A week into the second iteration of Donald Trump’s White House, hosts Andrew Weissmann and Mary McCord take stock of the abrupt and unrelenting changes to our federal government. Andrew points to security details yanked and security clearances revoked as blatant retaliation against Trump’s perceived foes. Mary highlights several judges who are pushing back against blanket pardons for J6 convictions. Then, they turn to Trump’s executive action on birthright citizenship, reviewing several challenges already in motion, including a case brought by Mary and her ICAP team. And before wrapping up, our two resident career litigators look at the withering independence of the Justice Department from the White House, and how all roads lead through the DOJ.
Further reading: Here is the New York Times’ piece on Kash Patel that Andrew mentioned in this episode: F.B.I. Pick Pushed False and Misleading Claims About Trump Investigations
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi and welcome back to “Main Justice.” It is Monday afternoon, January 27th. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Hi, Andrew. And today I get to say good afternoon, Andrew. Nine out of 10 times I say, or more than that, 9.9 out of 10 times it’s good morning. But we are doing this a day early because one of us is unavailable tomorrow morning, so.
Andrew Weissmann: Right, now a friend of mine said, hey, in light of everything that’s going on, I assume you’re going to do daily podcasts. And I was like, no. But we are changing things up a little bit because there’s so much incoming. So we’re first going to start where Mary and I are going to give our take on something that’s happened in the last week that we found either shocking, surprising, or didn’t get enough attention.
Then we’re going to sort of turn to what we normally do, which is to cover a little bit more in depth with the caveat --
Mary McCord: Yes.
Andrew Weissmann: -- where Mary and I were talking about this, which is there’s so much to cover and we want to make sure we are hitting the key things. So we’re not able to go at least --
Mary McCord: Today.
Andrew Weissmann: -- now, today in as much detail and depth as we’d like to. So that’s just sort of the building blocks of today’s show. But Mary, what’s the heart of it? What are we going to talk about?
Mary McCord: So yes, so we will dig into the birthright citizenship litigation. I think we mentioned this executive order last week. We’ll talk about what the executive order purports to do. It’s already been temporarily enjoined by one court and there are lots of hearings coming up in very short order. We’re going to then talk about some of the issues. We’ve had a theme about the importance of the independence of the Department of Justice, and there’s a whole lot of things that have happened between our last episode and today that show a real, I think, effort and intent to get rid of that type of independence, not just at the Department of Justice, but independence even in other departments and agencies. You know, get rid of the people who don’t essentially pass the loyalty test because he doesn’t really want to be questioned. The administration doesn’t necessarily want to be questioned on any of its policy.
And then we will talk through some of the specific things that have been happening at the Department of Justice in the last week, including some new policy memos, new priorities, the halting of certain types of cases, et cetera. And then finally, we’ll take a real quick look ahead at what’s on the calendar this week, including a scheduled confirmation hearing for FBI Director nominee, Kash Patel, and also the DNI, the Director of National Intelligence, Tulsi Gabbard. But first, okay, what’s your hot take on something that happened this week? There’s just so much that you want to make sure listeners hear about.
Andrew Weissmann: Okay, so my hot take for last week is many people may have heard that the president pulled the security detail for a variety of people. For Mike Pompeo, the former Secretary of State, General Milley, and Dr. Fauci. I’m just going to focus on Dr. Fauci for a second. I’m not going to go on and on about all of my opinion of him and what we owe him. I want to talk about the idea that this was something that Trump decided to do and announce, that it was announced publicly. There’s no question that you could decide for any particular person that a threat had and that you would quietly pull security or pull it back so it’s not as much. There’s nothing wrong with that if that had been the situation.
But the only reason that you would announce this publicly is one of two things that I can think of. One is to send a message to other people that this is going to happen if you do not toe the line. The second is to put a target on their back, is to actually make it clear that there’s going to be less resistance, you have a clearer path without that. And it could be one or both of those things that is happening. And so the idea that you would do this publicly to me is proof positive what is going on in terms of retaliation and the message to people going forward.
Mary McCord: Yeah. Otherwise, like you said, you would do it quietly. And I mean, I think for many of us, we can see a lot of these things are being done. At least it appears for retaliatory reasons. In addition to these security details being pulled of various people, security clearances were revoked for a whole list of people, starting with about 50 former national security officials who had written a letter a couple of years ago on the issue of the Hunter Biden laptop, you know, suggesting that it might really be Russian misinformation that is suggesting that certain things might be on this laptop. Now, obviously it turned out that there were relevant materials on the laptop to some of the things that had been investigated. But this was the best knowledge of the national security officials who signed that letter. And all of their names, they all had their security clearances revoked. And I think it is even clear in revoking those that the reason was because they signed that letter. So it’s basically saying, we are retaliating against you for exercising your First Amendment rights.
Andrew Weissmann: And just to be clear, the reason that you want people who have been in those positions to have continued clearance is it’s not a courtesy. It’s because they’re a resource.
Mary McCord: Yes.
Andrew Weissmann: That expertise is something that, especially in an area of national security that is apolitical, supposed to be apolitical, you want that ability to go to those people and get their assessment and get their take. And you want that push back and push and pull and testing of intelligence.
Mary McCord: And presidents and their administrations frequently go back to former national security officials long retired for their assessment of things. So yes, okay, that is a really significant hot take. Mine is actually a continuation of something we talked about last week, but now we’re seeing the fallout. We talked about the pardons, the blanket pardons of everyone convicted of any kind of crime related to the attack on January 6th. On that day, the attackers on that day, except for 14 people who got commutations, which means it cuts their sentence short, but it doesn’t actually get rid of their conviction. And then there was also a direction in that executive order that the Department of Justice would move expeditiously to dismiss with prejudice any outstanding cases that hadn’t yet gone to verdict, not yet having had a trial or a guilty plea.
So what we’re seeing now, and this is the notable thing I wanted to mention, is some judges pushing back. We’ve had at least three, there could be more, who have in granting the government’s motion to dismiss, have made statements in court, if there was a court appearance, but I think this has almost been entirely in writing and I’ve read what they’ve written, have really made clear that the dismissal does not wipe away, and the pardons and the commutations, none of it wipes away the reality of the violent attack on the Capitol on January 6th, 2021 and the effort to overturn the results of the election that day. That whatever the president has done with the stroke of his pen can’t change that reality.
And judges have, when asked to dismiss with prejudice, and our listeners will know the difference of with prejudice means it can never be re-brought again. Without prejudice means it could potentially in the future be re-brought again. Some of the judges have said, we will dismiss because we know it’s the executive’s prerogative to decide what to prosecute and whatnot, but the rules require it to be with leave of the court and we see no reason has been given to us to dismiss this with prejudice. That the only reason in the executive order about these pardons is to end a grave national injustice, which of course, the judges do not believe there was. And so they have pushed back, at least a few of them, and said, we’re dismissing without prejudice.
Even more significant in some ways than that is that Judge Mehta, who presided over the trials of the Oath Keepers, remember, nine of the people who got commutations were members of the Oath Keepers, found guilty of seditious conspiracy and other charges among them. He put out an order on Friday that amended the conditions of supervised release for those nine members of the Oath Keeper. I think it was all nine. I’m counting eight here, so maybe my counting is wrong. That includes location restrictions of requiring them to not knowingly enter into the District of Columbia without first obtaining the permission of the court, and second, ordering them to not knowingly enter the U.S. Capitol building or the surrounding grounds effective at noon on Friday.
Now, supervised release conditions are conditions that either can be applied by a court when you’re not sentencing someone to incarceration or they kick in at the end of your term of incarceration and if you violate those conditions, you could be re-incarcerated. So Judge Mehta did this essentially on his own as far as I can tell, but the response is almost more surprising to me. I should say not surprising, actually shocking. I know I used to think it was weird to say shocking, but not surprising, but the tenor in tone is what is shocking to me. The interim US attorney in the District of Columbia, who is not putting interim in front of his name, is signing things U.S. Attorney for the District of Columbia. His name is Edward Martin.
He has not been presidentially appointed in Senate confirmed, so he has no business saying he’s the U.S. attorney. He can say he’s the interim U.S. attorney because that’s what he is. He immediately put out a public statement that was pretty political in terms. He said, if a judge decided that Jim Biden, General Mark Milley, or another individual were forbidden to visit America’s Capitol, even after receiving a last minute preemptive pardon from the former president, I believe most Americans would object. The individuals referenced in our motion, because he files a motion then asking Judge Mehta to immediately vacate that order, those individuals have had their sentences commuted. Period. End of sentence.
Now, never mind that a pardon is different from a commutation. Just the sort of political tenor of that statement is surprising to me for an interim U.S. attorney or someone in the Department of Justice. And then he actually came in and filed a motion requesting, really kind of demanding, that Judge Mehta vacate this order of supervised release. And I can understand that that’s their position, that the final sentence has been commuted and that the supervised release was part of that sentence and therefore is commuted. And we’ll see whether Judge Mehta, how he responds to this motion.
But what’s surprising to me, the U.S. Attorney’s Office does not represent these defendants. It wasn’t their attorneys that came in and said, Judge Mehta, you can’t do this. It was the government who had prosecuted him that came in and said, Judge Mehta, you can’t do this. That’s what’s remarkable to me.
Andrew Weissmann: So I’m going to play devil’s advocate. I totally agree with you on the tenor is shocking and we’ve talked about the writings that Emil Bove now at the Department of Justice and Todd Blanche in connection with their filings when they represented Donald Trump personally as his criminal defense lawyers were filing in Manhattan and the judge’s response to that. So I totally agree with you on that. I do think that if their sentence was commuted, if there’s no sentence, the supervised release term is legitimately viewed as part of that sentence. So I think that I can understand the government’s legal position that the supervised release period is part of the sentence, and if the sentence has been commuted, whether they like it or not, you can’t now impose a condition.
And I also don’t have a problem if the government, if it thinks something is just not legally feasible, even though it’s sort of against its initial interests, which was prosecuting these people, that it has an obligation to say I don’t think you can do this legally. So I don’t have a problem with that. I have a problem with exactly what you said, which is the manner in which it was done was just so not in keeping with how you behave at the department in terms of what we can expect in the norms just seemed to be pretty shocking.
I did want to point out, Mary, to your point about the judges who are saying that you can do all of these pardons, but it doesn’t change the underlying facts. I just wanted to quickly read something that I found really poignant from Judge Chutkan. I’m just going to read a little snippet of it. She said, and this is a quote, “The dismissal of this case cannot undo the rampage that left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage. It cannot diminish the heroism of law enforcement officers who struggled facing serious injury and even death to control the mob that overwhelmed them. It cannot whitewash the blood, feces, and terror that the mob left in its wake. And it cannot repair the jagged breach in America’s sacred tradition of peacefully transitioning power.”
That’s all a quote she is citing and quoting from at times from D.C. Circuit cases. But I just found it so poignant that she’s basically saying, you can’t whitewash this. I mean, you can try to, but this is part of the historical record for good. And it’s nice to see a judge with Article 3 powers and Article 3 tenure speaking out as I think she should base on what’s happening. Yeah.
Mary McCord: And, you know, I think it’s important too, because judges, and I think this is correct of them, they don’t usually write op-eds or speak on television, but they can speak through their actual rulings on motions in front of them. And that’s what we’re seeing here. And I do agree with you that I do think the government has an obligation to file something if they think the judges got it wrong, even when it comes to these conditions of supervised release. But you would expect normally they might kind of do it in tandem with the defense counsel, right?
Andrew Weissmann: Yeah, exactly.
Mary McCord: We file to defense counsel. Defense counsel is moving saying you can’t do this and the government’s coming --
Andrew Weissmann: Absolutely.
Mary McCord: -- in saying we agree with the defendants on this. So it just seemed interesting to me that they got out ahead of everything.
Andrew Weissmann: Totally.
Mary McCord: Particularly when put together with that statement.
Andrew Weissmann: Yeah. So Mary, why don’t we take a quick break and then come back and talk about birthright citizenship, what it is, what the Constitution provides, what Donald Trump’s administration is claiming. And then there’s a whole host of lawsuits. And Mary McCord and ICAP has brought one of those cases. And so we are really lucky in that sense to have somebody who’s really steeped in the details here to give us an overview of what’s going on.
Mary McCord: All right. Let’s do that.
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Andrew Weissmann: So Mary, birthright citizenship, what is it?
Mary McCord: Right. Well, as we talked about last week, because when we recorded last week, we did have the president’s executive order that purports to be revoking the right to birthright citizenship for the children of certain immigrants. And there were two categories, you’ll recall. This is mothers who are undocumented where the father is not a citizen or legal permanent resident.
Andrew Weissmann: Say that again slowly, because I’m just trying to get my head around it.
Mary McCord: Right. Where the mother is undocumented and the father is not a citizen or legal permanent resident, then that child would not have citizenship, U.S. citizenship.
Andrew Weissmann: Okay.
Mary McCord: So the second category is where the mother is here lawfully. There’s no unlawful presence here. She’s here lawfully, but temporarily, and the father is not a U.S. citizen or legal permanent resident. And the examples of temporarily being here, lawfully, are visa examples. Tourist visa, student visa, work visa. There are other statuses.
Andrew Weissmann: That could be years and years and years.
Mary McCord: Gosh, yes. Yes, yes, yes, yes. So could other technically temporary statuses, like temporary protected status, which is afforded to people from countries where there are natural disasters or other really, really significant events that make it hard for people to live there. So El Salvador after, you know, massive natural disasters, Haiti after massive national disaster. Sometimes it also has to do with the political situation. So we also have Venezuela. We also have Honduras, right?
Those people are often here for decades even. So many of those people might already have U.S. citizen children. But if the mother was either unlawfully here because she’s undocumented or lawfully here. I guess now we’re talking about the temporary. Lawfully here under temporary protected status, student visa, et cetera --
Andrew Weissmann: A work visa.
Mary McCord: A work visa --
Andrew Weissmann: Right.
Mary McCord: -- that you could keep getting updated. These are visas our government gives you. Your child will not be a U.S. citizen.
Andrew Weissmann: And if I’m hearing you, it’s looking at the mother, but then it’s also considering the status of the father.
Mary McCord: That’s right. Because if the father is a citizen then that means this carries on to the baby. Now that part in and of itself raises all kinds of questions. Like is that an equal protection violation because we’re treating mothers and fathers differently. And also what if the father is dead or unknown or something like this.
Right. Right.
Mary McCord: And it does say at the time of birth, so presumably dead means even if the father had been a U.S. citizen that that baby of a U.S. citizen father would not be a U.S. citizen. It also leaves completely unanswered, what about the people lawfully present because they have a pending asylum application, which means you get papers, you are lawfully here, you’re not unlawfully here, but it’s not been decided yet. Is that temporary or is that permanent? Because if your asylum application is granted, you will obviously be here permanently.
Andrew Weissmann: And at what point in time do you look at it? So let me just ask you to backtrack. This is what the Trump administration, through an executive order, has done. So that’s not a congressional statute. It’s an executive order from the president. But just to go back to the beginning, which is birthright citizenship.
Mary McCord: Yeah. What is it?
Andrew Weissmann: What’s the problem? Why is this a problem? And I know you, among many others, filed a lawsuit. What does the constitution provide?
Mary McCord: Sure.
Andrew Weissmann: And how did that come about?
Mary McCord: So, that’s one of the reasons this is so shocking, right? Because the 14th Amendment says explicitly that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. There is also a statute who says the same thing. And I will say that this principle of birthright citizenship comes from an ancient common law principle known as jus soli, meaning “right of the soil.” So even before the 14th Amendment, that principle of if you’re born here, you’re a citizen was what was generally applicable.
But the 14th Amendment was enacted, you know, to address terrible, terrible decision of the Supreme Court that had actually exempted African-Americans from that jus soli principle of you are a citizen of the place where you are born. A much reviled decision at this point in time, but nevertheless, that is one of the things and also post-Civil War that the 14th Amendment was designed to address and make permanent that there would never be such a blight as that decision, which was called Dred Scott, often known as the Dred Scott case. So ever since then, it’s been enshrined in our Constitution, which means it would require a constitutional amendment to revoke that right under the Constitution to birthright citizen.
So what we know now based on it was not in any rationale in the executive order, but of course, this was immediately challenged. There are multiple cases out there now, and I’m not even going to say the number because there keep being new cases filed. But some of the first and most significant ones were two different cases filed by groups of states who are saying we can challenge this because federal government, if you change the rules here so that a lot of babies born in our state are not citizens, that’s actually going to very much change what kind of benefits they’re eligible for federal benefits, and if they’re cut off from a lot of those healthcare, food and nutrition assistance, things like that, we’re going to have to pay for those. So we, the states, are injured.
Also talked about injury in other ways. Other cases, including the case that my organization brought on behalf of CASA, an immigrant rights group, ASAP, the Asylum Seeker Advocacy Program, and five pregnant mothers who are here on most of them, this temporary legal authority, one is a student visa holder, one is both a TPS holder and asylum applicant.
Andrew Weissmann: And what is a TPS holder?
Mary McCord: Temporary protected status, as we were discussing earlier.
Andrew Weissmann: Right. Yup.
Mary McCord: She’s from Venezuela, was a medical doctor there. She and her husband have been here for years. They own a home, et cetera.
Andrew Weissmann: Can I just say something? What’s the expression of like, pigs get fat, but hogs get slaughtered? I mean, it is outrageous enough to be challenging birthright citizenship and to be harkening back to the history of Dred Scott --
Mary McCord: That’s right.
Andrew Weissmann: -- and the severe racism of that decision. It’s not shocking that it’s doing that. But to not just do that, but then go and extend it to people here lawfully, who have children here when they are here lawfully, to me is just beyond the pale. But anyway, no one needs to know my outrage.
Mary McCord: Yeah.
Andrew Weissmann: Sorry, I’ve interrupted.
Mary McCord: No, no, no. And it’s people we’ve actually given, our government has given --
Andrew Weissmann: Yes.
Mary McCord: -- lawful status to. It might be temporary, but it’s lawful status.
Andrew Weissmann: And to your point about the language of the 14th Amendment, those people are here lawfully and they are subject to our laws.
Mary McCord: Yes.
Andrew Weissmann: They are subject to our jurisdiction. They have to abide by our laws and they can be punished and regulated by our laws by being here.
Mary McCord: And this is where it gets interesting, right? Because some people might be saying why would the government do something so blatantly unconstitutional? And their theory, which was not clear in the executive order, but it becomes clearer in the opposition to the case that was filed in the state of Washington by a group of four states, it got a hearing very quickly on the temporary restraining order. And in response to the motion for that temporary restraining order, we learned a little bit more about how the U.S. government intends to defend this.
Andrew Weissmann: And the temporary restraining order is the plaintiff saying, stop this, put it on hold.
Mary McCord: I need it to be enjoined, which is the legal word for --
Andrew Weissmann: Yes.
Mary McCord: -- this won’t go into effect. The issue with the temporary restraining order, though, is it’s only good for 14 days. And I’m going to come back to that because we then had a hearing and our case is on a fast track for the preliminary injunction hearing next week which will not have a similar 14-day restriction.
Andrew Weissmann: It’s longer, yes.
Mary McCord: It’s still preliminary, but it’s indefinite until the merits are decided. And I’ll come back to that. So we learned a little bit because the government had to file something, right?
Andrew Weissmann: Right.
Mary McCord: And it appears that their theory is that subject to the jurisdiction thereof does not really mean are you subject to our laws. Because everyone here is subject to our laws, right? Even if you’re a diplomat and you have diplomatic immunity from prosecution, it doesn’t mean flagrantly disobey our law. It just means you couldn’t be criminally prosecuted. We could kick you out and say, diplomat, you got to go home because you’re violating our laws, you just can’t be criminally prosecuted.
What the government seems to be saying is we read subject to the jurisdiction of the United States, meaning you don’t have allegiance to any other state. So if you’re here on temporary status, you’re a student visa holder, for example, you haven’t denounced your home country of birth, and so you still have allegiance to that country. I’m trying to make their argument for them --
Andrew Weissmann: I know.
Mary McCord: --but that they made and it’s just like I stumble on my words because it doesn’t actually make sense.
Andrew Weissmann: In my head, I’ve got like, because we’re both lawyers and litigators --
Mary McCord: Thought bubbles.
Andrew Weissmann: -- I’ve got a bunch of thought bubbles going, but that doesn’t make any sense for the following 73 reasons.
Mary McCord: That’s right.
Andrew Weissmann: But okay.
Mary McCord: That’s right.
Andrew Weissmann: Maybe start with this. What did the judge in Washington who was doing the TRO, what did he say? And that was, I think, a Reagan appointee.
Mary McCord: It’s true, it was. Let me just try one more way of describing their argument.
Andrew Weissmann: Okay.
Mary McCord: They basically are saying, the government is basically saying, these people are still subject to a foreign power, not just the U.S. therefore, they’re not subject to the jurisdiction of the United States.
Andrew Weissmann: Just like a dual citizen.
Mary McCord: Yes, just like dual citizens. And again, you know, this is why I think this is really, really a far out theory, because there are a lot of people this is going to apply to, well, their children in the United States, who would have had no idea ever and no reason to think that this would ever be applied to them. So the judge was not having any of this. In a very short four-page order, he frankly, scolded the government in many ways for even trying to defend this, what he called blatantly unconstitutional.
Andrew Weissmann: Yes. The judge there said, quote, “frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind,” unquote.
Mary McCord: And he granted this temporary restraining order that enjoins the enforcement of sort of some of the operative sections of the executive order.
Andrew Weissmann: By the way, one of his lines was, “where were the lawyers?”
Mary McCord: Yes, that’s why I said he was basically scolding the lawyers, not so much the Department of Justice, but like, who was advising the president that he could do this? And it’s interesting because I saw a clip of the president being asked about this one of the days between last week and today, and they’re all a blur to me. And it even seemed like he was not at all certain of its illegality. He sort of said something along the lines of, we’ll see, we’ll see what they do in the courts.
And you know, you’d think that if something was on strong legal footing, you might say something about that strong legal footing. Or even if you’re saying, my lawyers tell me it’s on very strong legal footing, but he didn’t even attempt to do that. It sort of felt like, hey, you take your chances with things. I’m going to do what I think I want the result to be and we’ll see what the court upholds and what the court doesn’t. So I want to talk about what this temporary restraining order means, because under the rules, temporary means temporary, because they’re briefed, but they’re briefed quickly.
Andrew Weissmann: Yeah.
Mary McCord: The arguments are as fast, so they’re really limited to 14 days. And the plaintiffs in these various cases and ours of course is not based on the harm to the states of having to provide benefits. Ours is based on we have actual pregnant mothers who’s been thrown into chaos, don’t know whether their babies are going to be citizens.
Andrew Weissmann: You have the direct harm. You have the direct harm.
Mary McCord: Direct harm.
Andrew Weissmann: Right.
Mary McCord: Some who are due pretty soon might, well, I should get to why they might hasten their birth. The government also did something interesting in its opposition to the brief in Washington. The government said, this doesn’t take effect until February 19th, so we don’t need a TRO. TRO is a temporary restraining order. And by February 19th, the government was referring to the provision of the executive order that said that by February 19th, agencies like the Social Security Administration, the Passport Office would stop providing documentation to babies born after that date, and until then they could get that type of documentation, presumably.
However, couple of things, Social Security Card doesn’t prove your citizenship anyway, so those things are a little bit unrelated, but they’re very necessary things. But secondly, even though the executive order said the agencies aren’t barred for 30 days from giving documentation, Section 1 of the executive order just simply says that the categories of babies that I talked about, right, when the person’s mother is unlawfully present and the father’s not a U.S. citizen or lawful permanent resident, or the person’s mother’s presence is lawful but temporary, those people, it says, are not privileged with citizenship. And that has started January 20th.
So when we came in and talked to our judge last Thursday about scheduling for the rest of the briefings and the government said, there’s no need to expedite this because on a really fast track, we want a couple of weeks to respond because this doesn’t go into effect until February 19th. We said, that’s not really true, Your Honor, because this provision, Section 1 just declares right now that these babies are not citizens. So there could be all kinds of consequences from that that we don’t even necessarily know about yet.
And also Section 3, about enforcement, Secretary of State, Attorney General, Homeland Security, et cetera, will take all appropriate measures to ensure that the policies of their departments and agencies are consistent with this order. That also doesn’t have a limitation on the start date. It says they have to issue guidance in 30 days, but it doesn’t say anything about when they start enforcing. The judge then did ask the government, what about Section 1 and Section 3? And the government just really wasn’t able to give an adequate response to that.
So she expedited briefing the government’s opposition to the motion for preliminary injunctions due Friday. The plaintiffs, that’s the people we represent, our reply is due Monday. So for those kids who think they want to be litigators, you lose a lot of weekends when you litigate. The hearing will be Wednesday and I expect she will rule very quickly. And that would all still put us within the 14 days we would have gotten on a temporary restraining order anyway, and it allows more fulsome briefing.
I will say the Washington case where the judge did enjoined it, he also set an expedited briefing schedule on the preliminary junction, and I think their hearing is going to be the day after ours, and other cases are going to be moving this way too. So more to come.
Andrew Weissmann: Yeah, there’s a lot more to come. As you mentioned, there’s a whole host of cases. We joked before we started that even while we’re talking, there may be more.
Mary McCord: Being filed, yeah.
Andrew Weissmann: Because there’s so many people who are harmed. But is your sense that this will almost inevitably end up before the Supreme Court?
Mary McCord: This is not a good answer because I’m going to say yes and no.
Andrew Weissmann: Welcome to being a lawyer.
Mary McCord: Yes. If every circuit that this gets to and the cases are being brought places where there’s a few different circuits that would be ruling, so we’re in Maryland, which if it goes up on appeal would be the Fourth Circuit. Washington, if it goes up on appeal would be the Ninth Circuit. There’s cases in Massachusetts and New Hampshire --
Andrew Weissmann: First Circuit.
Mary McCord: -- would be the First Circuit. Right? If all the circuits agree that this is unlawful, unconstitutional, violates the statute, then there really would be no reason for the Supreme Court to take that case when all the circuits are in agreement, there’s no circuit split. And even though one could say, oh, yes, but it’s an exceptionally important issue, the question is, it’s important to the people whose lives are in disarray. But like it’s a legal argument that’s never been questioned since the 14th Amendment. It’s in the text of the 14th Amendment. So, you know, if the circuits are all in agreement, the Supreme Court shouldn’t take it up. But do I think they will? I think there’s a decent chance if that’s what the Trump administration is asking for. But it’ll happen relatively quickly.
Andrew Weissmann: Yeah.
Mary McCord: Because so much is at stake here.
Andrew Weissmann: Yeah. So this is very much to be continued. And Mary, thank you very much for this sort of overview of sort of the 14th Amendment and its history and the common law before that and what the government’s arguing. But you know what, as this proceeds, we will do an episode to really do much more of a deep dive and there will be lots of opportunity. And also separating out the sort of arguments with respect to the two groups that are at issue here. But it’s also worth noting that although this executive order applies to these two groups, it’s not clear to me that the theory that the government is putting forward would necessarily be limited to that in the future.
In other words, they started here, but they may think this is like the best from a polling perspective or best from a legal perspective, but I’m not hearing from you sort of why this would be the end of what they’re seeking to do. So, this reminds me, just a quick comment before we take a break and go on to DOJ, but it reminds me a lot of Trump 1.0 where we had the so-called Muslim ban.
Mary McCord: Yes.
Andrew Weissmann: One difference there is that went through various iterations because it was so pam-handed at first and so not thought through. I mean, I remember the first time I read it, I thought, oh my God, there’s a Supreme Court case directly on point --
Mary McCord: That’s right.
Andrew Weissmann: -- with respect to certain categories that are covered where those people have rights that are being ignored. I remember Stephen Miller, I believe, had said, well, it doesn’t apply to anyone who has rights here. And I was like, really? Because Justice Kennedy read the decision directly contrary. But the point being that this is dissimilar in that it’s more thought through. It clearly was a planned thing going in.
But it is similar in the cavalier nature of instilling of fear and harm to multitudes, where if the law were not clear, there are lots of ways to do this in a much more benign test case way that doesn’t cause this kind of wholesale problem of you representing people who are pregnant. And that’s just one example of people who are now going to be living in fear of what exactly is going to happen to their children and whether it’s going to result in --
Mary McCord: They don’t know. Do they need to move? Do they need to leave the country?
Andrew Weissmann: Exactly.
Mary McCord: I alluded to earlier, some may make decisions about their pregnancy based on this representation by the government that it doesn’t go into effect until February 19th. Again, we quarrel with that, but you could see a mother who say is due a month after that thinking, I’m going to do what I can to have this baby early before February 19th. I mean, that’s the kind of decisions that people would actually be thinking about. And also the stress on pregnant mothers from this concern and worry, also has a real impact on health and the health of the unborn child as well as the mother.
So yes, the consequences are devastating. And it’s entirely possible that in response to court rulings, we could see just like with Muslim ban, subsequent iterations of the executive order that possibly look different. We will have to see. Should we take a break and come back and focus on DOJ?
Andrew Weissmann: There’s so much more to say about it, but let’s take a break, come back, and we’re going to go back to sort of our home base, which is the Department of Justice, main justice, and talk about things that are going on there.
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Mary McCord: Welcome back. So before we really get into some of these independence issues, as we left before the break, Andrew, you appropriately said we’re going to get into some of these main justice issues. But just to remind listeners, we were talking a lot about the executive order on birthright citizenship. But who had to go into court when I talked about the government defending it? Those were main justice lawyers. Same with the Muslim ban eight years ago, main justice lawyers. Everything, every time there’s a suit against the government, its main justice lawyers that will have to defend it or concede.
And so when we talked about the name change a few weeks ago, we talked about all roads in many ways lead to DOJ in terms of new executive orders and policies that might be challenged. So, in order to address those challenges, and at least in one way to try to ensure that people at the Department of Justice will always get in line and defend things and maybe not push back about what is defensible, what we’re starting to see is different moves within the department and elsewhere to kind of assure that type of loyalty. Tell us a little bit about that, Andrew.
Andrew Weissmann: Okay, so lots and lots of moves. So let me just tick some of those off and then we can discuss them. A lot of senior people in the department who are not at the political level, so they’re not in positions that are essentially at-will employees, these are career people. And a lot of them are what’s called senior executive service. That’s not just an honorific, but it’s a sign of just your expertise and how long you’ve been there, and you have certain protections about how you can be removed, which is not for cause. It’s so that you have a career staff, it’s an apolitical staff. Those people are being moved out of their field of expertise. Those are people that Mary, you and I know very well, and you count on to get your work done and to get --
Mary McCord: Right.
Andrew Weissmann: -- your policies implemented, and these are apolitical career people. We obviously saw big headlines about inspectors general. Those are independent bodies within almost every agency. And I think we’re up to 17 inspectors general who have just been fired, apparently now illegally because there wasn’t the requisite 30-day notice and I think that seems like the --
Mary McCord: To Congress, not to them, 30 days’ notice to Congress by statute.
Andrew Weissmann: Yup, exactly. And so the inspectors general have been removed. That may be sort of on hold because of this 30-day glitch. The one inspector general who has not yet I’m going to say or hasn’t been fired and I’d say not yet been fired is the Inspector General for the Department of Justice. But more on our speculation on that later, about why that may be the case. There also has been a hiring freeze, so that there isn’t sort of the department taking in people. And there also has been a purge in that people who are probationary employees, whether at the FBI or the rest of the department, summer people, summer intern programs which you and I teach and a lot of our students have applied and gotten offers from that, those have been rescinded.
There’s also something called the honors program, which is a way for young law students to get to the department. It’s an apolitical process. You tend to get the cream of the crop from around the country. Those have been rescinded.
Mary McCord: Law grads, right? Not students. These are people many coming out of clerkships, prestigious clerkships.
Andrew Weissmann: Yeah. Yes.
Mary McCord: And that honors program is a couple of year program that can then oftentimes lead to a permanent job. Yeah.
Andrew Weissmann: Exactly. So lots of steps to freeze things, deaccession people, move people out. The only time I can think of anything remotely like this was a huge scandal in the Bush II era, where there was an effort to remove certain new attorneys and to purge identified people in the honors program from coming in if they were perceived to be Democrats or liberals. And this was like a huge controversy --
Mary McCord: And scandal.
Andrew Weissmann: -- exactly, because it was so improper. So that’s something that’s happened. I think for you and me, Mary, the part that is so significant is, and I use this on air with you, which is I was trying to think of a really fancy, good word for this, but I couldn’t because unless you’re so enamored of this conspiracy theory that you think these people are really going to fight you and not do their job, the people that you have moved out are the people who are going to get your policy done.
Mary McCord: That’s right.
Andrew Weissmann: And people at the department, they understand that elections have consequences. And obviously, if you cannot defend, if you cannot fathom, personally, you can’t support something, you can always leave.
Mary McCord: You should leave.
Andrew Weissmann: It’s not an indentured servant. But otherwise, every four years there can be a change in policies, and very often they’re policies that you wouldn’t promote or think are wise. But you know what? You’re not the attorney general and you’re not the president. And if you can defend it, you do. And so it’s so counterproductive to the mission of the administration. And I know some listeners are going to say, well, isn’t that a good thing? Because that way it’s going to be harder for them to get their policies accomplished.
That is one way to look at it, but I think the way at least I look at it, I’m pretty sure Mary, you look at it, is there’s going to be an emergency. There’s going to be something that happens, and you want your best people.
Let’s just take national security. There will be more information coming up about a threat stream to the Mall of America. I’m just doing hypotheticals.
Mary McCord: Yes.
Andrew Weissmann: And you want your very best, most experienced people there. You don’t want to have shunted them off to back office where they’re not going to be using that expertise to protect the American people. And so, to me, this whole idea that expertise doesn’t matter, and it’s at the sake of the security of the United States.
Mary McCord: Yeah. And you and I, of course, can really speak to the importance of that in national security, but it’s important elsewhere as well. But in national security, like one of the people moved has been a deputy assistant attorney general career. for well more than 10 years has been in the National Security Division doing counter-terrorism and counter-intelligence since the division was created in 2006 and was doing that work even before the creation of the division back when it was part of the criminal division.
This is a person who knows every counter-terrorism case that the government has brought in modern history, every counter-intelligence case has relationships with the prosecutors in all of the U.S. attorney’s offices, with all of the FBI agents across all of their field offices and headquarters who investigate counterterrorism and counterintelligence cases, has relationships with all of the members of our intelligence community, whose work sometimes is used in criminal cases under a whole lot of protocols so that our national security secrets are protected, and sometimes, as we’ve discussed way back when the Mar-a-Lago case was first brought, sometimes our intelligence community will say, no, you can’t use that evidence because it would reveal sources of methods. So sorry, prosecutor, you’re just not going to be able to use that.
He’s got those relationships. He has relationships with foreign counterintelligence and counterterrorism counterparts among our allies. So you’re not only just getting rid of a person who has implemented policies, you’re getting rid of this entire institutional memory and connections and network around the entire national security apparatus that helps protect the United States. And even though I’m not an expert in HHS or Department of Education, you know, and other departments where this is happening, I’m sure it’s very similar, right? If you’re at HHS at a high level, you’ve got relationships with state public health people, you’ve got relationships with doctors and with foreign public health agencies, right? Built up over decades.
And so to take those people and move them and their only way to say it is because you just don’t want to get any pushback. And the person in national security I’m talking to, I’ve seen that person push back against Democrats and Republicans over different administrations. Doesn’t matter. It’s like if this person thinks what the administration wants to do is a bad idea for national security, he’s going to say so. He might get overruled, but he’s going to say so. And you need that. You need that regardless of whether it’s national security, health, whatever it is. And that’s what really, really worries me.
Andrew Weissmann: Yeah, and there’s such a through line in what we’re talking about from the inspectors general --
Mary McCord: Yes.
Andrew Weissmann: -- being dismissed and there are other examples. And there’s so much more that we need to get to --
Mary McCord: Yes.
Andrew Weissmann: -- because there’s policies that have also been put in place with respect to sanctuary cities and what’s going to be expected. But that seems like we’re going to have to come back to all of that.
Mary McCord: We’re going to have to do that next week or another week.
Andrew Weissmann: Exactly.
Mary McCord: Suffice to say though, one sentence on that --
Andrew Weissmann: Yeah.
Mary McCord: -- a whole lot of effort, renewed policy priority being put into mass deportation, scrutinizing immigration and cracking down on so-called sanctuary cities and we’ll talk a lot about that, and also halting the work of the Civil Rights Division, including agreements with cities after investigations into policing practices, agreements that were reached in order to institute reforms to prevent the use of excessive force, all put on hold. And last thing on that, already we’re hearing in a letter from the Acting Solicitor General to the U.S. Supreme Court, please put on hold some of the matters pending up there because we’re maybe going to have a change of position. That happens, not the first time, but like this is part of the flood.
Andrew Weissmann: So, yeah, part of the flood is a good term. So this week, we’re both keeping our eye on confirmation hearings as we talked about Kash Patel for the head of the FBI, Tulsi Gabbard for the head of the whole intelligence community. There have been lots of stories in the press about their nominations, their expertise, or lack thereof. And we’ll do more on that as it progresses. I’m going to give a quick shout out to, I know a lot of people are very disappointed with “The New York Times” in their coverage. But I have to say their article on Kash Patel from a couple days ago, Charlie Savage, who was a superb reporter, was on the byline. I would commend that to folks if you want a quick overview of things that he has said that are inconsistent with each other and problematic.
Also, there is going to be an upcoming hearing for Robert Kennedy Jr. and a little bit outside of our direct field, but certainly in terms of lives saved, is of equal, if not greater, importance than the work that Tulsi Gabbard or Kash Patel would be called on to do if they were confirmed in terms of science and having just, as one example, vaccines --
Mary McCord: Yes.
Andrew Weissmann: -- in which I can’t believe I’m even saying this.
Mary McCord: I know.
Andrew Weissmann: Mary, I think I do know that I come from this very long medical background in my family. And so they’re just appalled at the idea of the people say the 20th century was this century of the sort of significance of science --
Mary McCord: Yes.
Andrew Weissmann: -- and just how much the role of medicine completely changed our lives and the eradication of diseases like polio. So that’s going to be another nomination to keep an eye out for. But, again, I think we have to do like cut.
Mary McCord: Yes, yes.
Andrew Weissmann: You know, the huff.
Mary McCord: Catch your breath, yes. Because we could just keep going and going and going.
Andrew Weissmann: Exactly. And I am going to apologize to you because at times it’s really hard not to just vent at some of the things that are going on --
Mary McCord: Same.
Andrew Weissmann: -- because, one, because we’re just citizens and humans, but also because of our background and seeing just bad policy for the country, where it’s very hard to see this as anything other than sort of denigration rule of law. And as I said, I just started by saying, you know, I’m going to end and then I continued. Okay.
Mary McCord: It’s going to be a theme, I’m afraid.
Andrew Weissmann: Exactly.
Mary McCord: You got to laugh sometimes because you can’t laugh and cry at the same time. I don’t know, maybe you can actually.
Andrew Weissmann: I think you can.
Mary McCord: We’re going to be doing some laugh crying throughout the podcast.
Andrew Weissmann: So thank you very much for listening, everybody. And you can always subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free, as well as subscriber only bonus content like our recent premium episode about Mary’s testimony before the Senate Judiciary Committee around the necessity of independence at the Department of Justice.
Mary McCord: A whole little bit like that’s falling on deaf ears, but okay. Yes, I shouldn’t say that because the Senate judiciary didn’t have any control over these executive orders or these DOJ policies. Now they certainly have oversight responsibilities, so if they want to hear a little bit more about some of these things, they have the power to do that. So also, please remember everyone to send us a question. You can leave us a voicemail at 917-342-2934 or you can email us at mainjusticequestions@nbcuni.com.
This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Katie Lau and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer of MSNBC Audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcasts and follow the series.