In a news cycle that keeps on churning, Main Justice hosts Andrew Weissmann and Mary McCord wade through the nonstop dispatches to set some focal points for this episode. They begin with the hearing held by Judge Dale Ho last week over the Eric Adams dismissal and the Judge’s appointment of Paul Clement as amicus, a.k.a. a friend of the court. Andrew details the important decisions Judge Ho has before him as Mary drives home why this case will reverberate beyond the embattled New York Mayor. Then, they touch on the latest resignation- this one, from Denise Cheung, the chief of the criminal division in the DC US Attorney’s office, after being asked to do something by the administration she believed was unsupportable. And last up, Andrew and Mary look at the Supreme Court denial of a stay in the case involving Trump’s firing of Hampton Dellinger, and the disconnect between DOJ representations about Elon Musk’s role in court versus what Musk is saying and doing in practice.
Further reading: Here is Andrew’s piece on Just Security: Why the Rule of Law Depends on an Evidentiary Hearing in Mayor Eric Adams’ Case.
And HERE is the letter of resignation from the head of the criminal division in the U.S. attorney’s office in D.C.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome to Main Justice. It is Tuesday morning, February 25th. I’m Andrew Weissmann. I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: So Mary, I know it was a hard week to scrounge around for topics. There’s so little going on that I know we sort of like, we’re scraping the bottom of the barrel to figure out what to talk about. And that is clearly a joke because it continues to be the case that what we’re trying to do for our listeners is try and select things that we find sort of most important, particularly on the legal front, and things that either are important in and of themselves or are emblematic of issues that we’re going to see over and over again, because it’s just impossible to cover everything. You can see the volume of just the litigations that are going on, and that’s leaving aside all of the policy issues.
Mary McCord: Yes, and almost every one of those cases in its own regard would be worthy of a whole segment, if not a whole episode. So it’s really tough to decide which ones to focus on, and we’re going to do our best.
But for today, we do want to sort of pick up where we left off last week as our lead-off topic, because last week we told listeners that the very next day there would be a hearing in the Southern District of New York in the matter of Eric Adams and the motion to dismiss that case. And of course, that hearing did occur, and other things have occurred since then, including the appointment of an attorney to argue the position of the public interest since the government and the defendant are in alignment with that dismissal, and we will talk about that. We’ll also talk--
Andrew Weissmann: Mary, can I just say, that seems like a year ago.
Mary McCord: I know, I know. And even though I read everything at the time it happened, then some days pass, and it’s like, I need to read everything again because I’ve got too much else in my head. Like, my head has little compartments, my brain, and then I can only fill so many compartments at one time, and then they get overloaded, and I have to like reload them.
Andrew Weissmann: I used to describe my brain as a giant Etch-A-Sketch. And because like you, we both had management positions with lots and lots of emergency things happening, and then sometimes longer-term things, and we had literally hundreds of people reporting to us, and people would come in with an issue. I would listen to it, I’d read everything I needed to, I’d make the decision, and I’d move on. But they could come back the next day, and they’d just fill me in on an update, and I’d be like, no, no, no, no, no. You have to assume I’m a giant Etch-A-Sketch. It is gone from my memory.
So, you know, I would try to remember things that I--
Mary McCord: You shake it, you shake it, and all the sand, or whatever it is in there, goes away.
Andrew Weissmann: Exactly, anyway.
Mary McCord: Nobody knows what we’re talking about anymore, who has children. Does it exist? Do they exist anymore? Our producer is saying yes, so yes. One day I’ll have a grandkid, and I’ll be able to go get them a Etch-A-Sketch. No pressure, kids of mine.
Andrew Weissmann: I like that. This is like a new forum.
Mary McCord: No, just to be clear. I’m far too young to be a grandmother, just so everybody knows, far too young.
Andrew Weissmann: Absolutely.
Mary McCord: So, actually, talking about the Eric Adams case also segues very nicely into something that also seems ancient history now, and that is the resignation of the criminal chief of the U.S. Attorney’s Office in the DC office. That is a job that I held in 2012 through 2014 before I went over to Main Justice. It’s a person I know very well, Denise Cheung, and she had some pretty--
Andrew Weissmann: Me too.
Mary McCord: Yes, as do you, because she spent time both not only in the U.S. Attorney’s Office for many, many years, as I did, but also at Main Justice, and she had some very significant reasons to resign, much like, I would say, Danielle Sassoon and others did when they resigned over the conflict, over the motion to dismiss Eric Adams’ case. Different context, but something she did not feel that she could do consistent with her responsibilities as a prosecutor and her ethical duties. And then we will also talk a little bit about something else we talked about last week was that first case that the administration has tried to take up to the Supreme Court that involved the firing of the special counsel Hampton Dellinger, who is Walter Dellinger’s son, that--
Andrew Weissmann: And who is, for the uninitiated, who is Walter Dellinger?
Mary McCord: So, Walter Dellinger, of course, is sort of an icon within the Department of Justice, had served as the assistant attorney general over the Office of Legal Counsel, and has written many, many influential opinions that have guided the department in the years since then. At any rate, that firing of Hampton Dellinger was put on hold with a TRO, everybody knows that’s a temporary restraining order. The administration tried to appeal that to the D.C. Circuit, which denied it, and took that on up to the Supreme Court, which also denied a stay, a stay of that TRO. And we’ll talk a little bit about that.
And I think, honestly, we need to address some other things. We need to address sort of this disconnect between what the government is saying in court in more than one case about the role of Elon Musk, and what Elon Musk and President Trump are saying, and what Elon Musk is doing in terms of his role in the federal government, because I think there’s a disconnect there, and I think this is going to come to a head.
Andrew Weissmann: And I think Judge Chutkan, I just have this feeling that Judge Chutkan agrees with you, Mary.
Mary McCord: And Judge Kollar-Kotelly as well, who had a hearing on this. I’m not going to say they agree with me, but it’s a very, it’s a, well, we’ll get to it in--
Andrew Weissmann: Let’s, okay, you’re right. I’m going to phrase it as, you agree with them.
Mary McCord: Yes, I agree with them.
Andrew Weissmann: But in my world, I think they’re agreeing with you.
Okay, so should we turn to the Adams case?
Mary McCord: Yes, and I really want to go to you first on this. I have tons of thoughts, but you wrote a fabulous piece in “Just Security” about the issues here, some of which we discussed last week, but others involving this appointment of a very prominent attorney, Paul Clement, as amicus, that means friend of the court, amicus curiae, to actually represent an interest other than the one in which the government and the defendant were aligned, which is they were in line, and dismiss this case without prejudice.
We’re all in agreement that should be the end of the story, and the court thought otherwise and decided to appoint someone to argue sort of the other side, which is not that unusual, and I want to talk a little bit about that, but before we get to that part, fill us in, please, Andrew, on what the government’s positions and Mayor Adams’ attorney’s positions were at the hearing before Judge Ho, and why some of that is concerning.
Andrew Weissmann: Sure, so the parties, the government and the defense, appeared before Judge Ho. There was a motion by the government to dismiss the case without prejudice, that is so that they could bring the case whenever they so choose in the future, no promises whatsoever as to when or whether they would bring the case. They did not seek to have the case dismissed with prejudice, neither side did, even though obviously if you’re on the defense side, that’s of course what you’d prefer, but it’s still any day that you’re not facing charges is a good day.
And so what got a lot of attention was this idea that there’s sort of this sort of Damocles, or as we described it last week, a choke chain on the defendant because this was always pending, and the reasons for the motion have varied over time, and that could be a whole separate episode going through the various iterations, and it even varied on the day of where what Emil Bove said in court and in his papers was different than what a press person and then Pam Bondi herself, the attorney general said, because the attorney general later said the case was essentially no good, and if the case is no good, I don’t know why you’re not dismissing it with prejudice and why you would be leveraging it to get something out of it. To me, that’s even worse.
Mary McCord: And this goes to the points also we were just talking about with respect to Musk, right? We have what’s happening in court, what Emil Bove put in his court papers and came into court argued, then we have the distinctions between that and his directive to the U.S. Attorney’s Office to dismiss the case in the first place, his memos back and forth between the former interim U.S. Attorney, Danielle Sassoon and Emil Bove, and what the attorney general, Pam Bondi, and others are saying.
So we have like multiple versions, and I don’t know about you, but I tend to go with what the first version was oftentimes, which is what he said, what Emil Bove directed the U.S. Attorney’s Office to do, and why.
Andrew Weissmann: So to sort of put a fine point on sort of what the judge has to confront is the parties before him said, “There is no quid pro quo. This is just standard procedure.” And so obviously, and this is one of the things I wrote about for Just Security, is there’s lots and lots of things to suggest that there is a quid pro quo, including the letter from Danielle Sassoon, now the former head of the Southern District of New York, saying that she was in a meeting that was tantamount to a quid pro quo, and that her people who were with her were ordered to give their notes to Emil Bove, as opposed to letting them take them with them.
And he apparently said, he hasn’t denied that and said, “I did that so that there wouldn’t be any leaks,” which is, I think, facially implausible, because leaks have nothing to do with whether you have notes or not. So there’s substantial reason for the judge to be concerned about is there or is there not a quid pro quo. So to be fair, you and I might think, “Oh, I believe X versus Y,” but this is what judges decide. And to give Emil Bove and Eric Adams their due, they can have their position and they can defend it in court, but this is, the judge basically is allowed to have what judges have all the time when they’re disputed facts, which is a hearing.
And the reason it’s important to appoint Paul Clement, or an amicus, is so that he can hear that. He could hear, “Is there enough for a dispute here that I should hold a factual hearing? Is there enough of a dispute with respect to the law that gives me some ability, some legal ability to do something other than dismiss the case outright without prejudice? What’s my, do I have to dismiss the case? Does it have to be without prejudice? Could it be with prejudice so that there isn’t a sort of Damocles hanging over the defendant’s head?”
And so he, the judge, has taken this step-by-step approach of, “Okay, I’ve heard you, but now I want to hear from somebody who has got a contrary view, and I’ll decide then what I want to do, whether I need legal argument, whether I need to have a factual hearing.”
Mary McCord: You’re explaining all the good reasons why the judge said he’s going to appoint an amicus and did appoint an amicus in a written ruling, which we can talk about. But at the hearing, Emil Bove very clearly argued to the judge, “What has happened here is a core exercise of prosecutorial discretion that is 100% up to the executive,” and cited, of course, the Supreme Court’s immunity decision that these are things that are not something that a court can look behind, not something that Congress can look behind, conclusive and preclusive functions of exercising prosecutorial discretion.
He claimed his reasons in his motion to dismiss are those core exercises, and the judge really should not go any further than that at all, except admitting the judge could examine whether this motion was made in bad faith. And Emil Bove said, “I’m standing before you telling you why I made this motion, telling you what is in my papers. That’s what you should believe, Your Honor, and that’s not bad faith, and that should be the end of things.”
Andrew Weissmann: And you cannot consider anything else.
Mary McCord: Oh, that’s right.
Andrew Weissmann: You shouldn’t be able to consider any other evidence. He didn’t cite a lot of law for that latter proposition. A matter of fact, I think when I say not a lot, that’s a euphemism for a goose egg.
Mary McCord: Yes.
Andrew Weissmann: Nada, zilch.
Mary McCord: And that was when the judge said, “Hey, there’s been all these other things filed. There’s been people moving to appear already as amicus. They’ve attached letters and memos and other things on this topic. Can I consider them?” And he basically said, “No.” He didn’t basically, he said, “No.”
Andrew Weissmann: He said, “No,” and he called the amicus that he didn’t want the judge to consider. Partisan noise.
Mary McCord: Yes. All right, now jumping into--
Andrew Weissmann: That issue. Yes, no, but that’s a really good point to tee off because that really went to, Emil Bove said, “This is preclusive and exclusive within prosecutorial discretion, and thus, even if there is a quid pro quo,” which we tell you there isn’t, “Even if there were one, you have to do what we say.”
Mary McCord: That’s right.
Andrew Weissmann: And that’s what I really wrote about because this is much, much bigger than the Eric Adams case. What Emil Bove says, the import of this, is that we can use the criminal process to extort. This would be the import. He obviously didn’t use these words in court. The import is that we can use it to extort defendants to do something, and I came up with a couple hypotheticals to illustrate this. They’re hypotheticals. I don’t want anyone to think this is what they have done so far, but this would be the result if the court said, “There’s exclusive and inclusive prosecutorial discretion.”
Imagine that Mayor Adams was a member of Congress. Imagine if he were a Republican member of Congress. Just so we take the politics out of it from this situation. And a Democratic attorney general indicted the now member of Congress, Adams, and said, “You know what? We’re going to dismiss that case without prejudice, so it’s dangling over your head, and here’s what we’re going to be looking for. You’re going to vote as we tell you.” That’s the quid pro quo.
Second, you know what? We’re going to dismiss the case. Assume Mayor Adams is now a wealthy oligarch, or techno bro, or whatever the terms are that people are spreading around. It’s going to cost you. It’ll be $50,000 in cash per month, please. And that’s a quid pro quo.
Mary McCord: And if not, we’ll rebring that case.
Andrew Weissmann: Yes. And then the third one is one where there isn’t even a case so that you’re not in front of the judge. At first, I wanted the judge to focus on that, which is this could all happen without the case having been brought, which is you’re about to bring the case, and you say, “Here’s the deal.” And it’s the same two hypotheticals I gave, which is, “I will go forward and indict you, except if you do X, Y, and Z.” And those are all quid pro quos. Those are obviously, those are extortions within the federal meaning of the extortion statute.
And I really want to see with those hypotheticals, is the government going to show up and say, Judge, I understand them saying that’s not factually what happened. That’s fine. They can say that, that’s what the hearing would be about. But to say that those quid pro quos are within the exclusive and preclusive power of the executive, if that happens, the biggest weapon that this administration and all future administrations will have is this criminal authority to go forward and use that as a way to bludgeon people to their will, in the same way that we’re seeing the kind of fear from being primaried, the use of withdrawal of money, the way the president talked to the governor of Maine, saying, If you don’t do this, we’re going to withdraw the money from you. But now you actually could, I mean, you want to talk about weaponizing. This would be unbelievable. And one thing to be fair is, I just want to make it clear, Emil Bove’s point would lead to this. He didn’t articulate all of this. And I want to see whether he would come back and say, “No, no, no. There are limits to what we can do. And what are they?”
Because I think if he agrees that there are limits, obviously, if he just says there are none, that has to be litigated to the hilt. If he agrees there are limits, then that to me means that the judge has to have a factual hearing to decide what is the nature of the quid pro quo here. Because especially, Mary, one thing that you and I take for granted, and I’m not sure, just to make sure everyone understands what’s in our head, normally, when you have a criminal case and you are asking it to be over and there’s some kind of understanding between the government and the defense, whatever that understanding is, it’s in writing.
Mary McCord: Well, this is exactly what I want to come back to. Let’s take a break. — Perfect. — Because I think a lot of people have asked me in the week, how is this different than like cooperation? It’s different in a whole lot of ways. So let’s talk about that after break because you’ve teed that up so perfectly.
Andrew Weissmann: Great.
(BREAK)
Andrew Weissmann: Mary, how is this different than a cooperation agreement and how is it similar?
Mary McCord: Right. So people have asked, what about when you’ve got a cooperator in a criminal case who agrees to work with the government and in return is expecting something? Isn’t that a quid pro quo? Well, the difference here is that ordinarily in that situation, that cooperator, first of all, the agreement is all part of a memorialized written agreement and usually the cooperator is agreeing, if the cooperator is somebody who is criminally culpable, this is a completely different situation than just someone that’s a cooperating witness but doesn’t have any criminal culpability.
But if the cooperator is somebody, let’s say who has been charged already and is now saying, hey, I can tell you more about this case, I can talk to you about other conspirators, I can provide you evidence.
Andrew Weissmann: Sammy Gravano, the number two in the Gambino family, famous cooperator. I can tell you about the boss of the family, John Gotti and other people in the Gambino family and other organized crime films. Classic, classic example of a cooperating witness with a written cooperation agreement.
Mary McCord: That’s right. And they are accepting responsibility and saying, I’m accepting responsibility, I can also provide information government and the government says, let’s enter this deal and if you provide that information, we will make that known to the judge at sentencing and may even file something called a substantial assistance motion that would ask the court to go below sentencing guidelines and to reduce the sentence in return for that cooperation.
The person has accepted responsibility in these cases, it’s completely unlike a situation of Eric Adams who is of course denying any criminal responsibility and is agreeing to this agreement with the government by which he’s not cooperating in terms of providing evidence with respect to criminal cases. The other situation we hear of a lot is a situation where there’s a corporate defendant and a corporate defendant will sometimes enter into what’s called a deferred prosecution agreement with the government.
In this case, the corporate defendant, let’s assume they’ve been charged with export violations, right, that violate the Export Control Act. They might say, give us a chance government to put in new measures, do an entire revamping of our internal procedures to assure you government that we are complying with all export control laws going forward and that agreement might include a monitor that will monitor whether the company is actually going to follow its internal procedures, comply with export laws going forward and that agreement will be a memorialized agreement. It goes in front of the court and if the agreement is if the corporation does modify its rules, its internal rules and comply with all export control violations, the government will then dismiss the case.
So again, we’re talking about an agreement where the defendant is accepting some responsibility saying we will change our processes and make sure we’re not in violation of the law going forward and government, you can be the check on that and these things are things that the court will look to make sure there’s no coercion, there’s no duress, there’s all these things are on the up and up.
Andrew Weissmann: So to me, I completely, those are exactly the examples I was thinking about having been a criminal prosecutor for a long time and a criminal defense lawyer and also I did so many corporate cases. So those were exactly what I was thinking about. Those are quid pro quos in the sense that there are agreements but that’s where the conversation about this has to be more nuanced. It’s not the quid pro quo per se that’s the problem, it’s the nature of what the quid pro quo is. Everything that you talked about, let’s leave aside that it’s in writing, let’s leave aside that at times the court is very involved in reviewing them and let’s leave aside even that you would do it when the defendant’s accepting responsibility whether it’s a person or a corporation.
More than that, the quid in the quo goes to a legitimate criminal law enforcement goal. It is not, oh, that corporation, if you want to avoid indictment or you want to have a deferred prosecution agreement, you are going to pay me $50,000 in cash.
Mary McCord: Something utterly unrelated to the criminal process or criminal law, yes.
Andrew Weissmann: And it can’t be that you’re going to enforce federal law, federal policy when you have absolutely no obligation to enforce federal policy. Eric Adams doesn’t have an obligation to enforce the federal immigration law. In fact, one of the things that he seems to be approving is the feds coming in and violating local law.
One of the things I have noted on television in talking to Jen Psaki about this is that you have a mayor of New York under five felony charges out on bail saying that it’s okay to violate a local law, which he has no power to do. I mean, it’s just unbelievable.
Mary McCord: And we’ve talked about some of these laws in a previous episode that there is that federal immigration law is uniquely for the federal government to enforce and any cooperation by state and local entities, including the mayor of New York City, has to be completely voluntary but also would need to be consistent with local law.
Andrew Weissmann: Exactly, I mean, they can choose to do it. They also obviously could be in trouble if they obstructed federal law enforcement. That’s the line. You don’t have to help, but you can’t obstruct. So everyone should stay tuned. The papers from the parties, from the amicus before Judge Ho, every party is due on the 7th of March. He will then read those and if necessary, he is going to have a hearing one week later on the 14th. So this is definitely a to be continued, but there’s a big, big reason that Mary and I are spotlighting this because not to put a lot of pressure on Judge Ho, not that I think he’s a listener of ours, but if he gets this wrong, we’re in--
Mary McCord: It’s serious.
Andrew Weissmann: It’s serious, that’s the polite term. I was thinking deep, deep, yes, deep trouble.
Mary McCord: Before we completely leave the subject though, there aren’t a ton of options, right? I think one option is a dismissal with prejudice, right? The judge can say, what you’re doing here is actually not in good faith. It is actually a deal that you’re making to coerce the mayor into cooperating with federal immigration enforcement and you’re doing it in a coercive manner that is not in good faith and therefore, if you want to dismiss, I’m going to grant that motion to dismiss but it’s going to be with prejudice.
Andrew Weissmann: And a really good question that I would ask if I were the judge is what is the reason that you are not dismissing this with prejudice? I just heard the Attorney General talk about how this case, this is going to be my euphemism, is garbage and was politicized so why are you going forward with it? There has to be some reason that you’re giving--
Mary McCord: You can’t go forward with a case if you don’t believe you have evidence sufficient to prove it beyond a reasonable doubt and mind you, that statement of the Attorney General is very, very different than the first directive to dismiss the case in which Emil Bove said to the US Attorney’s Office, “I’m not questioning the merits of the case or the work of the prosecutors in building the case at all.” So we’re back again to sort of what are the representations in court and what are the reality?
And then the other question is like, suppose he thinks it shouldn’t be dismissed, is that even an option? And that’s where it gets a lot trickier. So much, much more to come.
Andrew Weissmann: We’ll get to that.
Mary McCord: Yes.
Andrew Weissmann: So speaking about representations and questions about what’s going on at the department, that is a good segue to Denise Cheung, who until a New York Minute ago, which is probably a wrong thing to say since she’s in DC.
Mary McCord: That’s right.
Andrew Weissmann: She had your old job or you had--
Mary McCord: I had the job that she most recently has had, yes.
Andrew Weissmann: So spoiler alert, I think it’s fair to say both of us hold her in very high esteem, lovely person, solid person, ethical person, because we both know her, so we can bring that to the table. But what’s the situation? Because she has a resignation letter that I found pretty jaw-dropping when I was looking at it. And just to be fair, it’s just her side of the story. I have zero reason to think that it’s not accurate and credible and truthful, but it is just one side. But if that is what happened, it seemed pretty jaw-dropping.
So Mary, what does she say happened?
Mary McCord: Yes, it gets fairly technical, so I’m going to try to do this at a high level, but essentially she said she was asked directly by none other than again, the Office of the Deputy Attorney General, that is Emil Bove in an acting capacity as the Deputy Attorney General, asked to open a criminal investigation into whether a contract had been unlawfully awarded by one of the executive agencies. This was a Biden administration environmental grant initiative. Shortly before the change in administration, the monies had been dispersed. These were grants that monies had been dispersed to a financial institution for further dispersing to grantees, and that she was supplied some types of documentation, some video, I believe, that has come out through other sources was Project Veritas videos, and told open a grand jury into this, and suggested that she should also issue, or have the FBI issue a freeze on this financial institution to make sure that the awardees who were to get the money under this award, make sure that that money would not be able to flow from them.
And to do this, to freeze money, that requires there to be probable cause that there’s evidence of a crime that you’re pursuing, right? You can’t just be like, “Hey, freeze these assets.”
Andrew Weissmann: Yes, this is our criminal law coming through, and you don’t have to be a prosecutor or a defense lawyer, and it’s on both sides, or the judge would know this. Freezing an account is a seizure under the Fourth Amendment.
Mary McCord: That’s right.
Andrew Weissmann: That is taking someone else’s money and putting a hold on it. It is similar to the police coming and putting their hands on a person and saying you’re under arrest. It is like going into a home and searching and seizing something.
Mary McCord: That’s right.
Andrew Weissmann: That is a Fourth Amendment event. And so when Mary says, “That is not something you can just willy-nilly do. It requires probable cause, except in the most unusual circumstances,” which was not here. As soon as I read that, I was like, “This is a Fourth Amendment seizure of an account that she was being asked to do.” And so, immediately as a lawyer, you say, “Where’s the probable cause?” And that, by the way, she was asking, and the Bureau was asking as well. The Bureau was like, “We’ll do this if you tell me there’s probable cause.”
Mary McCord: And what she said in her letter is, “I asked for probable cause. What you provided did not, in my view, as a prosecutor, rise to the level of probable cause. So I could not do what you asked me to do.”
Andrew Weissmann: And I consulted with people. And I talked to people. I talked to career people in the office. She did all the things you would do. And she’s like, “I can’t do this.”
Mary McCord: That’s right.
Andrew Weissmann: This is where the checks and balances are. Of course, there’s a check and balance in the court. But I want to make sure people know that our rights, this is where it happens, where there is so much that is assuming the training and good faith of prosecutors and agents and analysts to be looking at this and be fact-bound and law-bound. And so, when you read her letter, you’re like everyone in her world and what she’s describing in the FBI world are doing what it needs to be done to make sure that they’re not filing the Fourth Amendment.
And I have to say, I was really proud of her. And I was really proud of the Bureau because they’re used to going to court, having to justify what they’re doing and not doing things that they think are improper.
Mary McCord: That’s right. And I should be clear here, her letter of resignation was to the interim US attorney who’s now been nominated, Ed Martin, because it was through Ed Martin that she was directed to do things. Originally, this came from Emil Bove’s office, but then Ed Martin, as her immediate supervisor, her immediate boss, was directing her to do that. And I do just want to read her kind of concluding sentences in this letter, which will be in the show notes.
She was telling Mr. Martin, “As I shared with you at this juncture, based upon the evidence I have reviewed, I still do not believe that there is sufficient evidence to issue the letter you described, including,” meaning the US attorney, “including sufficient evidence to tell the bank that there is probable cause to seize the particular counts identified. Because I believed that I lacked the legal authority to issue the letter, I told you that I would not do so. You then ask for my resignation.”
Then she does go on to say how committed she remains to the oath that she took. It was her honor of her lifetime to be in AUSA in this office, and that she knows that all of the AUSAs in the office will continue to uphold that pledge that they have taken following the facts and the law and complying with their moral, ethical, and legal obligations.
So we’re now seeing respected prosecutors in both the US Attorney’s Office in DC, the US Attorney’s Office in the Southern District of New York resign because they could not do something that they were being asked by the new political people in the Trump administration to do.
I will also note that Ed Martin has actually now been nominated to be the US Attorney. He had been serving in an interim capacity, notwithstanding that he had told that office on day one that he expected to become the nominee. There had been, you know, there’s reporting that originally it was thought he was going to go be a deputy to Russ Vought at OMB, but now he has this nomination.
And there’s many more things we could say about what Ed Martin has done since he’s been in this interim position, including his letters to members of Congress saying they’re under investigation for supposed threats against DOGE, against Supreme Court justices. We will save that for another day, but this is the same person we’re talking about here.
Andrew Weissmann: I’d say there are lots of things to say in this snarky, it’s that he needs to work on his grammar and on his X and letters and things that he sends out. But on the substantive level, he has described his position as the president’s lawyers, not as the public’s lawyers, which is exactly the problem.
Mary McCord: Yes, and that was in a very public, you know, social media post as the president’s lawyer. And we’re like, ooh, your oath was not to the president. Your oath was to the constitution.
Andrew Weissmann: Exactly. So Mary, should we take a break and come back and talk about the Dellinger case? We had talked about that he is the head of the office of the special counsel, not to be confused with the special counsel, it’s a separate office outside of the department, and the president tried to remove him and there’s a legal challenge, but it’s a big case because it’s sort of the first of the cases that deals with the power of the presidency to be able to remove at will people in the executive branch and whether there are any limitations on that, the sort of unitary executive theory.
So should we take a break and come back and talk about where that stands? And there’s news because the Supreme Court actually issued at least a decision with respect to part of it.
So let’s take a break and come back and talk about that.
Mary McCord: Yes, sounds good.
(BREAK)
Andrew Weissmann: Mary, I know that we were deep into the sort of the weeds of this last week, but with a sort of recap, what did the Supreme Court do this week with respect to the Dellinger case?
Mary McCord: Right, so we talked last week about the difference between that Supreme Court precedent has suggested a difference between whether the for cause requirements to fire independent agency heads, whether that applies differently when there’s a single agency head, like in the case of Hampton Dellinger as head of the Office of Special Counsel versus when there’s a multi-member commission as the agency head. And we talked about that last week, so we won’t dive back into that.
But suffice to say, the district court had issued a TRO preventing Dellinger’s firing. The government sought to have that TRO stayed by the circuit court. The circuit court decided in a two to one decision, they would not stay it because you typically do not get a stay of a temporary restraining order. So they went to the Supreme Court. The Supreme Court, I think this was on Friday, did not deny the stay, simply deferred consideration of the stay, held it in abeyance until February 26th because that’s the day and that is tomorrow that the temporary restraining order is set to expire.
Now at that point, if the judge were to enter a preliminary injunction, a preliminary injunction is an appealable order, it is something that they could go up and seek a stay of. And I think the Supreme Court in some ways is saying, we’re going to punt this and just see if maybe this whole thing will go away on February 26th and we don’t have to deal with it. And so I guess we will all find that out.
Now there were two justices, Sotomayor and Justice Jackson, who would have just denied it as opposed to holding it in abeyance. And then there were two justices, Justice Gorsuch and Justice Alito, who dissented from the order and would have granted the stay to really consider whether TROs, particularly in these circumstances, for the reasons you indicated before the break, this impacting sort of the president’s executive powers when it comes to heads of independent, and I put these, people can’t see my fingers doing little quotes, independent agencies, but they’re nevertheless part of the executive branch.
Those are issues, as we indicated last week, that this court very well may, if this ever gets to the court, decide that actually the president does not have to show cause for those types of firings, but we’re not there yet.
Andrew Weissmann: Right, but keep an eye out, because that is definitely an issue that’s going to make its way to the Supreme Court. If not now, soon, this may be the vehicle, but if it’s not here, it’s going to come really soon. There are lots of sort of drumbeats that suggest that there are members of the Supreme Court who very much want to reconsider some of their prior decisions.
Mary McCord: That’s right. But I will note before we move on, though, that because he was not fired, Hampton Dellinger’s office issued some significant decisions in these last few days.
Andrew Weissmann: Exactly. So I was going to say that.
So Mary, while Mr. Dellinger is still in office because of this sort of temporary stay, at least, his office has issued some decisions. What has he done?
Mary McCord: He has issued decisions, I think with respect to six probationary employees that were fired without any reasons or rationale, and for a couple of different legal reasons, has said these appear to be unlawful, and this should be referred to the Merit Systems Protection Board, notably there, a member of that board, the head of that board, Kathy Harris, the president also attempted to fire. Well, said he fired her. She also sought a TRO. She also obtained that TRO and is still in that position while that gets litigated.
But the recommendation of Hampton Dellinger as a special counsel was that this matter of these six employees and potentially many other probationary employees be taken up by what’s called the MSPB because they appeared to be in violation of law.
Andrew Weissmann: So one of the things that’s talking about representations to the court, Judge Chutkan dropped a footnote in one of her recent decisions where she somewhat split the baby. She said, “On the merits, I think that there’s an appropriations violation in this case, but I’m not sure that their temporary restraining order is justified because I’m not sure there is sort of a reparable harm.” But she dropped a footnote with respect to the status of the DOGE and who is running it. And she not so obliquely said, “Counsel is reminded of their obligation to be truthful to the court.”
Mary, what was that about?
Mary McCord: Yes, well, in that case, she had asked, she’d questioned what is the role of Elon Musk? Who is in charge of DOGE right now? And she asked for there be a declaration filed. So declarations are things that get filed under oath by people who have knowledge, and they’re filed as sort of evidence in cases when the court wants more evidence. And it’s sort of, instead of having a hearing where the person testifies, you file it, it’s under oath. Sometimes it’s called a declaration. It’s similar to an affidavit, right?
And in this declaration, Joshua Fisher, the director of the Office of Administration, says that he is personally involved in the appointment of special government employees, and he has personal knowledge that Elon Musk is a special government employee. So that is a non-career temporary position. He says in that job, Mr. Musk is a senior advisor to the president, and then says it’s not uncommon for the president to have senior advisors who are SGEs. And it seems there’s no reason to add this, just throws out there, for instance, remember in his declaration, for instance, Anita Dunn was an influential senior advisor to President Biden while serving as an SGE. Footnote that I don’t think Anita Dunn was going around firing thousands and thousands of federal employees, but that’s a separate issue.
What then Mr. Fisher declares is that in this role as senior advisor to the president, Musk has, here we go, has no greater authority than other senior White House advisors. Like other senior White House advisors, Mr. Musk has no actual or formal authority to make government decisions himself. Mr. Musk can only advise the president and communicate the president’s directives.
He then concludes by saying that the U.S. DOGE Service is a component of the executive office of the president. The U.S. DOGE Service Temporary Organization is within the U.S. DOGE Service. Both are separate from the White House office. Musk is an employee in the White House office. He is not an employee of the U.S. DOGE Service or U.S. DOGE Service Temporary Organization.
And then finally, Mr. Musk is not the U.S. DOGE Service administrator. So who is?
Andrew Weissmann: Of course, the reason the judge dropped that footnote is that in announcing the creation of the DOGE, I think it was at that point, it was President-elect Trump. And certainly then while he’s been president, both the president, president-elect, and Elon Musk have talked about his, meaning Musk’s, running of the DOGE. Not to say that he issued the, “Tell me the five things you did last week” email which he is saying needs to be enforced, those five things.
Frankly, if you were one of the people getting that, you should say, “Well, I’m going to rely on the declaration in court that says he has no authority to do that anymore than Anita Dunn does.”
Mary McCord: That’s right.
Andrew Weissmann: And so, I mean, this is, it is really outrageous. Like, this is one where so many of the questions you and I get, Mary, is what happens when the White House and the Justice Department violates the law and you don’t have the Department of Justice in any way, shape, or form doing anything about it?
Mary McCord: Yes, I mean, you know, it’s the DOJ that had to go get this declaration from Mr. Fisher, and it’s the DOJ that has to stand up in court and answer these questions. And this happened again just, I think, yesterday in a hearing before Judge Kollar-Kotelly in a case challenging Musk’s position as potentially being a violation of the Appointments Clause, which we bookmarked that because we want to talk more about that. Remember, Judge Cannon dismissed the Mar-a-Lago case on the grounds that Jack Smith, the special counsel appointed as part of the Department of Justice in its investigation of Donald Trump, that he had not been appointed consistent with the Appointments Clause, and that was her reason for dismissing the case.
So this is sort of, these cases are efforts to say what Musk is doing is so significant, so high-level, you know, so directly impacting so many agencies of the executive branch, he should have had to be appointed under the Appointments Clause, which means Senate confirmation, right? Senate consent.
Andrew Weissmann: But we’ll come back to that because there’s a huge discrepancy between the Trump candidate position that Jack Smith is a principal officer, but DOGE is not. And by the way, who is Judge Kollar-Kotelly?
Mary McCord: So she is a judge on the D.C. District Court, like Judge Chutkan, very well-respected judge, and she repeatedly asked a lawyer for the government to identify the DOGE services administrator. He was unable to answer her.
She asked him, “What position Mr. Musk holds?” And he responded, “Mr. Musk is not the DOGE services administrator or even employee of the organization,” echoing what a White House official had declared in that separate case that I just had read to you. So we have the situation where what seems very much to be happening in the real world is not what the Department of Justice lawyers are telling courts.
And I feel a little bit bad for those lawyers because they’re being put in a really horrible position, although at some point they may say, “I’m not going to do this anymore because what you’re telling me, you superiors of me in the Department of Justice, what you’re telling me to represent to the courts doesn’t seem to be consistent with reality.”
Because remember, you mentioned that email that came out asking all federal employees to say five things that they did the previous week. That came out just hours after Donald Trump himself said, “He likes the job that Elon Musk is doing, but he thinks he should get even more aggressive.” And you’re telling me that this is a person who has no actual authority? That’s what you’re telling me in court? It doesn’t add up.
Andrew Weissmann: It reads like a shell game where it’s like, you know what, if we don’t give him that title and we don’t make him an employee, we get to file this declaration when in fact he is running DOGE. And so that’s just not how it works. That is why you’re hearing the courts ask this question and saying there’s candor that’s due. You’re not going to be able to get away with that in the court system.
Andrew Weissmann: Yes. And at least as reported by the New York Times, and I don’t have the official transcript, it has Judge Kollar-Kotelly quoted as saying, “It does seem to me if you have people that are not authorized to carry out some of these functions that they’re carrying out, that that does raise an issue. I would hope that by now we would know who is the administrator, who is the acting administrator, and what authority do they have.”
This is basic stuff. We have a new government entity and nobody knows who’s running. Except that we do know who’s running.
Andrew Weissmann: Exactly. I mean, to me, this is one where it’s like, we do know what’s going on, which is no one actually has those positions. It’s like he’s running it, it’s that they don’t want to give him that title and the judges are asking the question, because the answer is, we didn’t give him the title, but that’s what he’s doing. And I don’t know why they just don’t say that.
Mary McCord: I don’t know either.
Andrew Weissmann: He’s running it and we think it’s legally okay. I mean, this is candor.
Mary McCord: Heartbeat goes up.
Andrew Weissmann: Should we briefly just, one thing that I want people to keep an eye out for, the sort of looking forward, is the AP was kicked out of sort of White House briefings. That’s just a high level, there’s actually a little more nuance to that. They brought a challenge in federal court saying that it violates the First Amendment and it’s based on content. It’s based on the fact that they were not going to go along with calling the Gulf of Mexico, the Gulf of America, because that’s not its official name. And even though Donald Trump wants to call it that, the AP sort of drew a line.
And for many people, it’s like, that’s the line they’re saying we want to draw. And then they were kicked out.
And so there was a challenge based on the First Amendment. The key issue for the First Amendment is, is the government taking action based on content? Meaning, I don’t like what you are saying. It’s not even handed. It doesn’t matter if you’re pro or for, but there’s time, place, and manner restrictions, et cetera. And here they’re saying this is clearly based on content and they wanted a restraining order allowing them back in.
And this is an issue that is now going to be ongoing. Another federal district court judge, somebody who was actually nominated by Donald Trump, Trevor McFadden, heard this case. And he was very sympathetic on the merits of the case and strongly intimated to the White House that they really should be thinking about, do they want to continue this? Because look at the case law on this about content-based First Amendment.
Mary McCord: Viewpoint-based, right.
Andrew Weissmann: Exactly, but said, with respect to the injunction, the temporary relief said that because the AP can sort of still get information through other means, that he was not going to issue the temporary restraining order, but he was very concerned about the merits and he ordered some expedited hearing.
What’s interesting to me about this is you have a federal judge saying, essentially, I’m seeing a First Amendment violation here. What are you going to do about it? And this is the White House’s response. That’s a huge win and victory. I’m sorry, how is it a victory to have a federal judge who you appointed to the bench saying you’re violating the First Amendment?
Mary McCord: We’re suggesting, well, not a final ruling, just to be clear, but yes.
Andrew Weissmann: It’s not a final ruling. Exactly, but it was clear that he was sort of saying, if you go forward with this, if you looked at the case law, I mean, you can’t get a stronger hint than that.
Mary McCord: And you know, the Trump administration went through similar things the first time around when it took the press pass of Jim Acosta and others and got sued for it and ended up returning those press passes. They have a different strategy here, right? Rather than yank the press pass, it’s like, you just don’t get to go on Air Force One and you just don’t get to do these certain things.
They’re doing similar things at the Pentagon by removing some of the long-standard NBC, NPR, New York Times, who have their permanent places there where they have telephone lines and Wi-Fi that they’ve put in and cameras and recording equipment. And, you know, this is typical of the press pools who cover these departments of agencies and saying, ah, we’re shifting you out and putting some others in those spots. We haven’t cut your access off completely. We’re just taking away this access that you’ve had for decades.
Andrew Weissmann: And we’re putting in news organizations that are very, very friendly to us.
Mary McCord: That’s right.
Andrew Weissmann: And we’re not going to put in ones that I think are going to be more objective.
Mary McCord: That’s right.
Andrew Weissmann: So this is a huge continuation of an assault on the First Amendment. And it’s so bizarre because, I mean, the irony, of course, is that this administration talks about how they’re First Amendment friendly and that they want to protect the First Amendment and the assault on the First Amendment that they say occurred in the Biden administration.
So something to keep an eye out for. There is so much more to discuss, but I think we flagged some big issues, big things for people to keep an eye out for.
Mary, I’ll see you next year, which I mean a week from today.
Mary McCord: That’s right. Can we just call a timeout on everything for a week?
Andrew Weissmann: Yes, exactly.
Mary McCord: Yeah.
Andrew Weissmann: Thank you so much for listening. Remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free, as well as subscriber-only bonus content like the recent conversation Chris Hayes had with Jia Tolentino of “The New Yorker” about Chris’s new book, “The Sirens’ Call.”
Mary McCord: And remember to send us a question, you can leave us a voicemail at 917-342-2934, or you can email us at mainjusticequestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio 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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