Last Friday, President Trump spoke before a gathering at the Department of Justice to lay out what was seen largely as a grievance fest, singling out individuals and media organizations he perceives as his enemies. Main Justice hosts Andrew Weissmann and Mary McCord lay plain the unorthodox nature of a speech like this, especially before a department that is meant to maintain independence from the executive branch. But that was just the start of a wild weekend, after Trump invoked the Alien Enemies Act to deport hundreds of Venezuelan migrants, just as a court order blocking their removal was filed. So, Andrew and Mary tackle the latest developments in several buckets before breaking down the Supreme Court’s consideration of the request by the president to lift the pause on his birthright citizenship executive action.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hello and welcome to “Main Justice.” It is Tuesday morning, March 18th. I’m Andrew Weissmann. I’m exhausted. I can’t believe how much has been going on. Thank God. I am here with my wonderful co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew, and belated happy birthday to you.
Andrew Weissmann: Thank you so much. I --
Mary McCord: You’re actually wearing green this morning, as I can see. Did you wear green yesterday on your birthday?
Andrew Weissmann: I did. I wore suggestion of green for St. Patrick’s Day. And as I told you just before we started, I was on with Nicolle Wallace yesterday and she surprised me at the end of the 4:00 hour by wishing me a happy birthday and giving me “Deadline: White House” swag, which I’ll have to show you. It’s really great.
Mary McCord: Yes. Cool.
Andrew Weissmann: By the way, I think that ends the fun and interesting --
Mary McCord: Yes, that does.
Andrew Weissmann: -- part of the show.
Mary McCord: Right.
Andrew Weissmann: So, I mean, how’s that for an anti-teaser?
Mary McCord: Yeah, exactly.
Andrew Weissmann: Our producer is going to be like, really? So, the reason I started by saying how exhausted I am is we are discussing what to cover and all of the things that are happening. This morning, you and I were trading documents to read and news to read, but we have synthesized it. We think we have a good show for you all. Mary, what is on our agenda?
Mary McCord: Well, because this is a podcast called “Main Justice,” notwithstanding the importance of the news over the weekend. Equally important in many ways was what happened on Friday, which was the president of the United States came to the Great Hall in the Department of Justice and addressed a crowd there. And it’s a speech we want to talk about because suffice to say, I’ve sat in the Great Hall for many speeches over my career. I’ve never seen anything quite like what happened on Friday. So we will start with that. Then we will spend some time on what happened over the weekend, which I would say there’s sort of two pieces of that.
What happened? There’s the legal issues surrounding whether the president can appropriately rely on the Alien Enemies Act to deport alleged members of what has now been designated a foreign terrorist organization, Tren de Aragua, in Venezuela. That’s one legal issue.
Andrew Weissmann: Which for our purposes, that’s TDA (inaudible).
Mary McCord: Yes. Just say TDA. Yes.
Andrew Weissmann: Okay.
Mary McCord: Thank you. So there’s that whole, you know, legal issue. And then there’s the issue of, did the government fail to comply with the court’s temporary restraining order? Listeners by now know, TRO versus preliminary injunction. They’re both injunctions. They’re both bars on action or can be bars on action. And this has really elevated into this question of, did the government willfully not comply or does it have legal arguments about why it was in compliance? And so I think these are two pieces which we’ll discuss.
Andrew Weissmann: Yep.
Mary McCord: And then we’ll come around and talk about an issue that is in the Supreme Court right now, and that is the question of the scope of the injunctions in three of the birthright citizenship cases. What’s in the Supreme Court is a motion to stay those injunctions, but not like the full injunction just to restrict or limit how many people it affects while the litigation is going on and we’ll talk about that. So there’s a whole lot on our dance card, but let’s just jump in and I will turn it back to you. I have so many pieces highlighted on the president’s speech, but what’s your initial reaction to Friday’s speech? And maybe we should also start with, like, what is the Great Hall and why is it important to those of us who’ve spent so much time in the department?
Andrew Weissmann: So there’s nothing wrong with the president and the executive branch setting policy and saying either at the Great Hall, which is the main, main hall. It’s quite grandiose. It’s one of two sort of big conference areas in the Department of Justice. And typically, the Attorney General will meet and give a big hello when they first start, when people leave. There are all sorts of ceremonies that happen there. And it’s a place for people to feel camaraderie and for the Attorney General to set out her policies and her vision and a lot of times an attaboy. So that’s sort of a level set in terms of what could be done and sort of what has been done.
One other thing on a level setting is that typically in those events, anybody who’s in the department can be there. It’s not by invitation. And the reason I raise that is that I was on air with the pardon attorney who had been fired, as she said, for opposing giving guns back to Mel Gibson, and had been warned that she should say yes, because it was a friend of the president’s. And then she was fired. She said that it was by invitation only. This was not open to career people.
I can’t vouch for it, but that was her views that this is a select group of supporters, which is very unusual in my experience that you have something like that. So to me, this is just a continuation of the fact that we do not have the norm post-Watergate of a separation between the White House and the Department of Justice.
Again, not with respect to policy, but we don’t have it with respect to who should be prosecuted and who shouldn’t be prosecuted. We have talked about how the president said, I want you to dismiss the January 6 cases that are pending. That is a directive from the White House.
Mary McCord: Not I want you to. You will.
Andrew Weissmann: Yes, I’m sorry.
Mary McCord: Right? Yeah.
Andrew Weissmann: You’re absolutely right. And then recently, he has said that the pardons given by his predecessor, President Biden, are not valid because they were signed by autopen and/or his mental state or whatever --
Mary McCord: Yeah.
Andrew Weissmann: -- reason, but it’s --
Mary McCord: Allegedly signed by autopen. I don’t know if that’s actually confirmed.
Andrew Weissmann: All of it --
Mary McCord: And so what if it was?
Andrew Weissmann: Exactly. It’s all, you know --
Mary McCord: Yes.
Andrew Weissmann: -- what’s the correct legal term? Poppycock?
Mary McCord: Yeah.
Andrew Weissmann: But the point is not that that’s just against the rule of law. The issue is that the president then said, and thus, they need to be investigated. And again, I just want to get clear, and I think probably a lot of our listeners are like, why are you harping on this? It’s because I want to make sure people don’t forget and we don’t normalize the lack of this norm and that we are in a completely different world. The world that we are in with not just President Biden, but you and I have served under numerous presidents, Republican and Democratic. I always tell the story I worked on the Enron case and it was under President Bush. There was not a single moment where I felt like there was any interference politically in what we could do or should do. It was a third rail.
So I just want to make sure people know this is not a political issue. This is a sense of what is appropriate in terms of adherence to democracy and the rule of law. So that was my big picture takeaway in terms of what was happening.
Mary McCord: Yeah. And obviously, a lot of my reaction is not surprisingly very similar to yours.
Andrew Weissmann: Violent agreement.
Mary McCord: That’s right. I mean, I actually have been in the Great Hall when the president came once, and it was actually when Obama came at the farewell party for Eric Holder, who had been the attorney general for six years. And it was actually quite an amazing event because Aretha Franklin also made an appearance. And --
Andrew Weissmann: Wow.
Mary McCord: -- that is something I will never forget. So sometimes it’s sort of a celebratory tribute to somebody, right, that might cause a president to come. Sometimes it might be a major announcement of a new policy, or at least I think that would be an appropriate reason to come. But I think one reason it is so odd for a president to come to the Department of Justice is because of constantly wanting to maintain this independence between the White House and the Department of Justice. Now, it’s not like the Attorney General does not regularly go to the White House for meetings. Certainly, the attorney general does along with all of the president’s cabinet, but those are meetings to talk about policy, make decisions on policy, etcetera, et cetera.
But it’s a different thing for the president to come to the department and address what would normally be Department of Justice attorneys and staff, as opposed to sort of invited guests from all over. Now mind you, there are often reporters and journalists who are invited to events even when it’s attorneys and staff. There may be possibly some other partners in law enforcement for example, or maybe from other government agencies, but rarely is it something that is all sort of political invited guests. At any rate, one reason you don’t see it very often is because this idea that you don’t want it to appear that the president is directing the investigative or prosecutorial decisions of the Department of Justice. So I think appropriately there’s been a distance there.
And so what was remarkable to me was that this was completely throwing all of that to the wind. It was the kind of speech you would hear at one of Trump’s rallies during the campaign, a blatantly political speech that was also filled with a retribution, even the attorney general, Pam Bondi in introducing him, criticized pointedly the previous administration and talked about the need to fight for Trump and for the country. Trump first, right? Not the country. And again, attorneys at the Department of Justice, they represent the United States, they don’t represent the president, and they work to preserve constitutional rights.
But just to highlight a few of the statements that do come back, it was political in many, many different ways, but I think what was also alarming is the real direction to go after political enemies. And this is not new, right? We’ve been talking about it. But it’s one thing to say it in a rally during a campaign. It’s another thing to say it in statements to reporters or in tweets. None of that do I think is right. None of that do I think has any evidentiary basis. But to come actually to the Department of Justice and say it is really a whole another step. And it began with him referring to the lies and hacks and radicalized people within the ranks of the American government who had weaponized the vast power of our intelligence and law enforcement to try to thwart the will of the people.
He talked about our predecessors turned this Department of Justice into the department of injustice. But I stand before you today to declare that those days are over and they’re never going to come back. So, now, as the chief law enforcement officer in our country, I will insist upon and demand full and complete accountability for the wrongs and abuses that have occurred. He went on to say, we will expel the rogue actors and corrupt forces from our government. We will expose and very much expose their egregious crimes and severe misconduct of which was this doesn’t really make sense. This transcription might not be completely perfect, but of which levels you’ve never seen anything like it. It’s going to be legendary.
And that’s just a little snippet of this. He directed things. I want to tell things directly to Todd Blanche, who has now been confirmed as a deputy attorney general suggesting this is your job, Todd Blanche and everyone else there in the Department of Justice. He attacked people by name. He attacked journalists, said that what journalists are doing has to be illegal. They’re trying to influence judges. It’s really changing the law and it just cannot be legal. So this is his directive to those who remain in the department. And as you just indicated, the next step after that was to declare that the pardons, not that this is where I think it all comes down to because the Biden pardons were pretty limited. It was the House Select Committees members and staff and law enforcement agents who testified at the hearing. So pretty limited to begin with.
Andrew Weissmann: And certain other individuals. Yeah.
Mary McCord: That’s right. And then, yes, there were separate pardons of other individuals, including members of Joe Biden’s family. But to suggest that all of these pardons are invalid because they were signed by autopen, and really the president, both on Friday and then over the weekend, also suggested that there were staff members who were just using autopen to sign things for President Biden because in Trump’s words, he was not of a mental capacity to be able to make decisions. I mean, there’s no support for that, of course, and no support that rogue employees were drafting things and signing them by autopen. But it’s similar to this, no support that employees of the Department of Justice under the previous administration and many administrations before that were doing egregious crimes. So it’s rhetoric, but it’s dangerous rhetoric. And it’s just all the more alarming because it was right there in the Department of Justice.
Andrew Weissmann: It does make more important something that I keep on trying to focus on, which is the media covers adjectives and adverbs and Donald Trump says things, but to your point, what’s the support for it? So saying that this is what the prior administration did or using childish invective about people. That doesn’t make it true --
Mary McCord: That’s right.
Andrew Weissmann: -- and then it’s also not particularly newsworthy. The issue is, tell me what the facts are. What is it that lets you say that? If you are saying that the January 6 cases were improper, what is it? What are the facts --
Mary McCord: Yeah.
Andrew Weissmann: -- that we do to say that? What is the evidence for that? And that issue is one where it made sense to me that the speech was not given to career people at the department, because it was so antithetical to all of that training, regardless of party.
Mary McCord: That’s right.
Andrew Weissmann: Mary, before we leave this, this seems like a good place to talk about what the president has done through executive orders and attacking three law firms so far, Covington and Burling, Perkins Coie, and Paul Weiss, which are three major law firms in this country. Mary, what’s he been doing? And I know we have a judicial decision on the Perkins Coie piece.
Mary McCord: Right. And we did talk last week about the attacks on the first two of those law firms doing things, like really blacklisting. That’s what it was. Right? And he’s now add a third to the mix. That is Paul Weiss. And I think it’s pretty extraordinary the way the executive order regarding Paul Weiss, another blacklisting order similar to the one against Perkins Coie where security clearance are stripped, where any type of government contracts are to be terminated upon review, where there’s going to be limitations on access to federal government buildings, limitation on access to even having discussions with federal government employees, which would mean if a law firm does government contracts work, does federal regulatory work, does litigation in federal courts, all of those things could mean essentially they cannot continue to do their job and that’s why the opinion of Judge Howell last week after a hearing when Perkins Coie challenged that, that’s why that opinion is so important, and we’re going to talk about that in a minute.
After that opinion, after that hearing in which she issued her opinion from the bench, even after that, the president attacked another law firm. And the opening line is so extraordinary to me. Global law firms have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles. He even attacks global law firms that do pro bono work, ostensibly, he says, for the public good, but potentially depriving those who cannot otherwise afford the benefit of top legal talent, the access to justice deserved by all.
Pro bono work is in the finest tradition of the legal profession. Pro bono work is frankly also what my organization does. So, I mean, that’s quite something for me to say that, but even at law firms that usually take paid clients, they will engage in pro bono work that might be representing criminal defendants who can’t afford counsel. It might be representing people who’ve suffered various different civil rights violations who can’t afford counsel. It is one of the greatest traditions yet that’s being attacked by this president and it’s consistent with sort of the attacks he was previewing in his speech.
But one of these has been challenged so far. That is the Perkins Coie order. Lawyers from Williams and Connolly very quickly filed litigation on behalf of Perkins Coie, and Judge Beryl Howell in the D.C. District Court here had a hearing, and she ruled from the bench, and she issued that temporary restraining order. She issued it on three constitutional grounds, First Amendment grounds that it was in retaliation for speech and expression and who the law firm represented. It was also viewpoint discrimination also because of the viewpoints of those that the law firm represented.
She found that there were due process violations because there is a property interest in having contractual relationships with the law firm’s clients and also liberty interests in the reputation of the lawyers and the law firm. Their right to petition the government for redress of grievances under the constitution. Their right to engage in their chosen profession. And she found six amendments violations on behalf of their clients who had a right to counsel of their choice, and that counsel was largely being deprived of them because if you restrict the law firm’s work so much that they cannot effectively represent clients, then they are not able to be counsel of choice. It was an extraordinary ruling because it was an extraordinary executive order.
And I just went to end this segment with a quote from her opinion. She said, “Without issuance of a TRO, lawyers around the country may be in fear of retribution for litigating against or advancing cases for clients with viewpoints disfavored by the Trump administration. Such a circumstance threatens the very foundations of our legal system, which operates on a basis that an informed independent judiciary presumes an informed independent bar. Our justice system is based on the fundamental belief that justice works best when all parties have zealous advocates, when all sides have vigorous representation and can present for the court to hear powerful statements on both sides of the question.”
There’s so many more quotable parts of that that we don’t have time for. But this is, again, a real attack on the entire system of justice because we now have also attacks on the judges themselves.
Andrew Weissmann: Yeah. I mean, as I said last week, this is one where from the Trump administration, it may be viewed as sort of a win-win, which is they issue the executive order, it gets struck down, but the chilling effect is there. And that’s it’s hard to see that that wasn’t the intent because if you are a lawyer and you’re looking at this, you sort of know in advance, this is what’s going to happen that it’s going to get struck down, but it still has sort of that political effect. And it fits exactly with what we’re talking about the undermining of the rule of law, which is probably a perfect segue to the litigation about the Alien Enemies Act.
So when we come back, we’ll tee that up and I have a way of, I think, of framing that discussion to get us through this, the various buckets. But why don’t we take a break, and we’ll continue with this, but in a very explosive context that is ongoing as we speak.
Mary McCord: That sounds good.
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Andrew Weissmann: Welcome back. So, Mary, let me give you maybe a way that I’ve been thinking about this, the way I sort of frame it up into different buckets and as a sort of good table setter in terms of mindset to the Alien Enemies Act litigation over the weekend. And I love the way you separate it out. There’s sort of the weeds, the legal issue of what is happening that’s super concerning, but also concerning is this issue of whether there was contempt. Can I just give you a slight framing of how I look at contempt? Because there is what the government is saying in court at the trial level to Jeb Boasberg, the chief judge of the D.C. Court and to the Court of Appeals because there’s appellate litigation going on too.
There’s what’s being said in court and there’s what the administration up to and including the president are saying publicly, but outside of court, because I think there’s a fissure. There’s a slight difference between that and it goes to sort of this idea of whether we’re in a constitutional crisis, looking at how that language is being separated. When you lose the “Wall Street Journal” editorial page, you know, you got a problem.
Mary McCord: Yep.
Andrew Weissmann: Today, they are saying it’s fine to disagree with a judge, you can appeal the judge, you can tell the public that you disagree with the judge, that he overstepped his bounds, but you can’t just defy the order. You have to comply with it and that we have a structure here. And if you say that the prior administration was against the law and was violating the law, you can’t recapitulate that yourself. You can’t imitate it. You have to exemplify what it is that you say should be done. All of that seems like basic civics that you learn in elementary school and high school. But let’s talk about and tease out sort of what’s going on and separate those into different buckets.
Mary McCord: All right. So let’s start with the substance then pursuant to that framing point.
Andrew Weissmann: The Weissmann bucketizing.
Mary McCord: That’s right. There we go. So again, we’re talking about the Alien Enemies Act. This was an act enacted on July 6, my birthday, but not the year I was born, 1798. And it was really about giving the president authority, frankly, over sort of like spies and others who might be in this country when we are at war. It is a wartime authority. So it says, whenever there shall be a declared war between The United States and any foreign nation or government, pause there. There’s no declared war right now between the United States and any foreign nation or government. And the government is actually not is not relying on that --
Andrew Weissmann: Right.
Mary McCord: -- first sentence I read.
Andrew Weissmann: Yep. So it’s not a declared war issue, right.
Mary McCord: Right.
Andrew Weissmann: But it’s useful as context because the idea was when you have a declared war, which I think it’s been only invoked that way --
Mary McCord: Yep. Only three times.
Andrew Weissmann: Right.
Mary McCord: War of 1812m World I, World War II. So each time it’s ever been invoked, yes, we have had a declared war. Declared by who, Andrew?
Andrew Weissmann: That would be Congress.
Mary McCord: Congress --
Andrew Weissmann: Yeah.
Mary McCord: -- who has the power to declare war, not the president.
Andrew Weissmann: Right.
Mary McCord: Okay. So we’ll put that one aside.
Andrew Weissmann: By the way, just to be clear, that’s in the constitution.
Mary McCord: Yeah. We’re not making it up.
Andrew Weissmann: Like explicitly, right?
Mary McCord: That’s right. So, okay, that’s this first half of the first sentence, but that’s not what’s at issue here. What’s issue is the or sentence, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government. Okay, so these are the two circumstances what can apply. Declared war, we don’t have that. Or an invasion or predatory incursion by any foreign nation or government. In that case, all native citizens, denizens, or subjects of the hostile nation or government being males at the age of 14 years and upwards, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
Andrew Weissmann: So Mary, what’s the government’s argument for how the TDA gang, how is it that they get to say that that satisfies either an invasion or predatory incursion, and that this is a foreign nation or government when we’re talking about a gang? So what’s the government’s argument for that? And then finally, isn’t there some ability for if you are an alleged gang member, and let’s say you’ve been in the country, the United States for a while, don’t you have an ability to have a hearing?
And let’s just take my hypothetical of you have a hundred people who are scooped up, and let’s say the government gets five of those wrong, like they just made a mistake and they’ve scooped up totally innocent people who are not gang members. How do they get a hearing? Normally, you and I would be thinking, don’t they have due process rights to have a hearing to say I’m not part of that group? So to me, those seem like the (inaudible) buckets. How do they --
Mary McCord: That’s a compound question --
Andrew Weissmann: Yes, exactly.
Mary McCord: -- Andrew, but I’m going to break it up --
Andrew Weissmann: I’m a lawyer.
Mary McCord: Yes, it’s right.
Andrew Weissmann: I’m a lawyer. So that’s --
Mary McCord: Objection. Compound question.
Andrew Weissmann: Okay, overruled.
Mary McCord: The government’s argument is the TDA essentially is part of a hybrid criminal state, and this is according to the president in his executive order. It’s actually a proclamation invoking the Alien Enemies Act. He says that TDA is part of a hybrid criminal state that is perpetrating this invasion and of a predatory incursion into United States. He says it also operates as a de facto government in certain areas of Venezuela. And that essentially it’s so intertwined with the Maduro government, which is a government not recognized by The United States, that essentially these are one in the same. Therefore, this TDA is a hybrid criminal state. I can hardly get the words out because it is somewhat nonsensical. I mean, TDA is not a state. It’s just not.
It’s not a nation, just like ISIS, frankly, was not a state or a nation, even though it had actually taken territory in Syria and Iraq at the time that it was in its height in 2014, 2015. It is a non-state actor. It is now TDA, a designated foreign terrorist organization, yes. But it’s a real stretch to say it is a foreign nation or government. And remember, that’s where Alien Enemies Act applies.
Andrew Weissmann: And what about the issue of an invasion or predatory incursion?
Mary McCord: Right. Also quite a stretch because invasion historically has a military based definition of an invasion of a hostile enemy force, a nation state enemy force coming in to take territory, right, and things like that. The government though takes a broader view of the word invasion. He says, oh, yes, although the word invasion, of course, includes a military entry and occupation of a country, the accepted definition is far broader. And invasion is, quote, “an intrusion or unwelcome incursion of some kind, especially the hostile or forcible encroachment on another’s rights or the arrival somewhere of people or things who are not wanted there.”
So that’s really what they’re basing it on. The arrival of people or things, people in this case, TDA members or alleged TDA members who are not wanted there. And that’s their basis for saying, this is within the president’s power under the Alien Enemies Act to detain and remove from the United States these alleged members of Tren de Aragua. Now you ask another question. I’m going to kick this one back to you because I’ve been talking for a very long time, which is, don’t you normally have some proceedings under the Immigration and Naturalization Act before you are just put on a plane and deported?
Isn’t there a responsibility, even assuming for a minute that the Alien Enemies Act would apply to the circumstance? Don’t you have some opportunity to say, hey, I’m not actually a member of TDA? I don’t fall within this. The president did not issue a proclamation that all Venezuelans here in the United States were part of a hostile nation that could be expelled under the Alien Enemies Act, just males, 14 years or older who are alleged members of TDA.
Andrew Weissmann: So the government has very much stressed that the president makes these determinations and they cannot be second guessed by the court. And in fact, has gone so far to say that they’re powerless under various doctrines such as the political question doctrine, that the court should not be reviewing this issue under the statute of determinations made about what’s a foreign government, about whether it’s an incursion, et cetera. By the way, I can’t help but think about the litigation, which feels like a million years ago on whether the president was qualified to run for office if he engaged in an insurrection or gave comfort to an insurrection.
And the Supreme Court was not receptive to that and had all sorts of requirements about what it would mean to be an insurrection. And it was not, oh, the government just decides whatever it thinks an insurrection is and once the president determines that the courts can’t weigh in on it. In fact, they had a lot of dicta about that particular issue. So there’s definitely no consistent through line. But it’s basically saying the court shouldn’t have any role. And that’s one of the key issues now in a re-argument to Judge Boasberg, and it certainly will be an issue on appeal.
But to your point, which was throwing back in my face, the issue of shouldn’t there be a due process, right, to be able to argue that you’re not within that group? I was very nerdy today. And one of the things that the government relied on in its brief to Judge Boasberg is a D.C. Circuit case that is a D.C. appellate decision. So the intermediate court, they say, judge, this is a case that’s binding on you because it’s an appellate court decision. It’s called Citizens Protective League versus Clark. It was decided in 1946. It’s coming up just at the end of World War II.
Mary McCord: That’s right.
Andrew Weissmann: And there, the court is dealing with a declared war, to be clear, against Germany. And the issue of what happens with Germans in this country and whether they can be removed under the Alien Enemies Act. And notably to my question and your question back to me, which are the same.
Mary McCord: Yeah.
Andrew Weissmann: The court says the attorney general concedes that these people would be entitled to that hearing to show that they are not, in fact, within the group. And the court goes on to say, but that’s not an issue here because the plaintiffs who are bringing this concede that they are.
Mary McCord: That’s right.
Andrew Weissmann: That there’s no issue because they’ve actually done it, but they otherwise would be entitled. And the government itself concedes, and the court says it has jurisdiction to decide that issue.
Mary McCord: That’s right.
Andrew Weissmann: And so if you’re Judge Boasberg and you’re looking at this and you have the government saying, this case is binding on you, well--
Mary McCord: You better read the case.
Andrew Weissmann: Yeah, exactly. And --
Mary McCord: Which of course the judge will because it was about a different issue, right? It was about whether the war was over.
Andrew Weissmann: Exactly. And that issue of if you want to know why, one of the reasons that Judge Boasberg said there’s a 14-day stay now so that we can sort of flesh this out. This is one of the issues. Before you remove people, they may have what’s called a Matthews v Eldridge, famous Supreme Court case about due process rights, that they have a right at the very least, not just the issues you raise, Mary, which is huge.
Mary McCord: Right. Invasion, foreign nation, yeah.
Andrew Weissmann: Even if you meet all of that, are you within the group? And so that is something that he is bound actually by the decision that they say he’s bound by. And so none of the people have been determined to be that. And I’m just going to jump quickly to one point. When Jeb Boasberg issued his decision, Pam Bondi the next day was on air, and she criticized the judge in terms of saying she disagrees, that we’re going to appeal, that he stepped over. That’s fine. She’s entitled to do that. That’s absolutely fair game.
But she starts by saying that he is supporting terrorists over the safety of American people. That is a political statement. That is not what you expect from the attorney general, and it is also so obviously not what the legal system’s about. When a judge says that a defendant is entitled to present certain evidence or that certain evidence can’t come in, is that because the judge is saying I agree with the crime the defendant is alleged to have done? I mean, it is so anathema to the rule of law to suggest that the judge is siding and supporting terrorism. He’s supporting the rule of law.
Mary McCord: That’s right.
Andrew Weissmann: I should say, on the same token, it really bothers me because it’s the attorney general, but the president of the United States just this morning put out a tweet saying that Jeb Boasberg should be impeached. And that kind of language is to undermine, is to go back to the speech about undermining the media, undermining judiciary. It’s so that there is no more check and balance on our system.
Mary McCord: That’s right. I think that it’s a dangerous statement to say, but it also completely misrepresents what a court of law is doing, what a court is looking at, what is the statutory authority for what is happening, and is it authorized by that statutory authority and what rights to the plaintiffs have under the applicable statutory and constitutional authority? I mean, that’s what judges do. That’s what their job is.
Andrew Weissmann: So in a very, very rare comment from the Chief Justice of the United States, John Roberts, apparently, although he doesn’t reference it, apparently, in response to Donald Trump tweeting about calling for the impeachment of judges and particularly Judge Boasberg, the Chief Justice has said the following in a statement, and I’m going to quote it. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” unquote.
So that’s obviously quite unusual statement and it doesn’t get into a total tit for tat. But it is really important, obviously, to sort of counter this attack on the judiciary. And that clearly is what motivated this. We’ll see what the response is, if any, from Donald Trump or anyone else in the executive branch.
Mary McCord: And I also want to be clear. There is no indication anywhere in anything that Judge Boasberg has said so far, or I think you and I would also agree. Members of this criminal gang are engaged in activities that are dangerous and unlawful under U.S. law. They’ve now been designated as a foreign terrorist organization. I haven’t probed short of behind that, that requires the criteria of, is it a foreign organization? Does it engage in terrorism or have the capability and intent to engage in acts of terrorism as defined under U.S. law? And is it a threat to U.S. nationals or U.S. national interests?
Put aside whether that designation was appropriately based or not, I don’t really have all the facts and details to know. People who are members of any type of violent criminal gang, that’s a real problem and it’s a problem for public safety here and national security. So I don’t want to discount that and both of us come from --
Andrew Weissmann: Of course.
Mary McCord: -- national security and public safety, but that is a different question than is the law being followed? Is the Alien Enemies Act an appropriate authority for the action being taken here? And are these people who are being put on planes and flown out of this country to El Salvador to be put in mass detention centers in El Salvador, a country that’s not exactly known for the rights and civil rights and human rights that it affords to its detainees, are those people even getting the proper due process that they required? These are the legal issues.
Andrew Weissmann: It’s so crazy because this is what we did for a living. I mean, we were prosecutors for umpteen years, and you don’t sit there and say, well, the person did a lot of bad things, so we’re not going to have a trial.
Mary McCord: Right, exactly.
Andrew Weissmann: Now going back to Judge Howell when she was ruling in favor of Perkins Coie, she says, it may be amusing in Alice in Wonderland to read that the queen said off with their heads, trial to follow --
Mary McCord: Right.
Andrew Weissmann: -- but that’s not the way it works in the real world and it’s scary --
Mary McCord: That’s right.
Andrew Weissmann: -- to do that. And so, you just don’t ever think about that and you wouldn’t phrase it that way when you’re in the government. The ideas you might think, of course, the person’s done something terrible. It’s my obligation to prove it beyond a reasonable doubt. But they are entitled to all of the rights of a defendant.
Mary McCord: That’s right. You don’t put them in jail, throw away the key and say, that’s it.
Andrew Weissmann: Right.
Mary McCord: So this is a good segue to --
Andrew Weissmann: Yeah.
Mary McCord: -- the other piece of this, which is what did the judge order over the weekend? Did the government comply? Right before we go, I’ll say, this temporary restraining order that was issued, that is on appeal, that’s being briefed this week. And also pursuant to even Judge Boasberg’s order, the government filed yesterday a motion to vacate his temporary restraining order. The plaintiffs have to file a response tomorrow. He’ll take that up. So this is happening now. Further litigation over these legal issues is happening in both the district court and certain things on appeal to the court of appeals, which we will be able to follow-up on next week. But we will take a break and move on to the issue about compliance with court orders. Yes.
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Andrew Weissmann: So Mary, let’s talk about this idea of compliance with a court order. Before we talk about what’s been said in court and what we know about the facts, it is useful to note, and we have a clip, that people like Tom Homan are basically saying, we don’t care what the judges say, we’re going forward. And I think it’s useful to focus on that because where you sort of talk about this constitutional crisis, whether you will follow a court order. Outside of court, it appears that’s where we are because you have this clip.
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Tom Homan: Every day, the men and women of ICE are going to be in the neighborhoods of this nation, arresting criminal, illegal, alien, public safety threats, and national security threats. Laws are not going to stop us. We’re not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming.
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Andrew Weissmann: That’s what you’re hearing outside of court. Inside of court, that has not yet happened. No one has said that. Here’s the TikTok of which, by the way, anyone who’s younger who’s listening to this is going, what do you mean here’s the TikTok? Here’s what happened. The judge issued an oral order and said essentially, everything has to stop. And also if their plane’s in the air, turn them around. And was very concerned saying, look, I know essentially I lose jurisdiction once the planes land and the people in the planes are given over to a foreign authority. So anything short of that, turn them around. I don’t want to lose jurisdiction over this. That’s my oral order.
And later, he follows that up with a written order that is, to quote the judge, “pithier, it doesn’t have the piece about turn the planes around.” But that was in the oral order, but not in the written order. It appears if you look at, let’s say, the “New York Times’” website, the “Washington Post” also has this on their website, a sort of TikTok of essentially three planes. And there are two planes that appear to have taken off prior to the oral order, but could have been turned around and in compliance with that oral order because they hadn’t landed in South America. There is a third flight that appears to have taken off after the oral order and maybe even after the written order.
And so the issue that the judge was focused on yesterday at this hearing, which the government kept on trying to say, don’t even have the hearing. We, the government, have determined there’s no contempt so you shouldn’t have a hearing, which is not the way it works.
Mary McCord: And you have no jurisdiction because this is all within the authority of the president under Article Two, right?
Andrew Weissmann: Right. So the judge had done that and said we’re having this. So that’s sort of the state of play was whether there was compliance with the oral order, whether there was compliance with the written order. The judge wanted to have a hearing yesterday at 5:00. The government opposed that and said you shouldn’t have that hearing. They also made a filing in the circuit court saying stop this and remove the judge.
Mary McCord: Not a normal filing.
Andrew Weissmann: A letter.
Mary McCord: I mean, I’ve seen motions to recuse --
Andrew Weissmann: Yeah.
Mary McCord: -- like a writ of mandamus --
Andrew Weissmann: No.
Mary McCord: -- a petition for a writ of mandamus, or a motion, emergency motion to remove the judge. No. They just wrote a letter. Wrote a letter to the clerk of the court --
Andrew Weissmann: Yeah.
Mary McCord: -- asking the court to remove --
Andrew Weissmann: Yeah. That didn’t happen. So that went forward at 5:00, and the judge was trying to find out what happened and what the facts were. One of the most remarkable things was that with respect to compliance with the oral order, the government said, we thought that the oral order was superseded by the written order because it didn’t lay out all the same terms. And that’s a remarkable proposition. Jeb Boasberg seemed quite surprised by that. He had a little bit of shade at the end when he issued an order with respect to what he wanted today. And he said, I’ll put that in writing because apparently my oral orders don’t carry a lot of weight.
And by the way, Judge Boasberg is not the kind of person as you know, Mary, like, that’s about as snarky as I’ve ever seen him.
Mary McCord: He’s not mercurial or --
Andrew Weissmann: Right.
Mary McCord: -- condescending to the parties or any of those kind of things.
Andrew Weissmann: Right.
Mary McCord: He’s a very even-tempered.
Andrew Weissmann: Even-guilt.
Mary McCord: Yeah.
Andrew Weissmann: Yeah. So even if that’s true, this issue of the written order superseded the oral order, it doesn’t explain why there wasn’t compliance with the oral order before the written order came out because there was no effort seemingly to turn those planes around. And there certainly is reporting, we don’t know how accurate it is, that people in the White House might have basically said, I’m not doing that.
Mary McCord: You don’t have to.
Andrew Weissmann: And the arguments appear to be that once the planes get into international airspace, somehow the Article II power expands and the court somehow loses jurisdiction over the airplane at that point, even though, as the court said, the court’s equitable jurisdiction is over the person. And so these were still United States people flying the planes who could be ordered to turn around, it doesn’t matter where they are. So it seemed like a very, very weak argument.
Mary McCord: Can I just put a little bit finer point on it to make sure people understand how the government’s arguing this? Basically, they’re saying you ordered that no one be removed, right? But the flights had already taken off. So the removal had already happened before your written order was conveyed to the pilots. The removal was done. Nobody violated your order, not to do a removal. Once they’re removed and they’re over international waters, now the president has this conclusive and preclusive Article II authority over foreign relations, national security, and diplomatic relations with the foreign government. And at that point, the court loses jurisdiction because now this is all about our negotiations with the president of El Salvador to accept these migrants and our foreign relationships and diplomacy and national security.
And so the removal was done. We didn’t violate your order. Now we have a new authority. And I want to parse that out for two reasons.
Andrew Weissmann: Yeah.
Mary McCord: One, it is an interesting argument. We’ll see how that plays out. I mean, essentially, it’s like if you can get the heck out of U.S. airspace fast enough, the removal is done, and now you’re in article two territory. It’s one thing to say we didn’t violate because it was already removed. It would be a whole another thing to say the whole thing was within the president’s Article II authority, even the removal over the court’s order. I think some of the things that the government has filed have suggested even this latter would be okay, but that’s still not what they had primarily argued.
The other reason I think it’s important is because contrary to the quote from Tom Homan, some of the other quotes we’ve seen, the spokesperson for the White House saying that was an illegal order and suggesting we don’t have to file illegal orders. Contrary to that, this argument in court is not we have violated the court order.
Andrew Weissmann: Exactly. Right. I think there’s such a huge, I mean, in court, that is not what the administration is saying. And so that’s why they’re sort of in court, out of court. The issue of the first part, that removal, it’s worth noting that the oral order from the court was not just do not remove them. It was also bring them back.
Mary McCord: That’s right.
Andrew Weissmann: And that is one where I think the sticking point for the government’s going to be because the issue is why didn’t they bring it back and why wasn’t that done between the interim of the oral order and even assuming the legitimacy of the argument that the written order somehow supersedes it, what was being done during that period, because it was crystal clear. And the lawyer for the government said as much in terms of like, understood what the judge was saying. So there’s no claim that they didn’t hear it or didn’t know it or that it was an ambiguous oral order. They’re not making that argument. And so there really is this time period where it’s unexplained why something wasn’t happening at that point.
Now, maybe they can show that the plane at that point was already in international waters and so that’s some argument. It seems pretty weak to me though.
Mary McCord: And I think the other thing that was really interesting about this argument is that the court then pressed the government on this. And they basically said, for national security reasons, we cannot reveal details about exactly when flights took off and what was known, when, by whom. That would be a national security matter that cannot be revealed.
Andrew Weissmann: Wait. Can I just say, Mary, I want to take it outside of court for a second? But see, they produced videotape of the flight’s landing --
Mary McCord: Yes.
Andrew Weissmann: -- and --
Mary McCord: Put out as a propaganda video.
Andrew Weissmann: You’re right. And trotting them off to prison. I mean, they were disappeared in the sense that there was no notice. We’re trying to figure out still --
Mary McCord: Right.
Andrew Weissmann: -- like, who’s on the planes? The judge was trying to find that out, but it’s not like this was so secret.
Mary McCord: That’s right.
Andrew Weissmann: And so this is sort of like, oh, what are those national security concerns about this? And so I interrupted you because what was the judge’s reaction to that? This is Jeb Boasberg, who by the way, sat on the FISA court, which is the national security specialized court in D.C.
Mary McCord: Yes. The Foreign Intelligence Surveillance Court. Yes. Well, he really wasn’t having that. He’s like, first of all, I can hear classified information. We may have to go into closed session, but I can hear it. And also explain to me, right, what should be classified about this.
Andrew Weissmann: And it’s your burden.
Mary McCord: And, yes.
Andrew Weissmann: It’s your burden to do that. So don’t tell me, you’re not telling me, you have until noon today to tell me. So we now have gotten two things from the government that were required to be filed by Judge Boasberg. One is a notice in response to the court’s order that lays out what the government’s position is sort of legally, and the other is an affidavit that was required to be produced, and it is quite interesting. So if you remember, there are three flights at issue. And Mary, as you had said, two of the flights, the argument was that they took off post the oral order, but before the written order. And this makes clear that the government’s position is, yes, they took off before the written order, and thus the people on the flight were removed by having been taken off.
And before the written order, they say those flights were in international airspace. They were out of U.S. territory. What the legal ramifications of that remain to be seen, but in terms of what exactly happened, they say they both took off and were out of U.S. territory at the time of the written order. With respect to the third flight, firstly, the government says with respect to that third flight, that definitely took off after the written order. But here’s the key. The government has now clarified that nobody on the third flight was removed pursuant to the Alien Enemies Act. It wasn’t pursuant to the president’s proclamation.
Instead, there were independent immigration grounds to remove them, which would make that lawful. And that issue was called out by the government lawyer at the time of the restraining order going into effect where the government lawyer specifically asked the judge, if there’s some independent ground to remove them, I assume you’re not enjoining that, and the judge agreed. So this is now a bit of a tempest in a teapot. I don’t know why they didn’t say this earlier. But the third flight, if that representation is true, is now off the table because there was an independent basis for not dealing with the Alien Enemies Act at all.
And then the government said that it’s not going to give any further information to the court. And it says it’s not required to, at least at this juncture, certainly isn’t going to do it in open court. They say that they don’t think they should have to even do it in camera or ex parte in camera, at least until the Court of Appeals rules. But they say, if you do insist that we give it to you, we would do it in camera.
They do say what their reasoning is, though. They say that the reasoning is that their view is that the oral order with respect to the first two flights is not independently enforceable for the reasons that we discussed. And so until and unless that issue is clarified by the Court of Appeals, they don’t think that they have to do it. I think the big picture here is that there is this big dichotomy between what’s happening in court and the kind of language that you’re hearing from Donald Trump about impeachment or with respect to we’re going to ignore judges.
That’s not what’s being said here. You might disagree with the arguments. And matter of fact, you may think that they’re weak or some of you might think they’re strong, but they’re making arguments to the court. And that is very different than just saying we’re just not following what you say. And so there really are sort of like two very distinct ways in which the government is operating, the sort of public way and what’s happening actually in court. And as much as I might disagree with some of the arguments, I think it is heartening to see that it’s fine as long as they’re good faith arguments, that’s what the courts are for.
And so I wish it hadn’t been exacerbated by that kind of inflammatory language that we’re seeing sort of up and down the administration because they could have just said, look, we’re litigating this or we think that Judge Boasberg got it wrong. I mean, that would all be fine. But I do think these filings are clarifying. And also the tone, by the way, is respectful. So that’s the latest on this.
Mary, I wanted to toss something to you that is going on in the Supreme Court. I know that ICAP, your group, has very focused on this issue, which you talked about a little bit at the beginning, which is this idea of like a judge issuing an injunction, but it’s sort of a universal junction that precludes the government from taking that action anywhere in the country. I should say this is something that judges have done under various administrations. So, like, Trump is complaining about it now, but it is something that was used in litigation against the Biden administration in various forms. So it’s something that could be a problem, but it’s been used against various administrations.
Mary McCord: Well, and let’s be clear, no administration loves these. Under Biden, you would have litigants run into a single judge district court in maybe, let’s say the state of Texas, maybe whose name starts with a K and seek a universal injunction against various Biden initiatives, including things like, and I’m not sure if this was in that particular court, things like student loan relief and things like that. So sometimes what presidents do under both administrations get challenged and they get challenged in a way that a single district court judge says, that’s unlawful, I’m enjoining that around the country nationwide, a universal injunction.
That’s been criticized by administrations under both parties that a single judge sometimes should not have that power. There’ve been some justices on the Supreme Court who’ve raised questions about universal injunctions, but they still are something that the court has condoned in opinions where it’s necessary to provide complete relief to actually avoid sort of chaos in the administration of a law, particularly in an area where there’s a need for uniformity and citizenship, birthright citizenship.
Who in this country is a citizen and who’s not is certainly something we have a need for uniformity about. And the reason this has come up now is that in every case so far that has gone before the district court challenging the executive order that seeks to restrict birthright citizenship, in each one of those cases, there have been preliminary injunctions entered. And in three of those cases, the three that are up in the Supreme Court right now, including the one that my organization has brought on behalf of pregnant mothers and organizations that include pregnant mothers whose children will be subject to this executive order.
The only issue up there right now is not the merits of the decision about the Fourteenth Amendment. It’s a challenge to the universal injunctions that were issued in those three cases. And the government is saying you should limit the injunction just to the named plaintiff. So in our case, for example, that would be the five pregnant mothers. And then illustratively to illustrate the membership of the two organizations that we represent as membership organizations, we outlined sort of the situation and the description of another 10 or 11 pregnant women.
And the government is saying the injunction should be just limited to them. And in the case of the states’ cases, because remember, states brought cases, it should just be limited to those states. And even if in the case, the Casa case, that’s the one I kept involved in, even if it’s not limited just to those women and families, it should just be limited to the members of the organizations CASA and ASAP, the Asylum Seekers Advocacy Project. Okay, so imagine this world, right? The citizenship of your child then would depend on which state you’re in. So if you were in the state of Washington, your newborn baby is a citizen. If you’re in the state of Tennessee, your newborn baby is not. Unless you could show that you were a member of ASAP or CASA.
Now they don’t have a membership card. Yes, there are hundreds of thousands of members and that membership fluctuates day to day. How do you even prove that? So imagine the chaos that would ensue. Frankly, this executive order, even if it went into effect at all would cause chaos, but this kind of partial effectiveness that essentially means that everyone is going to have to have some other way of showing citizenship than what has historically happened and it would be even more complicated without a universal injunction. So if ever there is a case or a universal injunction, it seems to me that this is it.
Andrew Weissmann: Yeah.
Mary McCord: And that’s now in front of the Supreme Court being briefed.
Andrew Weissmann: By the way, this is a good example of exactly the example that you did of like, what would happen if they let this go forward. I was reading your brief this morning. That is exactly the thing that I found really persuasive was just it just wouldn’t work.
Mary McCord: Yeah.
Andrew Weissmann: There’s just no way to do it. I just want to quote something that you started your brief with because I thought it was beautifully written. It goes to the merits of birthright citizenship, the case that we’ve been talking about that goes really to the heart of the substantive right, not the injunctive part, which is “birthright citizenship is at the core of this nation’s promise that each person is born equal with no curse of infirmity and with no exalted status arising from the circumstance of his or her parentage.”
It was really, really powerful. This is one I just knew this was a Mary McCord brief when I was reading it. I know there’s lots --
Mary McCord: Well, that’s my team. That’s my team.
Andrew Weissmann: I knew you were going to say that. It’s true. There’s a lot of people in these things as you know. It’s like the briefs are really by committee, there’s lots and lots of people who weigh in on it.
Mary McCord: Yeah.
Andrew Weissmann: It was a beautiful way to start and you go on from there to quote Abraham Lincoln, and it’s a beautiful read. So congratulations on that.
Mary McCord: Now that’s the brief in the Fourth Circuit where we won on this issue.
Andrew Weissmann: Yeah.
Mary McCord: We are currently briefing in the Supreme Court. So more to come on that. And last thing I’ll say on this because I do think it’s remarkable is that on the very third page of the government’s motion for this relief in the U.S. Supreme Court, they are complaining about universal injunctions and they say district courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden administration. Now, if that is supposed to be a sort of persuasive argument that there’s something wrong with universal injunctions, rather than an admission that so many things are blatantly unlawful, that this administration has been subject to so many injunctions.
Like to me, I’m like, why would you even put that in there? Because doesn’t it just scream out that judges across the country have said this must be stopped and it must be stopped nationwide.
Andrew Weissmann: Mary?
Mary McCord: A fitting ending.
Andrew Weissmann: Fitting ending. So to all of our listeners, thank you so much for staying engaged at this really important time. So thank you so much for listening. And remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad free. And you’ll also get subscriber only bonus content, like the latest premium episode of “The Blueprint with Jen Psaki” when she has as her guest, the DNC chair, Ken Martin.
Mary McCord: To send us a question, you can leave us a voicemail at (917) 342-2934, or you can e-mail us at mainjusticequestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Ayesha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcasts and follow the series.