Within hours of Donald Trump’s inauguration, numerous executive actions were signed and over 1500 pardons were issued for nearly all of the January 6th defendants, despite his vice president and attorney general nominee suggesting a more refined approach. So, on this first full day of Trump’s second term, hosts Andrew Weissmann and Mary McCord review the blunt nature of these pardons, especially for those convicted of violent acts that day. Then they turn to pardons issued by President Biden in his final hours in office to shield those targeted by Trump for retribution- including members of Congress, those who testified in the J6 investigation, and members of his own family. And finally, Mary and Andrew dive into the myriad of executive actions signed by Trump as legal challenges begin to mount around things like getting rid of birthright citizenship, using the military domestically at our border, undoing the TikTok ban and the creation of DOGE.
Further reading: Here is Mary’s recent write up in the Atlantic: A Sweeping January 6 Pardon Is an Attack on the Judiciary
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back to Main Justice. It is Tuesday morning, January 21st, the first full day of the Trump 2.0 administration. I am here with Mary McCord and this is Andrew Weissmann. Mary, I am not going to say, “How are you?”
Mary McCord: I was just going to say, “If you ask me how I am, I’m going to tell you the truth.”
Andrew Weissmann: Okay, so we’re going to skip that.
Mary McCord: Yes, yes. I think we probably both are a little sleep deprived, staying up half the night reading executive orders and trying to put them all together. And there’s more work to be done on that.
Andrew Weissmann: My day yesterday was, I was at 30 Rock for MSNBC at 9 a.m. I was sort of on air and watching everything that was going on and reading and was on through Lawrence O’Donnell. But as you noted, the day started with more information about the former President Biden’s pardons. Then we had a lot of ceremonial stuff and we had sort of --
Mary McCord: A very, very dark speech, by the way.
Andrew Weissmann: Yeah, well, we had two speeches. It was sort of the rotunda speech and then what I will call the real speech in the ...
Mary McCord: The extemporaneous speech.
Andrew Weissmann: Yes, where it was sort of like the real Donald Trump, where he told you about the stuff he was told not to say at the rotunda speech. But then the real action in terms of what we’re going to talk about was what happened at the end of the day, which is a string of executive orders. So a long, long day. And that is why I think, Mary, you and I, you first said the two of us are a little sleep deprived.
Mary McCord: Yeah. Also, yesterday did various hits on a public broadcasting station, but also spent most of the day, and I’ll talk a little bit more about this later in this episode, working with my team at Georgetown Law to prepare litigation to challenge at least one of these executive orders, which will be coming today. And that’s the order that purports to rescind birthright citizenship. And we’ll talk about that.
But we have to start by talking about what I think was extraordinary, even though we expected something like this. I think it was actually much more far-reaching than we’ve been led to believe from people in a position to know. And that is the complete clemency across the board for all people charged and convicted in relation to January 6, the attack on the Capitol on January 6. That included pardons for everyone except 14 people whose sentences got commuted. And that is extraordinary. And it is a total assault on our criminal legal system.
But it’s also not what people like the now Vice President J.D. Vance had led people to believe would happen.
Andrew Weissmann: Yeah. So let me make sure everyone understands. I sort of divide the executive order into three buckets in terms of what it did with respect to people who have been convicted. That is people who either went to trial or pleaded guilty. They’ve been convicted with all due process in Washington, D.C., District Court, and in relation to January 6.
You have two separate categories, as you noted, Mary. You have, but for a handful of people, there were full pardons, meaning that they have no felony, they’re completely pardoned. If they’re in jail, they’re released from jail. And that is over 1,500 people. That’s bucket one. And we’ll talk a little bit about that. And I know you’ve written about the effect and the disrespect for the judges and the rule of law in connection with that. That’s bucket one.
Bucket two, as you mentioned, is just a handful of people where their felony stands but their sentence is commuted, meaning that if they’re in jail, which they were for crimes of violence, they are out of jail. They do no more jail time.
And then there is a third bucket.
Mary McCord: And just noting that, Andrew, before you get to the third bucket, and I should have been more clear at the top, with respect to all those in jail, whether pardoned or whether given a commutation, the order also directs the Bureau of Prisons to immediately implement all instructions from the Department of Justice, which is also an order to the Department of Justice to immediately effectuate issuance of the certificates of pardon. So we know people were being released even last night and in the middle of the night. And you know, we’ve changed the name of this podcast to Main Justice, and we’ve said that practically everything that happens is going to have to go through justice. And obviously, here’s thing one immediately happening.
But the third bucket, the third bucket is important.
Andrew Weissmann: Yes. The third bucket is those people who are charged but awaiting trial in connection with anything having to do with January 6th. So that group of people, the executive order directs the Department of Justice to move to dismiss those cases with prejudice, meaning that they cannot be rebrought. It’s like a judgment of acquittal, essentially. They’re dismissed with prejudice. And that’s a direction from the White House to the Department of Justice that that’s what they have to do.
Now, the court has to approve that, but there’s very, very limited ability for the court to push back on that. I was asked yesterday on air by Lawrence whether a court could push back on the issue of whether it has to be with prejudice or without prejudice. There’s not a lot of law on that, but I should say that is a very, very limited authority that the court has. So we’ll keep an eye on that.
Mary McCord: And it’s usually been construed to prevent the Department of Justice from trying to get an unfair advantage.
Andrew Weissmann: Yes.
Mary McCord: By the way they dismiss. It’s not usually about something like this when you’re dismissing the case and the intent is actually never to bring it again to at least under this administration.
Andrew Weissmann: Yes.
Mary McCord: So we’ll have a lot more to say about this third bucket because this also relates to something I testified about last week that we discussed on our premium episode about the longstanding policy of not having contact between the White House and the Department of Justice about specific cases. And this direction was completely a direction with respect to specific cases.
Andrew Weissmann: So, yeah, I want to get back to that, but I wanted to give listeners some data. The Department of Justice issues periodically data about their January 6th case. So on their last report, which was on...
Mary McCord: January 6th.
Andrew Weissmann: Monday, January 6th, 2025. So just recently, the department reported the following. There were 1,583 defendants who had been federally charged with crimes associated with January 6th. So all of those people in one way or the other have either been pardoned in full or their sentence has been essentially vacated or the department’s been told to get rid of those cases.
So 1,583 defendants. Here’s a little bit of a kicker. Of those 1,583, approximately 608 charged with assaulting, resisting, or impeding law enforcement agents or officers or obstructing those officers during that disorder. And here’s sort of the, I think, one of the more...
Mary McCord: One of the headlines here.
Andrew Weissmann: ...chilling things --
Mary McCord: Yes.
Andrew Weissmann: -- is 174 people who have now received from President Trump this beneficence through that executive order, 174 defendants were charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer.
Mary McCord: And can I just elaborate on that in that report from DOJ, which, by the way, is on the U.S. Attorney’s Office website for the District of Columbia. And you better look now because I expect that will be coming down very, very soon.
I was surprised it was still up this morning, to be honest with you. Those weapons, according to this, as proven in court, include firearms, OC spray, tasers, edged weapons, including a sword, axes, hatchets, and knives, and makeshift weapons such as destroyed office furniture, fencing, bike racks, stolen riot shields, baseball bats, hockey sticks, flagpoles, PVC piping, and reinforced knuckle gloves.
Andrew Weissmann: So with respect to the Proud Boys and the Oath Keepers, not all of them have, as you mentioned, there’s a group of them that they’re all out of jail. Their sentences were commuted. But not all of them are in that category. Enrico Tarrio actually received a full pardon.
Mary McCord: And this is extraordinary because there were 14 people whose sentences were commuted who did not get full pardons. Nine of those were members of the Oath Keepers, went through jury trials, convicted, including their leader, Stewart Rhodes. Five of those were Proud Boys who went to trial and were convicted. They all got commutations. But Enrico Tarrio, the leader of the Proud Boys, got a full pardon. And I’m still puzzling over that. Now, one could say, well, he was not in the District of Columbia at the time. Well, remember, these charges, seditious conspiracy, are a conspiracy. It’s like saying the person who conspired with and hired somebody to do a hit on someone else, but that himself wasn’t there and did the hit, gets the pardon, and the person who did the hit does not. Like, that makes no sense.
Andrew Weissmann: It’s ass backward. I mean, I remember arguing that in the Vincent Gigante case when I was a little baby attorney that I remember saying to the jury, you saw and you heard the testimony of the low level people who are carrying out the orders, but they want to say that the person who gave the orders, there’s not enough proof. And it’s like, these people didn’t do it on their own. And so the idea that the person who was in charge is getting a full pardon is odd.
Mary McCord: And not the person in charge of Oath Keepers, Stewart Rhodes, who, while he was in D.C., was not physically in the Capitol. He was, a lot of times leaders do this, right? They’re like, let me stay a little away and maybe give myself a little insulation. And Tarrio, by the way, was barred because he had a court case against him from coming into D.C., although we know he violated that because we had seen video of him in a garage in Washington, D.C., I think the day before.
Andrew Weissmann: And your point is so interesting because one, and speculating what the reason is, you can think about, well, maybe they were differentiating based on were you present at the Capitol or not.
Another sort of speculative reason is that Tarrio had information. And if you’re trying to thwart cooperation, and you’re really trying to make sure that you’re keeping your friends close and your enemies closer, that one reason you would give a full pardon is to sort of embrace that person. It reminds me, when I was working on the Mueller investigation, it’s important to note that what President Trump did at the end of that investigation before he left office is every single person who we charged and convicted, they were all given pardons, except, there’s a big exception, the people who cooperated.
So what’s the message there, right?
Mary McCord: Loud and clear.
Andrew Weissmann: So, you know, Michael Cohen didn’t get a pardon.
Mary McCord: That’s right.
Andrew Weissmann: Rick Gaetz didn’t get a pardon. But even low-level people were pardoned if they had been convicted by our investigation. And so that’s at least one speculation as to why Tarrio would be treated differently.
So, Mary, let me give you some quick headline thoughts that I had, and you alluded to it. One is the idea that the Department of Justice is going to be independent of the White House is belied by the third bucket at the very least because the third bucket is a direction from the White House who not to charge.
Mary McCord: Right. Who to dismiss cases against.
Andrew Weissmann: Right. Exactly. And so this is reminiscent of Trump 1.0 where it’s like, I’m going to tell you who to charge and who not to charge. So the independence of Pam Bondi as well as President Trump’s own statements on Meet the Press to Kristen Welker saying, I’m going to leave to the attorney general and the FBI who to investigate as if there’s going to be some independence is in, let’s just say, considerable tension with this executive order saying, I’m directing who you need to dismiss. That is not leaving to the attorney general in the Department of Justice.
It also makes it pretty clear that if you’re the attorney general or even the vice president, we just talked about the attorney general seems to be undercut. The vice president had been on air.
Mary McCord: Just to be clear. She has not been confirmed yet. The nominee Pam Bondi, whose hearing was last week, did testify at the hearing a couple of things relevant to this. Right. She did testify that she intended to operate independently of the White House. And she also professed her very, very strong support of law enforcement and could not condone any type of cases involving assaults on law enforcement.
And, you know, I sat there the next day and testified alongside three members of law enforcement she had worked with in Florida, a sheriff, two prosecutors who and I take them at their words, who worked with her to really tackle the opioid crisis. Florida had become the pill mill, and she worked hand in glove, according to them, with law enforcement to really address that issue in Florida. And I have respect for that, even though I have concerns about Pam Bondi. I have respect for that.
And, you know, my point was to be there to talk about things like the necessity of the independence of the attorney general in the Department of Justice to emphasize her oath is to the Constitution, not to the president, that she needs to recuse if her partiality could be questioned. And she needs to continue the White House context policy, which has been in effect since 1978, post Watergate, under Republican and Democratic administrations.
Indeed, Trump’s own Department of Justice said they had left in place the policy as memorialized in a memo from the Obama administration. And Trump’s own White House counsel had reissued the White House policy of again, these are parallel policies that basically said the White House and the Department of Justice will not have contact, will not discuss pending or contemplated investigations or prosecutions because of that need to preserve that independence.
And you know, as you were just indicating, this straight up direction to dismiss cases is completely the opposite of what those policies were about.
Andrew Weissmann: Absolutely. And the other is last week, the vice president elect, now Vice President Vance, had clearly signaled that there was going to be a triage and don’t expect everything to happen all at once with respect to these pardons, because there’s going to be a triage of the violent ones from the nonviolent.
So that to me and Pam Bondi, they are somewhat had the rug pulled out for them.
Mary McCord: Out of the loop or had the rug pulled out from under them.
Andrew Weissmann: Yeah, I mean, in many ways, you kind of have this idea that it continues to be a bit of a shit show. That’s the technical legal term. And that in many ways, what I started by saying yesterday, we saw the official speech in the rotunda and the true Trump speech where it’s like, here’s the stuff that I wasn’t allowed to say and I agreed not to say. So I didn’t talk about January 6 upstairs, but now downstairs, I’m going to talk about the January 6th defendants. The irony that this is happening four years later is just such a reflection on our country.
And we’re going to take a break to talk about some more. But to me, Mary, I think what we are seeing and what we talked about in this first block of our podcast is Project 2025 in action. This is it coming to fruition. And there’s no way on today’s show we’re going to talk about all of the executive orders.
MARY MCCORD: There are too many.
ANDREW WEISSMANN: We wanted to start with the pardons because it’s so integral to who we are and what we do and the rule of law and as we talked about Main Justice. But we’re going to move on to other aspects after a short break.
MARY MCCORD: Sounds good.
(BREAK)
Mary McCord: Welcome back.
So we said we were going to get to some of these executive orders and we are. But since we’ve been on the topic of pardons, we really can’t move on until we do discuss the pardons that were issued by Joe Biden yesterday morning before obviously the ceremony at the Capitol during which President Trump took the oath of office.
So we had two sets. One was a pardon, a sort of a preemptive pardon that he gave to Dr. Anthony Fauci, former General Mark Milley, all of the members of the House Select Committee that investigated January 6, as well as their staffs and all of the police officers and law enforcement who testified at the committee.
Later, he also pardoned a bunch of family members. Now, these pardons, Joe Biden made clear he was doing this because of the extraordinary situation that we are in and concerns about retribution, concerns that these are people who would be targeted less so maybe his family, but speaking specifically to that first bucket of those who are House Select Committee members and staffs and testified and Dr. Fauci and General Milley, these are people who have been targeted by Donald Trump during his campaign and those who have surrounded him as his allies, and that this was no reflection or did not indicate that any of these people had done anything wrong. They had instead done the right thing, but he felt like he needed to do this because investigations can be incredibly burdensome, not only as a matter of finances, but also, you know, the psychological impact of being under investigation when there’s no merit to it.
This is really extraordinary because we just don’t normally see something quite like this. So your take on that?
Andrew Weissmann: It is, as Congressman Raskin pointed out, in the morning, we saw pardons of innocent people and in the afternoon we saw pardons of guilty people.
Mary McCord: That’s right.
Andrew Weissmann: I felt that was a very clear, concise way of putting it, but the pardons of innocent people, it’s true that we don’t normally see it. I do think that it is useful that there is a new norm and that President Biden was thinking about it in different terms, given that you had President-elect Trump as a candidate, as the President-elect making these kinds of threats, that people had received death threats, that they’d been spoken about that way, and that you had in the Trump first administration the targeting of people, Hillary Clinton being sort of an obvious one, the John Durham investigation, et cetera.
Mary McCord: That’s right.
Andrew Weissmann: So I actually think it’s useful. As I’ve said, I think the issue about whether people accept the pardons is a very individualized issue, but this is a question of being offered them.
Maybe it’s because I grew up in a family of scientists. I read Dr. Fauci’s memoir “On Call” when it came out just a few months ago. I highly recommend it. I’m sure the same could be said of General Milley as well, but Dr. Fauci is somebody who we owe such a debt of gratitude for. He has devoted his life to public service. He has saved hundreds of thousands of lives. And the idea that he faces death threats and needs protection, it is just as much of a tragedy as what happened to Ruby Freeman and Shaye Moss. I mean, these people who are targeted for public service is so anathema to who we are. It’s such a striking example of what has happened to this country and the rule of law or what’s the remnants of the rule of law in this country.
So one thing that’s happened since we’ve been on air, Mary, that relates to this is one of the Capitol Police has received notice from the Bureau of Prisons with respect to defendants as to whom he testified. It’s one of the requirements that the department has.
Mary McCord: That victims, victims have that right. Yes.
Andrew Weissmann: Exactly. So he has received automated messages from the Department of Justice with a log of defendants who are now being released, each of whom had assaulted him. And so when you think about the messaging here to those people in terms of violence, I have to say, just again, thinking about our prior lives at the department, I mean, let’s assume good faith on the part of Pam Bondi and Todd Blanche and Emil Bove and the sort of incoming leadership. I don’t know how they’re going to balance this. I mean, the task they’re taking on, I mean, I would assume no one goes into that job thinking violence is good against anyone. And Pam Bondi certainly said things like that at her hearing. But I don’t know how you square that with what we’re seeing.
Mary McCord: Well, particular to that point, if people like the officers who were assaulted, were the victims, who had to testify in some of the cases brought against those defendants who assaulted them, if these people and others associated with the prosecutions of the January 6th attackers, those who’ve spoken about it, those who’ve written about it, if these people receive threats, if these people are assaulted, what will the Department of Justice and the FBI do? Because that is who we look to, right? That is who we look to in those kind of cases. Yes, assault might be a local crime as well. But when the reason is the reason that we know and when the threats might come interstate, these are things that typically would get reported to the FBI.
And I am not about to denigrate the career FBI agents or Department of Justice career attorneys. And I think they will definitely want to do investigations into those things. And I actually am going to give, as you just did, the benefit of doubt to Pam Bondi and Todd Blanche and Emil Bove, who are going to be, if confirmed, well, Emil doesn’t need to be confirmed, the incoming leadership, he’s there already.
When you give them the benefit of doubt that they would take those things seriously. But will Donald Trump come in with a directive that says, no, we’re not going to investigate that. That remains to be seen.
Andrew Weissmann: So quick things. Emil Bove is going to be the principal deputy attorney general. So the number two to the number two. So we’ve talked about the DAG, the deputy attorney general. He will be the number two to the deputy attorney general. He currently, as of yesterday, Donald Trump has made him the acting deputy attorney general. So he is in there now.
One quick thing about with these pardons, the people who are assaulted, the police officers, they can and have, they can bring civil suits in connection with that. There’s nothing about a pardon that prevents civil suits from going forward. And to your point, Mary, I do think that we’re going to be looking and we will report to our listeners at a lot of state prosecutions, because if the Department of Justice federally does not take action, I think there will be a lot of attention to the attorney generals and district attorneys in the states, whether blue states or red states, to see whether they have jurisdiction or are they taking action. Very much as we saw in connection with the fake collector schemes where we saw local action.
Mary McCord: That’s right. And to be clear, I hope very much that the people who are walking out of prison today or having their charges dropped will appreciate what they have received and will not find the need to try to engage in any of their own retribution. It would be illegal. It would be criminal. And one would think that they would appreciate what they’ve been given and move on.
But, you know, given the numbers and given some of the rhetoric out there, I do think it’s a legitimate concern for whose names are publicly associated with the investigation or who were victims on that day. It doesn’t help in that regard that there are different ways of phrasing pardons and why you’re taking that, for instance, rehabilitation, that the sentence was too long, things like that. But if you speak about what happened as a day of love and that there was a peaceful transfer of power and that these people were just loyal followers and they didn’t do anything wrong and it was the FBI’s fault, all of that rhetoric is something that isn’t going to help with the problem of recidivism.
Mary McCord: That’s right. That’s right. In fact, the pardon language started with “This proclamation ends a grave national injustice that has been perpetrated upon the American people over the last four years.” That was how the EO, where he announced the pardons, was announced.
Andrew Weissmann: Mary, I know you’ve written on this for The Atlantic, but do you want to just talk a moment about the range of judges in D.C. and their makeup in terms of their party, in terms of who nominated them and sort of what’s been happening in these cases? Because I just want to make sure people understand that, yes, the Department of Justice under President Biden and Merrick Garland brought these cases, but you can bring the cases, but they’re in front of a whole range of judges. It’s a court that you know very well.
Mary McCord: Yeah. And I will also note that at the beginning, between January 6th and January 20th of 2021, these cases were brought under the Trump administration, right? The FBI and the U.S. Attorney’s Office went out and started arresting and charging people immediately.
I mean, everyone saw this for what it was. And the district court judges in federal court here in D.C. have spent really the last four years with a heavy, heavy docket. You talked about the numbers, 1,583 people charged. This is a single courthouse, you know, with a limited number of judges. And they have tirelessly handled these cases, right, and ensured that everyone has counsel, that everyone’s due process rights are respected, that everyone who wants a jury trial gets a jury trial. Like, this is their job. And that is what they’ve done, whether appointed by a Republican president, a Democratic president, or Donald Trump himself.
And what’s remarkable here is that all of them across the board have been unified in condemning the actions of the attackers once they have been convicted, once they’ve been found guilty after a jury trial, pleaded guilty. At sentencing, judges have made statements about how this was a serious assault on the peaceful transfer of power, an effort to prevent the counting of the electoral college ballots, undermining our Constitution.
And in my piece, I quoted from a Republican-appointed judge with nearly 40 years on the bench who said at the sentencing of one of these defendants that the court cannot condone the shameless attempts by the defendant or anyone else to misinterpret or misrepresent what happened. It cannot condone the notion that those who broke the law on January 6th did nothing wrong or that those duly convicted with all the safeguards of the United States Constitution, including a right to trial by jury in felony cases, are political prisoners or hostages.
He went on to say this is not patriotism. It was the antithesis of patriotism. And we have heard that type of commenting from judges across the board. So I think for these judges to see their four years of work, and remember, they sat and watched the videos, heard the audio, heard live testimony from police officers who’d been hit in the head with baseball bats, like very visceral, very hard to sit there and see this over and over and over again, and to see their work just wiped out with a stroke of the pen, I think really is an undermining of the judiciary’s role within our criminal legal system.
Andrew Weissmann: Mary, should we take a quick break and turn to some of the executive orders? And also just so that we are ending on, it’s hard to say a positive note, but a less dire note, the sort of various challenges that have already been filed.
So yesterday, they were both executive orders, but they’re also legal challenges because the people who think that they’re legally problematic have already filed suit.
So let’s take a quick break, and we’ll come back and talk about that.
Mary McCord: Perfect.
(BREAK)
Andrew Weissmann: Welcome back.
Mary, walk us through some of the executive orders that are things that struck you and what our listeners should take away from them.
Mary McCord: Sure. And, you know, there are a whole bunch of these, and they all do various things. Some are more just hortatory, I’d say, but some actually have immediate impact. And we’re going to talk in a minute about some of those, like you already indicated, and I already indicated, the attempted rescission of birthright citizenship. But while we’re still sort of on this topic of weaponization of the Department of Justice, there is an executive order that President Trump signed about that topic. It is called Ending the Weaponization of the Federal Government. And it’s an interesting way to title it when it’s all then about, let’s use the federal government to investigate the actions of the last four years.
So it sounds kind of like weaponization of the federal government as opposed to ending weaponization of the federal government. But it’s unclear exactly how this is going to come out, but I think it’s another indication of really this destruction of independence between the Department of Justice and other departments and agencies and the White House.
One of the provisions requires the Attorney General, in consultation with other heads of departments and agencies, to review the activities of all departments and agencies that exercise civil or criminal enforcement authority, including but not limited to the Department of Justice, the Securities Exchange Commission, Federal Trade Commission, over the last four years, and identify any instances where a department’s or agency’s conduct appears to have been contrary to the purposes and policies of this order, those purposes and policies being essentially to not engage in politically motivated law enforcement decisions or investigations or prosecutions, and then, get this, prepare a report, not for the Attorney General, right? Like under special counsel regulations, if you appoint a special counsel to engage in an investigation, the special counsel, as we’ve discussed, prepares a report for the Attorney General, and the Attorney General decides whether to make it public.
That’s not what this says. This says, prepare a report to be submitted to the president with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order.
Now, we will see exactly how this gets implemented. It could be that Pam Bondi, if she’s confirmed, will say, well, you know what I’ll do? I’ll appoint a special counsel, and the special counsel will file a report to me, and then I’ll make the report to the president. That’s one way it could be fulfilled. But there are other ways as well. And the fact that it says recommendations for appropriate remedial actions, these are going to the president, at least the implication is the president then will decide what remedial actions he thinks he wants his Attorney General to take.
Andrew Weissmann: Absolutely. So this is so Orwellian. I say that there was weaponization during the Biden administration. And so leave aside this not a single fact to support that. But let’s just …
Mary McCord: See our conversation in the second segment.
Andrew Weissmann: Right. So because I think there was weaponization during the past four years, I am going to weaponize the Department of Justice and all other agencies to ferret out the weaponizers so that we can take action against the weaponizers.
All of that would make some modicum of sense if there was actually a factual predication for it. I just want to make sure that with respect to Donald Trump himself, his claims of selective and vindictive prosecution to the extent that they were ever ruled on were denied. So this is one where you really feel like you’re living through Orwell and the sort of time-honored political move, which Donald Trump’s not the first to do this, which is to basically take any sort of attack and say, “No, no, no, it was you.” And it’s just so schoolyard sort of immature, except that it’s so real in terms of what’s happening.
So, Mary, one great thing about doing this with you right now is it’s very useful to be digging into this and keeping our eye on what’s going on. Obviously, I just want to make it clear, if there were factual predication for something like this, great.
Mary McCord: Sure. Yes. I mean, this reminds me, though, remember when John Durham was appointed to investigate the investigators. The Mueller investigation was a special counsel investigation into whether there was conspiracy between the Trump campaign and Russia in 2016 in the lead up, of course, to the 2016 election. And then under the Trump administration, John Durham was appointed to investigate those who started that investigation. He came up pretty much empty-handed.
Andrew Weissmann: Not pretty much. Empty. On the issue, the other two matters, John Durham managed to do something remarkable, which is get 24 jurors in two separate cases, so a total of 24 jurors unanimously saying this was not proof beyond a reasonable doubt. That’s a pretty hard thing to do.
Mary McCord: It is.
But let’s talk about a few other things. And before we move off of this weaponization EO, there’s another provision of it that says do the same thing with respect to the intelligence community. In other words, look back at the work of the intelligence community over the last four years and basically say, did the intelligence community do anything that would be contrary to the purpose of this to end weaponization?
Before we skip into some of the other important issues and some that are already being challenged, just again on this topic of lack of independence, there’s a TikTok executive order. And as folks know from when we talked about the TikTok case in the Supreme Court, the way that this ban was to be implemented was to make it unlawful for providers, U.S.-based providers, app stores and places like Google, etc., to have the app updated and make that app available to their users.
So the enforcement mechanism is sort of not a direct enforcement against TikTok. It’s an enforcement against a necessary thing that TikTok needs to operate in the U.S., which is these apps, these platforms that users can access TikTok through.
So what Donald Trump did was in his executive order direct that his Department of Justice not take any action to enforce any violation of the statute passed by Congress for, I think he said, 75 days. And he’s going to try to work something out.
And I understand that. Enforcement is a discretionary thing. And I think even at the end of the Biden administration, because this TikTok ban went into effect one day before inauguration, I think even under the Biden administration, there had been an announcement they’re not going to try to proceed in the one day remaining of the term. So it’s not totally outrageous. But again, it’s another place where he’s not leaving it to his attorney general. Donald Trump is saying you will not take any enforcement actions.
Andrew Weissmann: Yeah, absolutely. So let’s talk about a couple other executive orders that I know you’ve been focused on and what you’re just to give a brief overview.
Mary McCord: I think probably one of the most outrageous things, which was promised and we expected, which is why we have a case ready and will be filed today, is attempting to revoke the constitutional right that is embedded in the direct text of the 14th Amendment to birthright citizenship.
Andrew Weissmann: And the “we,” by the way, is not the Main Justice podcast. It is your other life.
Mary McCord: My day job, even though I’m recording here in the day, yes, my team at the Institute for Constitutional Advocacy and Protection at Georgetown Law.
Andrew Weissmann: ICAP.
Mary McCord: ICAP, yes, along with our co-counsel who represent the organizations that we will be representing in a challenge to this end of birthright citizenship, and that is the organizations CASA and the Asylum Seeker Advocacy Project. These are organizations with many, many members who, some of whom are undocumented, some of whom have some lawful status here, right there under temporary protected status. They have an open asylum claim that is being adjudicated. They have visas, student visas, work visas, et cetera. They’re DACA people. And these people, particularly those who are pregnant or planning to have children, the future for these unborn children is completely called into question here.
What this executive order purports to do is say that the privilege of U.S. citizenship does not automatically extend to persons born in the U.S. if either the mother was unlawfully present in the U.S. and the father is not a U.S. citizen or a lawful permanent resident at the time of birth. Okay, that part we expected. This next part, or when the person’s mother’s presence in the U.S. at the time of the baby’s birth is lawful but temporary, such as, and I’m reading, but not limited to, visiting the U.S. under the auspices of the visa waiver program or visiting on a student, work, or tourist visa. And it could be other things because that’s just such as, so it presumably also means such as somebody here on temporary protected status who maybe has been here two dozen years, has raised a family here. These are people, if the father is not a U.S. citizen or lawful resident, those babies born to these people here lawfully, under a lawful status, just a temporary status, could see their children denied the benefits of citizenship.
I will note something because of that work visa. So there’s been a lot of talk about the tech bros and H-1B visas because there are so many, oh, you know, according to Elon Musk and others, you just can’t get good tech help from our U.S. population. So that’s why it’s so important to have these work visas for people with these specialized skills.
Under this EO, that work visa is temporary. And so these people, if they’ve come, if the mother is on a work visa and the father’s not a citizen or lawful permanent resident, that means a green card holder, their children also under this order would not have citizenship.
Andrew Weissmann: There’s also a weird differentiation in terms of equal protection in terms of how men and women are being treated and their different status. I mean, clearly tons of litigation. You are challenging, other groups are challenged, I guess. So we have a challenge to birthright citizenship.
Mary McCord: Yes, there’s already one case filed. Ours will be filed probably before this episode is made public. And this is our straight up textual 14th Amendment claim. There are some other claims to be brought, but straight up 14th Amendment.
Andrew Weissmann: So we’re going to keep an eye on that. There also was the creation through an executive order of what’s called the DOGE. This is this Elon Musk pseudo department that we’d heard about before President Trump was inaugurated, how he and Vivek Ramaswamy, who’s now no longer, they’ve already downsized and accomplished one thing, which is Vivek Ramaswamy is no longer going to be running it. So the DOGE has worked in reducing that footprint. And DOGE people be excused for not knowing this, but DOGE, it’s not the Venetian DOGE. It is the Department of Government Efficiency. But just to be serious for a moment, Elon Musk is going to be heading this. And so the DOGE is something that the executive order creates this agency.
Mary McCord: Really renames an already existing agency to be the DOGE, as I read it.
Andrew Weissmann: Yeah. So there have been a bunch of lawsuits already filed challenging it mostly under the what I’ll call the sunshine laws, which is that, Mary, as you and I know from being in government, there’s a whole bunch of rules about records retention, about what has to be made public. And these lawsuits are about saying all of those have been violated already. And it’s unclear just to what extent that they have factored in exactly how it’s framed with the executive order and how it’s been done.
But we’re going to keep an eye on that, which is there’s supposed to be transparency in an agency. It reminds me of in my prior life, when you do either work for or if you’re investigating a private company that goes public, sometimes there’s a learning curve in those people needing to understand what the obligations are of being a public company from being a private company. And so this reminds me of that same process.
Can I make a brief note, which is some people might be wondering whatever happened to the Jack Smith report with respect to Mar-a-Lago. If you remember, that was litigation before Judge Cannon. There’s also 11th Circuit litigation. But if you remember Merrick Garland, the now outgoing attorney general, had said that he was not going to make it public, but he did want to give it to Congress. Well, that did not happen. And as we’ve been talking, Judge Cannon issued an order saying that there’s no reason for that report to be made public while there are still two co-defendants in the case.
So to be clear, what Judge Cannon has done is she has blocked release to the public in general, but also to Congress, which was what Merrick Garland wanted to do. That’s an order that she issued today. Leave aside, as we’ve talked about, and I’m not going to belabor it, that she actually dismissed the case and there are no co-defendants of Donald Trump in that case before her. It is true that they are on appeal for the moment.
Mary McCord: Yes.
Andrew Weissmann: And so I suspect that one of the things we will see is, and it’ll be interesting to see whether this is something done by the department on its own or whether it’s something that the White House orders to our point about independence or the lack thereof.
Mary McCord: We’ve been talking a lot. There’s so many more to cover, including Schedule F, which maybe we can get to more next week. That also has been challenged, and that is essentially the conversion of a lot of career federal employees into positions that can be ...
Andrew Weissmann: At will. At will. Employees.
Mary McCord: At will, right, which is positions where you can be fired without any cause, really. So anyway, we will come back to that. That’s already being challenged. But I think it’s important to also talk about there is an entire constellation of executive orders that seem to overlap each other that have to do with presidents’ declaration of a national emergency at the border and declaration of an invasion at the border.
And some of these EOs have to do with shutting down the border to people coming in, going back to the wait in Mexico policy, things like that. Others are, you know, the National Emergencies Act, that’s not an insurrection act invocation. Yes, that allows for military resources at the border, but it does not allow for those military resources, and by that, I mean members of the military, the U.S. military, to actually engage in domestic law enforcement. They can engage in other types of support, construction support, even using their facilities for detentions, transportation, things like that. But they can’t directly engage in domestic law enforcement. That would violate the Posse Comitatus Act.
But this invasion language pervades a lot of different EOs. And I will say that in one of the many different orders that are involving the southern border, this one is part of the declaring a national emergency at the southern border, one of the things that is mandated is that within 90 days, the Secretary of Defense and the Secretary of Homeland Security will submit a joint report to the president about the conditions at the southern border and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act.
So you may recall there are times when Trump said, “I will invoke the Insurrection Act on day one.” He did not do that. He invoked an emergency, which again limits what the military could do. An Insurrection Act invocation is an exception to Posse Comitatus, which would mean the military could engage directly in what we think of as civilian law enforcement arrests or seizure detention. And it would also enable him to federalize state national guards to do the same. So we’ll see.
In the meantime, there may be other things he will try to do that aren’t clear yet from these executive orders, such as use sort of voluntary resources of national guards in states friendly to his position. And all of that is stuff we can come back to.
Andrew Weissmann: Yeah. Well, that is just a huge topic about the military and whether it’s going to be used domestically in violation of various laws and whether they’re going to cabin the use or whether they’re going to try and push the law. So that’s certainly going to end up in the courts. It is another thing that we are going to keep an eye out for. I agree with you. There’s so many things to cover, but we wanted to give you some of the tools to deal with the onslaught of executive orders. It’s so much like Trump 1.0, which is there’s so much that your attention is distracted.
Mary McCord: It’s like shock and awe, right? I can’t even focus on one thing because there’s too many.
Andrew Weissmann: Yeah. If you are an environmentalist or believe in science.
Mary McCord: Yes, exactly. You don’t have to be an environmentalist.
Andrew Weissmann: Right. So we’re out of the Paris Accord. We’re out of the World Health Organization. By the way, I’ll tell you something amusing to end on, which is I was looking at the White House statement about the World Health Organization. And because of the formatting, one of the sort of sub headlines said the Trump administration withdraws from the world. And you then had to look down to see health organization.
But I was thinking, oh, they could have just put a period there. You know, when you think about what’s being proposed now with respect to tariffs and the Gulf of Mexico being renamed.
Mary McCord: I mean, some of the things that are purported to be done by these EOs are almost laughable. Like, you know, let’s rename the Gulf of Mexico, the Gulf of America. Let’s, you know, rename other things. Anyway, petty. Sounds petty.
Andrew Weissmann: Yep. Mary, this is a really great discussion. I really appreciate it. I’m so happy once again to be doing this with you. I don’t want to keep you any longer because I know that your day job calls on an important mission.
Mary McCord: I’m dashing there as soon as we finish recording. Similarly, I’m glad to be doing this with you. And I think that, you know, our new scope, our new mission as Main Justice, people can see just by today’s episode how big a task it’s going to be to cover what’s happening.
Andrew Weissmann: To all of our listeners, thank you so much for staying tuned to us. Remember, you can subscribe to MSNBC Premium on Apple Podcasts if you want to get this show and other MSNBC Originals ad-free, as well as subscriber-only bonus content, which Mary referred to our episode from last week.
Mary McCord: Reminder to everyone to send us a question. You can leave us a voicemail at 917-342-2934. Or you can email us at our new show email, mainjusticequestions@nbcuni.com.
This podcast is produced by Vicki Vergolina. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio.
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