morning.
Andrew Weissmann: So that would be Sunday morning.
Mary McCord: That's right.
Andrew Weissmann: And by the way, the district judge recounts all of this that she learns of things happening at 1:00 a.m. Some of the issue stuff at 2:00 a.m. She's trying to get the government on the phone to find out what's going on. This is happening on a Sunday morning on Labor Day weekend, that there's no notice being given. There's no hearing, there's no due process whatsoever. Remember 9 to zero, the Supreme Court had said that people are entitled to due process before they are removed.
Mary McCord: So, at 4:22, she issues this emergency temporary restraining order. None of the named plaintiffs, which had pseudonyms, but named plaintiffs, I think there were 10 or maybe more could be removed. And she schedules a hearing for 3:00 on Sunday afternoon. Then a few hours later, she gets word. She says the court received notification that punitive class members because I should remember. I didn't say this yet. When the complaint was filed, it was on behalf of these named children, but also they sought to eventually have a class certified of all Guatemala children in this situation of having come here as unaccompanied minors and being in the custody of ORR.
So she says a few hours after issuing this TRO against removing the plaintiff, she says the court received notification that punitive class members are in the process of being removed from the United States. The hearing previously set for 3:00 has now been rescheduled to 12:30. Like she moves it up by almost three hours to make sure she gets the government in there immediately. That's when she has the hearing like you indicated, and she grants given the exigent circumstances, the court's determined an immediate order is warranted to maintain the status quo until a further hearing can be set after full briefing. And she orders the government to make sure that I'm going to just read from it. The court orders the defendant cease any ongoing efforts to transfer, repatriate, remove, or otherwise facilitate the transport of any plaintiff or member of the punitive class from the United States. She also makes clear if they're on planes, they need to be declaimed, et cetera, and then ask for the government to give it a status report by 4:00.
Then astoundingly to me, they missed their deadline. She orders them to respond, you missed your deadline. In finally comes the government saying, we didn't know about your order because we hadn't entered our appearance in the case yet, your honor. And so we didn't get the electronic notification of the order. And then they report on the children have been declaimed. And she says, I want to know every child is back in the custody of the office of refugee resettlement. They go through five status reports like every couple of hours, because each time she's like, I need more, I need more until every single child is there. Finally yesterday, Labor Day, they were able to say every single child was back in the custody of ORR.
Andrew Weissmann: And so she's going to hear briefs and then she'll issue a decision on the law and facts. I want to just focus for a moment on the facts here and then we'll talk about the law that is cited by the Department of Justice attorney. The Department of Justice says, well, what we were doing was we were reuniting these children with their parents. All of the parents had made a request to have their children brought back to Guatemala from the United States. That was the representation. And the complaint here, which has declarations in it, sworn statements, belies that, and that (inaudible) points that out saying, wait a second, there was no hearing. You say that, but you haven't given an opportunity to be heard.
And then she points out and there's a declaration, which I'm just going to give you an example of, one of the declarations is from a minor who's got counsel who says, my mother is not alive, is dead. My father abused me. I do not want to go back to be with him. And there's no request that was made by either parent, obviously by one it's not possible. And the judge says, this is a factual issue and you have given no opportunity for them to be heard. It is the Boasberg case all over again.
Mary McCord: Yeah, but with children.
Andrew Weissmann: -- except but with children. And the idea is that let's say there were a hundred people and let's say 98 of them were actually trendy UA. The TDA, the other people are entitled to say, not just legally, you've screwed up because you don't have the ability to do this in the way you said, but factually I'm not in that group. Well, here, the government's just saying, we've determined that everybody was asked for, but that's not the factual record. And that is what the courts are for, and that's what the judge says. That's what we are here for. You know what government, if your right factually, then you will make this argument.
I should point out, she is very skeptical. Legally, they cited to a provision that basically just says that the government agency has the power within its purview to function as an agency that can reunite people. But it doesn't purport to give powers that override any due process powers. It's like saying, Mary, I'm going to assign you to this task. It doesn't mean you basically do it by violating every law. She doesn't make a definitive ruling. She said, I'm going to hear you out on that. But to quote one expert who's looked at this saying, it's hard to square that with even a good faith argument, but again, let's not prejudge it.
The idea is that there was no effort whatsoever to give the plaintiffs who are minors, the ability to challenge the law or the facts --
Mary McCord: Due process. Due process.
Andrew Weissmann: And it is happening over Labor Day weekend with minors --
Mary McCord: Yeah.
Andrew Weissmann: -- after everything that's gone on and the courts around the country, judges who are not solely appointed by Joe Biden. You have one of the decisions that happened in the last week was a judge who was appointed as a U.S. attorney by Donald Trump, who was appointed to the bench by Donald Trump, who basically said your effort in the Trump administration to recuse all of the Maryland judges, because they're not allowed to enter a two day TRO is improper. And that was a conservative judge.
Mary McCord: Actually, this is a good segue to that. So there'll be more to come like you said more to come in the Guatemala children case that'll get fully brief. There was no reason to do this in that kind of rush over weekend. But the case you're talking about, this is a case because of all of these things, right? Because of the Judge Boasberg situation with people being put on planes. Well, they were spirited out of the country because of so much quick movement. Remember also deporting people to places like South Sudan and et cetera. The chief judge in the district of Maryland had issued a standing rule that said when somebody files a habeas, remember because the Supreme Court said somebody's about to be removed, can seek habeas review to say that my removal is unlawful. Once they've filed habeas, there's 48 hours that government, you just can't remove them while we catch up and get a chance to hear it.
This is what the president challenged. They tried to get rid of this standing order by suing the entire bench. And the judge appointed from a different court, obviously, because you couldn't have one in the Maryland judges actually rule on this. This was a judge from the Western district of Virginia. Like you said, appointed by Donald Trump. Also previously the U.S attorney under Donald Trump in the first Trump administration.
Andrew Weissmann: It's Thomas Cullen.
Mary McCord: Cullen.
Andrew Weissmann: Right.
Mary McCord: He wrote an incredible opinion, right? Because he says, look, I can see where the executive might have concerns. Again, I'm not judging the merits. Just like you just said with the judge in D.C., I'm not judging the merits of this right now. Maybe you do have legal arguments and I can see where the executive might have an argument about a standing order that stays executive action for 48 hours. But you could raise those concerns by appealing in any case where they stated, and instead you haven't done this. He says, that's what would be normally happened or you might go to the Fourth Circuit Judicial Council and try to have the rule revise.
But he says, this isn't normal times. This is what he says. As events over the past several months of revealed, these are not normal times, at least regarding the interplay between the executive and this coordinate branch of government, meaning the judiciary. It's no surprise that the executive chose a different and more confrontational path entirely instead of appealing any one of the affected habeas cases or filing a rules challenge with the judicial council, the executive decided to sue and in a big way. And he goes on to talk about, suing all the judges of the district court. In casting its wide net, he says the executive ensnared an entire judicial body, a vital part of this coordinate branch of government and its principal officers in novel and potentially calamitous litigations. He also drops a footnote to talk about, oh, my gosh. I'm triggered, right?
Andrew Weissmann: Yeah. Right. But by the way, Mary, you know, I have my screen on.
Mary McCord: I can see we're reading the same thing on your screen.
Andrew Weissmann: Exactly.
Mary McCord: I can see you reading it.
Andrew Weissmann: So by the way, let's put in our show notes. We will put a link to this district judge decision.
Mary McCord: Decision.
Andrew Weissmann: And it's really important for this reason. You are going to continue to hear over and over again that these are district judges who are out of control, that they're rogue judges, that this is just some left wing propaganda, that these are political people. Let me remind you, Judge Cohen was the U.S. attorney appointed by Donald Trump. He is a judge appointed by Donald Trump. This is not some never Trumper Democrat --
Mary McCord: Well, not someone like he describes in the footnote. Right?
Andrew Weissmann: Exactly. So the footnotes were remarkable and got a lot of attention deservedly. And this judge by the way, talks a lot about legal language and is very focused on the communicative skills that are important to judging. So this is very thought through as to how he phrases this.
Mary McCord: That's right. So here's what he said. Over the past several months, principal officers of the executive and their spokespersons have described federal district judges across the country as, and he puts quotes along all of these adjectives left wing, liberal activists, radical politically minded, rogue unhinged, outrageous overzealous and unconstitutional, crooked and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.
He is saying alarm bells, alarm bells, judicial branch is a co-equal branch. You can't just do this executive. And ultimately he dismisses this case because he says, this is just headed to a complete clash of these two branches in ways that could never be justiciable (ph). And he just dismisses the case outright. Now we will see if the executive, I don't believe they've filed any type of notice of appeal. Is that right, Andrew? Or am I --
Andrew Weissmann: Not yet. And it also is just one of those things where there's so many ways if you thought this was improper to do this in a different way. And that's the judge's point.
Mary McCord: Which his point.
Andrew Weissmann: And again, to be clear, this is a conservative judge who has joined many other of his conservative brethren on the bench who have taken this administration to task in terms of how they are conducting themselves and showing a lack of respect, not for the judges, a lack of respect for the rule of law.
Mary McCord: That's right.
Andrew Weissmann: That's what he's reacting to. It is not a personal thing. It is the idea that you are denigrating them the same way you denigrate the news, and then the same way you denigrate lawyers and the same way you denigrate anybody who is disagreeing with you. And now with the courts being one of the last real checks here, because we have a (inaudible) Congress. That is why they're in for this kind of language. And it's, I think incredibly useful, particularly for judges of this sort of stripe of conservative judges to be standing up for the rule of law.
Mary McCord: Yeah. And that language that reminds me of the last point before we get a break. This kind of language in public statements and social media is not restricted to criticizing judges. It's criticized, really anybody that the executive perceives as an enemy or getting undue attention, including Mr. Abrego Garcia. And his attorneys filed in over the last week, a motion essentially for a gag order. Now, long time listeners will remember when this all came up during the prosecutions of Donald Trump, the attempted prosecutions that because of all the public statements being made, that would impact the jury and the administration of justice, there were limits put on what could be said. It would impact potential threats against witnesses and law enforcement agencies.
Here, Mr. Abrego Garcia is saying the way he has been vilified publicly without any factual support as a terrorist and a child abuser, et cetera. There's been no proof of any of that, but the highest levels of government, including the Secretary of Homeland Security and the attorney general have used those terms and they should be stopped by the court. The court in his still pending criminal case should issue an order restricting that type of language that can so prejudice him at trial and that also is in violation of their ethical and professional responsibilities.
Andrew Weissmann: Yeah. And we, I think last week read one of the social media posts from the Department of Homeland Security --
Mary McCord: That's right.
Andrew Weissmann: -- denigrating Mr. Abrego Garcia. So it's understandable that he would file this kind of motion. So we'll keep an eye on that. Let's take a quick break and then come back and let's just say cover a lot more.
Mary McCord: Yes. We're going to talk really fast.
Andrew Weissmann: Okay.
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Andrew Weissmann: Welcome back. So Mary had said at the outset that there was reporting in "The New York Times" that one of the lawyers for some of the defendants who had been prosecuted with respect to the January 6th insurrection, these are people who were prosecuted, all of whom have received some form of pardon or clemency. In addition to people who prosecute them, many of them have been subject to retaliation in terms of being fired, demoted, having their names on lists. And so that's sort of the topsy turvy world we're in. If that's not enough, the reporting is that one of the lawyers, Mark McCloskey had a meeting according to him with the Justice Department and pitched a plan to create a special panel.
He's proposing its run out of the DCUs attorney's office with Jeanine Pirro as sort of the head of the panel. And they would dole out financial damages to the rioters that is to create a fund for the people who are adjudicated perpetrators. And to be clear, that means that either they've admitted it themselves under oath, when they pled guilty or they went to trial and a jury found it or a judge found it. This is not unilateral government action. The kind of thing that we've been talking about that the Trump administration is doing. These are people who actually had due process just to put a fine point on it. A few of the people were waiting trial, so they would not fall into that category and their cases were just dismissed. So Mary, one of the things that I know you focused on and we actually both read is Enrique Tarrio had made a claim and the government opposed it. So what was going on there because we think there's a real interesting potential discrepancy in terms of at least this reporting and what the government actually did in the Tarrio Case?
Mary McCord: And I do want to be clear. That reporting is just based on what Mr. McCloskey has said to the public. He has said, I have gone and I've met with Justice Department officials and I've pitched this idea. Justice Department has not said, oh, we think this is a great idea.
Andrew Weissmann: Exactly.
Mary McCord: Now I do think that the president said something many months ago about maybe they're entitled to compensation. And there are some issues now about some of the defendants have asked to be repaid restitution that they had to pay as part of their sentences to compensate for damage to the capital and at least one person has had that paid back. I have no idea what the Justice Department is thinking about Mr. McCloskey proposal.
Andrew Weissmann: Right.
Mary McCord: But other things have happened that do seem to very much support this revisionist history that certainly President Trump himself and others have been trying to perpetuate for some time now. In contrast, we have a civil case brought by Enrique Tarrio, head of the Proud Boys and four other Proud Boys who all were found guilty of seditious conspiracy, and other related offenses regarding the attack on the capital, serious crimes given serious sentences. Tarrio was pardoned. The other four just had their sentences commuted, which means there's no wiping the conviction off of the records. It was just a commutation.
They filed a civil lawsuit. I think reading some tea leaves and thinking, this is an administration that's very sympathetic to us, we're going to see if we can get some money out of this administration. And in fact, I do believe that Mr. Tarrio and others were over on Capitol Hill not that long ago, talking about bringing this lawsuit and their lawsuit is a constitutional lawsuit seeking redress for multiple violations of constitutional rights. And they use incredibly inflammatory language.
They say it was a parade of horribles, egregious and systemic abuse of the legal system and the United States Constitution to punish and oppress political allies of President Trump by any, and all means necessary, legal or illegal, through the use of evidence tampering, witness intimidation, violations of attorney-client privilege and placing spies to report on trial strategy. The government got its fondest wish of imprisoning the J6 defendants, the modern equivalent of placing one's enemy's head on a spike outside the town wall as a warning to any who would think to challenge the status quo.
That's in the opening introduction of their lawsuit. To its credit, the Department of Justice did exactly what I would expect the department in any normal times to do. It filed a motion to dismiss on a number of different sort of preliminary grounds before even getting to the merits that it's barred by something called the Heck doctrine, which means you can't use a civil case to attack your conviction that would undermine your conviction unless your criminal case ended up with a favorable ruling on the merits to you. And first of all, all of these cases, these commutations, they're still up on appeal because remember those convictions were not wiped out only Mr. Tarrio's were. And there's been no indication of resolution of that favorable to you.
Yes, you got your sentence community, but that didn't undo your conviction. They say the United States has sovereign immunity on the constitutional claims and you can't therefore bring those in these courts. As far as this common law malicious prosecution claim that they also brought, they say it lacks merit because there is in fact lots and lots of evidence of the merits of these cases, right?
Andrew Weissmann: That was the key one. My reaction to this, Mary, was this is the kind of brief that we would've written, which is I'm sorry, you're not getting money for this. There are a ton of legal and factual responses here. And they, as you said, go through the legal ones, but it's so interesting that this brief was filed where they say there was lots and lots of proof here to support the allegations.
Mary McCord: Right.
Andrew Weissmann: It's disputing the whole idea that they were victimized and this was trumped up, no pun intended, allegations here. That I thought was really interesting. And the brief is signed, not solely by like the local U.S. attorney's offices. The people on the brief are people at Main Justice.
Mary McCord: Some of the evidence, just let me quote one word, incontrovertible, they use to describe the photo evidence against some of these Proud Boys. Incontrovertible, right?
Andrew Weissmann: To me, it is really interesting that, and I'm not trying to say, oh, this absolves the administration of any and all conduct. But I do want to call out that this is what I thought was a responsible, normal brief --
Mary McCord: That's right.
Andrew Weissmann: -- that is fact based and legal. It was based in the law and the facts. Now what's sort of remarkable is that we're both sort of a little shocked that --
Mary McCord: It's like I am, but I'm not because this is exactly what those in the torts branch of federal programs like --
Andrew Weissmann: Of course.
Mary McCord: -- this is what they do. They defend the government against claims brought where there's no basis for the claims. And also they lack merit. It's what you would expect. But given that things we were just talking about, we were a little bit concerned that these cases might end up in civil settlements. So this is a good sign. I hope that the attorneys who signed this are not in trouble over there. They're doing exactly what they're supposed to do. And the evidence was incontrovertible about what some of these folks did, the photo and video evidence. We all saw it. Plain as day.
Andrew Weissmann: So other things, obviously, there's lots and lots going on. We have talked about the judge on the east coast who found that Alina Habba is not properly appointed. I don't even know what to call her now. It's like a special assistant de facto U.S. attorney and that was sort of an end run around congressional power. The same kind of motion understandably has been made by the federal defenders that is public federal defense lawyers, both in L.A. and in Nevada challenging the same thing that is going on there.
My take on this is the U.S. attorneys were remotely qualified. The judges would've actually just re-upped them in the same way that has happened in both the Southern District and the Eastern Districts of New York. But this is ongoing litigation now, both for Alina Habba, but also in Nevada and in L.A. So we'll keep an eye on that as well as a real reflection of this challenge to congressional power, which in many ways is so much of what we're seeing in all of the things that we've talked about.
Mary McCord: Oh, yes. Okay. In the remaining time we have, we will talk about things that deserve at least two hours, but I have just a few high level points about both the tariff decision and --
Andrew Weissmann: Yeah.
Mary McCord: -- the case involving Lisa Cook, and then I think we need to explain what happened in the foreign aid case. So in the tariff decision, we had two kinds of tariffs here, reciprocal tariffs, what we're supposedly based on the emergency of the trade imbalance that we've had for a very long time with some of our trading partners and the trafficking tariffs, which were against Canada and Mexico and China, basically based on this so-called national emergency declared by the president, that they weren't doing enough to stem the flow of fentanyl into the United States.
Andrew Weissmann: Trafficking, meaning trafficking of fentanyl.
Mary McCord: Exactly. And these tariffs, unlike some of the other tariffs were not done under any explicit congressional authority, given to the president to issue tariffs. They were under his emergency authority to use certain economic powers when there is a national security type of emergency. And that is the International Economic Emergency Powers Act, IEPA, which we've talked about before, which gives the president lots of different options for things he can do, for example after 9/11, George Bush used it to get foreign terrorist organization designations that would allow for cutting off any kind of economic support or material support to anyone involved with a foreign terrorist organization. That was an emergency of 9/11 and sort of an economic related sanction. So you can see how this has been used in the past.
And as the entire Court of Appeals for the federal circuit, which said en banc, they said, IEPA gives the president lots of powers. It doesn't give him the power over terrorists or taxes. Those are reserved to Congress. So the two things I wanted to point out about this, they also said, if we were to say that IEPA authorizes this, something has never been read to authorize before, something no executive has attempted before that would raise the major questions doctrine, right?
Andrew Weissmann: Wait, this is bite ask.
Mary McCord: Oh yes.
Andrew Weissmann: So the major questions doctrine is a judicial construct that was created and sort of promulgated and sort of come to the fore. Well, President Biden was in office to basically say, hey, you want to do all these sort of, quote, "liberally things" using so-called congressional power. The court said, no, no, no, if it's something so big, so major, we would expect Congress to act really, really clearly. And so we're not going to accord some sort of deference. We're going to actually think the bigger the question, the more we want to see explicit authorization. And that was used very much to curtail the president and Congress's power and to sort of cut it down.
Mary McCord: It's like tables are turned. If Congress wanted the president to be able to issue these kind of tariffs, it would've said so clearly in the statute, and it did not. The other thing I thought was interesting is the fallout of the Supreme Court's decision in CASA v. Trump limiting universal injunctions keeps popping up. And one of the things that the federal circuit did is said, we have to remand this now to the district court to determine how to apply cost restriction on universal injunctions, because the injunction prohibited these tariffs as to everyone and we actually just have a handful of plaintiffs here, some small businesses and 12 states on behalf of their businesses in those states.
So again, that's an issue. And even Judge Breyer in the decision L.A. talked about the impact of CASA and injunctions. He said, I'm limiting my injunction to here in California, not to any other state where this might happen. So things to be on the lookout for this will clearly get some additional review. Lisa Cook, two points there. The president claims that he has fired her for cause because the statute that created the Federal Reserve Board, the Federal Reserve Act says, members serve 14-year terms and can be fired only for cause, but doesn't define what cause is. And so the president said I'm firing her because she allegedly misrepresented on two different mortgage applications, that two different residences were her primary residence. And this is some --
Andrew Weissmann: Within a relatively short period of time.
Mary McCord: Within a relatively short period of time. Now, she hasn't been charged with that. Apparently, DOJ because they announce everything publicly now that they're doing, and I'm being facetious there. If people didn't detect that in my voice.
Andrew Weissmann: I think they're picking up what you're putting down.
Mary McCord: I think so. In fact, this is a key point here. Apparently, Department of Justice is investigating this, but he says, basically I don't need to wait for any investigation. I'm firing her now. And the complaint raises questions that cause has to be inefficiency, neglective of duty or malfeasance in the way you execute your official responsibilities. And at any rate, I got no notice or opportunity to even be heard on this at all. And this is a pretext and there's other arguments.
The point I wanted to make about this that I find really amazing is that in arguing in opposition to this, not only did they say, hey, Article II authority, he can fire. This is cause, it's sufficient. They say, you got notice and opportunity because the president made public the allegations against you on social media and you had five days before he fired you, that you didn't even defend yourself or try to explain why this shouldn't be caused.
Andrew Weissmann: And the district judge says, well, you're not arguing government, are you, that that is notice for due process purposes. And the lawyer says, oh judge, I am. I sort of had the same thing --
Mary McCord: That is dumbfounded. I'm dumbfounded.
Andrew Weissmann: -- from my student. The judge though, to her credit, didn't just sort of leave with her jaw clattering to the ground and said really, did she know that she had five days? In other words, was she given --
Mary McCord: Did you tell her that? This is your opportunity to be heard?
Andrew Weissmann: And he had to say no. And so it's absurd to think that you're supposed to assume because the president who tweets about everything and everything that that's supposed to be notice of your right of opportunity --
Mary McCord: That's your due process
Andrew Weissmann: -- and if you don't do anything at that point, like somebody who is a board member on the Federal Reserve is supposed to respond --
Mary McCord: Respond to a tweet.
Andrew Weissmann: -- to every little tweet. I mean, it is unbelievable that he said, yes, that the lawyer said, yes I am.
Mary McCord: I know. And that it's in writing in their opposition.
Andrew Weissmann: Yes, exactly. So, Mary really quick thing on D.C. The D.C. circuit had a sort of interesting potential en banc move.
Mary McCord: Yes.
Andrew Weissmann: What happened there?
Mary McCord: Yeah. We had talked about the two to one decision over a vociferous dissent about the cutting off of foreign aid. This was actually one of the very earliest cases to pop up to the Supreme Court on the emergency docket and then go back down. And that's a case where in the 2-1 decision, the two judges in the majority have basically said your separation of powers claims are really just statutory claims, not constitutional claims and they're not proper to be heard by us and your Administrative Procedure Act claims are not proper to be heard by us and I won't go over all the details. It's much more technical. We talked about it a couple of weeks ago. And then the plaintiffs immediately sought en banc review.
Andrew Weissmann: En banc review, meaning that all of the sitting active judges, the ones who are not taking senior status, but the ones who are sort of full active judges get to weigh in. If they take it for --
Mary McCord: That's right.
Andrew Weissmann: -- that sort of full review and they can then review and decide the actions that was decided by a panel of just three.
Mary McCord: Right.
Andrew Weissmann: And here you had the two in the majority and you had Judge Pan in dissent.
Mary McCord: That's right.
Andrew Weissmann: And so what happened?
Mary McCord: Right. So the decision there, the majority would have vacated the lower court's injunction that said you can't just freeze and not spend money that's already been appropriated through the end of the fiscal year for foreign aid, that that would violate separation powers. The impact of that would have been to vacate that injunction. What the en banc court said, first, they issued an order saying there's no mandate has issued yet, which means the injunction below has not actually been vacated yet. And so we are going to deny a motion to stay all of this here. This is the first thing they did.
That's when the government then rushed up to the Supreme Court to say emergency docket, we can't have that. We need you to basically intervene here to make sure that the lower court's order injunction is not in effect. Then came in the full en banc court, the three judges on the original panel revised their opinion to allow the Administrative Procedure Act claims to go forward on a certain basis and then denied en banc review, which essentially moots out this emergency docket appeal to the Supreme Court because they are allowing certain things to go forward. And it's interesting because Judge Pan still wanted to have en banc review to go over this issue about separation of powers being as set --
Andrew Weissmann: Is it constitutional?
Mary McCord: Right.
Andrew Weissmann: Yes.
Mary McCord: And she says, they'll still probably be another opportunity for us to do that. And she said, this full court's decision is based on the revision of its original panel decision and an immediate remand for the grantees. Remember these are grantees of foreign aid, to litigate claims that the executive violated the Appropriations Act under the APA or acted ultra vires, vis-Ã -vis, the Appropriation Acts may be the most efficient way for the grantees to seek access to the $15 billion of appropriated funds that are set to expire September 30th. Our denial of en banc review moots the government's pending motion that asks the Supreme Court to stay the district court's preliminary injunction pending this court's completion of the en banc review process.
And essentially if we'd have granted the position I just added the essentially. She says, if we had granted the position for rehearing en banc, and if the Supreme Court had granted a stay of the preliminary injunction, there might have been a significant gap in time with no operative order requiring the government to obligate the funds in question. But now with an immediate remand, the grantees may well secure relief more quickly by pursuing a new preliminary injunction based on their APA or ultra vires claims before the district court. So this was a court being very practical in saying --
Andrew Weissmann: Very, very practical. And the upshot is, is that the administration's trying to get rid of congressional funding has been stayed by the district court and that is still in effect. And it operates to have the two judges who had said that you want to throw the whole thing out. Rather than it going up for en banc review where they likely would been reversed by the en banc panel, they revise their decision to say statutory claims can go forward. And it also operated to keep the Supreme Court at bay, at least for the moment. So this is a big win for the people who want their congressional funding.
Big, big, big picture. Think of it once again as the administration versus Congress. It's again, this effort to override what Congress had done with the burden being placed on challengers to have to sort of vindicate their rights. Okay, well, Mary, I know we went over and part of that is because we sort of planned things out and then there was this last minute decision that came out of the blue from --
Mary McCord: Yeah.
Andrew Weissmann: -- Judge Breyer. It's super important to have discussed that. It's an effort to sort of get a real take on legally on what is happening and to fit into the last week's event.
Mary McCord: Bigger picture.
Andrew Weissmann: Exactly.
Mary McCord: Yeah, that's right.
Andrew Weissmann: Thank you all for listening. And remember you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content.
Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producers are Iggy Manda and Ranna Shahbazi. And our intern is Colette Holcomb. Bob Mallory is our audio engineer and Bryson Barnes is the head of audio production. Aisha Turner is the executive producer for MSNBC Audio
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