After news this weekend that Columbia student and permanent legal resident Mahmoud Khalil was arrested by ICE agents, hosts Andrew Weissmann and Mary McCord explain the petition filed from his lawyer and the significance of his case as a harbinger of things to come, as a hearing is set over the effort to deport him. Then, they shift focus to the Trump administration’s continued attacks on law firms and universities themselves, after the president cut federal funding to Columbia, and Georgetown was rebuked by the DC US Attorney for teaching principles related to diversity, equity and inclusion. Last up, Andrew and Mary review the latest in the Eric Adams case, with a shocking court filing containing texts from prosecutors, and they break down a few cases making their way through the courts right now: some of which have been touched by SCOTUS, others likely on their way to the High Court.
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hello, and welcome to “Main Justice.” It is Tuesday morning, March 11th. I’m Andrew Weissmann and I’m here with the Mary McCord. And Mary I’m going to say hello, but I’m going to be like no chit chat. We have to get right to business because there’s so much to cover, including a story that broke last night that we want to cover first and foremost. But let me just do what I used to do in the U.S. Attorney’s Office when people would come in all hot and bothered and I’d start by going, hello, how is your weekend to sort of calm down.
Mary McCord: Yeah.
Andrew Weissmann: So, hi Mary.
Mary McCord: Well, I --
Andrew Weissmann: How are you?
Mary McCord: I think that I can’t tell you how many times in the last four hours that I’ve been up, I have said stop and take a deep breath, but then it doesn’t work a second later. I’m like, well, there’s too many things to talk about. How are we going to organize this? But you’re right. Many of us were tracking the arrest of a Palestinian student and lawful permanent resident of Columbia University, a man named Mahmoud Khalil who is now being detained pending deportation. A lot was heard about the rest on the weekend, but really didn’t realize he had been not only detained, but transferred to a detention facility in Louisiana and his lawyers have now filed a petition for habeas corpus to release him.
And we will talk about a lot of the ramifications for this because it’s really potentially the beginning of something that Donald Trump promised throughout his campaign and has been promising since he was elected, that students who were involved in protests about the conditions in Gaza would lose their student visas here. The difference here, of course, with Mr. Khalil is he’s also a lawful permanent resident. This is part of our theme for today and I know it’s part of the theme last week and the week before and the week before that, which is retribution.
So we’ll talk about this expanding retribution not only against Mr. Khalil from Columbia, but against Columbia university itself, against Georgetown University and other universities, blacklisting law firms, targeting again more of the senior leadership at the Department of Justice for either firing or removal. And then we’ll come back to the courts and talk about the filings in the Eric Adams case, which have their own retribution angle to them, as well as some developments that now seem like old news, Andrew, including the five to four SCOTUS decision that happened the day after we recorded last week. And now we have a full opinion from Judge Ali in the case involving the termination of foreign aid.
We have a full preliminary injunction opinion that came out last night. And so we will give a little bit of an overview of sort of the status of some of the big cases that have either already been to the Supreme Court or are likely to get there. So, whew, I’m worn out even just going through the roadmap.
Andrew Weissmann: Mary, so much of what we’re going to talk about today is resonant for me when I think back to “A Man for All Seasons,” which is about sir Thomas Moore and talking about the need to stand upright in the wind and the importance of the rule of law. And spoiler alert for everyone, we have planned on reading from a particular passage that I think is so important for our times.
Mary McCord: Yeah.
Andrew Weissmann: Okay. Let’s start by talking about Mr. Khalil’s case. Let me do a level set about who he is and what we know about him and what the status of the legal case is. Mr. Khalil is a student at Columbia University. Importantly, he is a lawful permanent resident. (Inaudible) mystically called an LPR. I think the way that the government looks at this is a lawful temporary resident, but that’s not the status. It’s a lawful permanent resident and he is married to a U.S. citizen. Interesting factoid, his wife is pregnant and is going to give birth next month.
Mary McCord: Right.
Andrew Weissmann: On March 8th, what we know from the petition that was filed by his immigration counsel in the criminal case is that agents from the Department of Homeland Security arrested Mr. Khalil with no notice whatsoever. So we have the habeas petition, the filing by the immigration lawyer who was on the phone at various times with the agents from the Department of Homeland Security. And I’m going to quote from that petition where the lawyer says that the agents said that they were detaining Mr. Khalil because, quote, “his student visa had been revoked by the United States Department of State,” unquote.
Here’s the rub, if that is accurate, is that he’s not here on a student visa, he’s a lawful permanent resident. Either it’s not just a visa to temporarily come in the country, but he’s a citizen of another country and he has no status here other than that visa. He actually has a green card and is a lawful permanent resident. And so there’s some technical differences with respect to the government’s ability to remove somebody and do this. One of the things that’s interesting here is there’s no allegation that he was at risk of flight, that he needed to be arrested immediately as opposed to just give notice and have the proceeding.
Mary McCord: No allegation also just let’s be clear, of any crime that he had committed. No probable cause of a criminal offense. This was not a judicial warrant --
Andrew Weissmann: That we’re aware of. Right.
Mary McCord: I mean that day they weren’t --
Andrew Weissmann: Right.
Mary McCord: -- he was not presented with an arrest warrant signed by a judge. This was purely an immigration matter.
Andrew Weissmann: Right. And so he was arrested and he was essentially taken from New York to New Jersey to, as you said, to Louisiana, where he is currently held. Lawyers then filed what this writ of habeas Corpus, which is sort of for the body.
Mary McCord: Right.
Andrew Weissmann: It is a legal term that’s an important constitutional and statutory provision. And --
Mary McCord: It’s about the body is referring to get the body out of detention, right?
Andrew Weissmann: Corpus, yes.
Mary McCord: Get the body out of detention.
Andrew Weissmann: Yep. And that is before Judge Jesse Furman in the Southern District of New York. There’s a whole issue about venue and location where it’s not worth our getting into, but it may become an issue. And the judge has said that he wants to hear from the parties on March 12th. So although this feels like it’s four years from now --
Mary McCord: Yeah.
Andrew Weissmann: -- it is actually, I guess, tomorrow, Mary.
Mary McCord: Yeah. Otherwise known as tomorrow.
Andrew Weissmann: Right. And he wants papers today by 5:00 p.m. And importantly, he has ruled that to preserve the court’s jurisdiction, pending a ruling on the petition, petitioner that is Mr. Khalil, shall not be removed from the United States unless and until the court orders otherwise. So there now is an injunction under the All Writs Act that is prohibiting the government from removing Mr. Khalil to any place outside of the country, including Gitmo, Guantanamo. So it basically says you can hold him for now, but you can’t move him out of the country pending this hearing.
And Mary I’m going to tee it up for you, but I think the way I look at this, big picture to me is does the government have specific facts that would suggest that there is some criminal activity, that there is some material support, for instance, or a terrorist organization. Is there something that Mr. Khalil has done that they can prove, or is this a matter where the actions being taken because of protected First Amendment activity? Mr. Khalil was involved in various protests at Columbia. That is not a crime. That is constitutionally protected. And that’s where his status becomes important because as a lawful permanent resident, like anybody in this country lives here legally, actually, even people who aren’t are entitled to engage in First Amendment protected activity. And so that is going to be the rub. So you have a huge clash between the executive’s ability to control who’s in the country and who’s not in the country and immigration control and First Amendment rights.
Mary McCord: Yes. Yes to all that. But just to start where you ended with the reason for this action being taken against Mr. Khalil, I want to read the post of the president about this, his social media post. He says, “Following my previously signed executive orders, ICE proudly apprehended and detained, Mahmoud Khalil, a radical foreign pro-Hamas student on the campus of Columbia University. This is the first arrest of many to come. We know there are more students at Columbia and other universities across the country who have engaged in pro terrorists, anti-Semitic, anti-American activity and the Trump administration will not tolerate that. Many are not students they’re paid agitators. We will find apprehend and deport these terrorist sympathizers from our country, never to return again. If you support terrorism, including the slaughtering of innocent men, women, and children, your presence is contrary to our national and foreign policy interests and you are not welcome here. We expect every one of America’s colleges and universities to comply.”
So this gives us some clues about what the government is likely to say in response to the arguments that the petition for habeas corpus is making. That petition is based on First Amendment that Mr. Khalil’s speech on the campus of Columbia University, speaking out against what he saw as Israel’s genocide in Gaza and the role of Columbia University in financing and in other ways, facilitating genocide in his view, these things are protected speech in the United States even if you’re here as a lawful permanent resident or on a student visa. In other words, you don’t have to be a citizen to get those protections.
And so the petition is based on this retaliation for his exercise of First Amendment rights.
Andrew Weissmann: Mary, just so people understand, you can be, and I’m sure many of our listeners, and maybe all of our listeners can be like, I think that what this person’s speaking about is wrong.
Mary McCord: Hundred percent.
Andrew Weissmann: Or let’s just take anti-Semitism. You could have many people going, you know what? I think that’s heinous and awful and I don’t stand for that and it’s against my views and it’s against what America views. But if it’s just speech and it’s not action where you are promoting something that’s a crime and you are just advocating something, I might disagree with it to the ends of the earth, but you have a right to say it.
Mary McCord: That’s right. It’s protected.
Andrew Weissmann: And that’s the issue. So I want to make sure people understand in no way are we supporting or not supporting the views. What we are saying is if it’s protected First Amendment activity, we all enjoy that. We all have the ability to voice our views. Even if you find it completely repugnant. And you don’t get to just say, well, we’re going to rid people in this country just because we don’t like what they’re saying.
Mary McCord: Right. And also on that point to be clear again, if there was evidence of actual material support to a foreign terrorist organization, Hamas is a foreign terrorist organization.
Andrew Weissmann: Absolutely.
Mary McCord: I mean, these are things that would definitely be qualifying. And so there are things that Donald Trump’s --
Andrew Weissmann: And qualifying --
Mary McCord: -- qualifying for deportation, right?
Andrew Weissmann: Exactly.
Mary McCord: Actually also if it was criminal qualifying to actually charge a crime. And so there are things that Donald Trump said in his post that if true might feel very differently, but there’s no suggestion right now that there’s actually anything that would be sort of material support to a foreign terrorist organization. However, and this is I think, where we need to go with this because the law is a little bit different when it comes to, and I’m going to use this term because this is the term in the statute, aliens present in the United States including lawful permanent residents because our Immigration Naturalization Act still considers anyone who’s not a citizen to be an alien, even if they’re here lawfully, right, and even if they’re on that lawful permanent resident status.
But that law does allow for deportation on something short of criminal violations, something short of criminally providing material support to a foreign terrorist organization. And I should say also of course, as we’ve discussed in other episodes being here unlawfully, right, without lawful status also makes a person subject to deportation even though that unlawful presence is not necessarily a crime. Here we’re talking about though somebody who has lawful presence here and is now subject or being threatened with deportation. In fact, the ICE agent at the time of arrest reportedly, according to the petition told Mr. Khalil’s wife that when he reported on the phone that Mr. Khalil had a green card, he was told that had been revoked. And we’ll see if that had actually been revoked, but there is a mechanism --
Andrew Weissmann: Yeah.
Mary McCord: -- under immigration law for, and this is just what it says, an alien whose presence or activities in the United States, the Secretary of State, that would be Marco Rubio, has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable. Now again, no one at the time of arrest, at least according to this petition for habeas Corpus, no agent said to Mr. Khalil or his wife that the Secretary of State had made such a determination, but given some of the verbiage in Donald Trump’s social media posts, and I can’t believe I’m even saying this because to think that his social media post would actually be connected to a potential legal argument would be a dramatic difference from any of his social media posts. But some of that verbiage used there does seem to track this language of serious adverse foreign policy consequences.
Andrew Weissmann: But I do think the thing for the audience to keep track of is one factually what Mary you’re saying is factually is the government going to have proof of something more than speech?
Mary McCord: Yeah.
Andrew Weissmann: That’s sort of a key thing. And Donald Trump’s tweet is very, very ambiguous on that to say he supports Hamas --
Mary McCord: Right. Right, right.
Andrew Weissmann: -- doesn’t you know --
Mary McCord: It’s conclusory. Yeah, yeah, yeah.
Andrew Weissmann: Right. So, A, keep your eye on what are the facts that actually get presented to Judge Furman. The second is the legal issue depending obviously what the facts are because you do have this provision about what the Secretary of State can do, but to the extent that it is based on First Amendment activity and only First Amendment activity, you will have the clean legal issue of does that provision in a statute, does it violate the constitution? Because of course, statutes are subordinate to the constitution. They’ll point to the constitution.
So you could have this conflict between what the statute says the Secretary of State can do and what the constitution provides. So to me, those are sort of key issues to keep an eye on. We are expecting the filing that the judge required later today and then the court hearing. So all happening very, very quickly. And then Mary, as you said, because it’s clear, this is a little canary in the coal mine, the reason we’re starting with this is it’s not just about one person here. The president of the United States has said, clearly this is a harbinger of things to come. And so all eyes for us are very much on what it is that Judge Furman is going to do and what the position of the government’s going to be factually.
Mary, should we take a quick break and then we have such a related topic, which is essentially it’s the continuation of retribution and talking about the attack on Columbia University itself. There’s Georgetown, there’s the Department of Justice. Their defense counsel sort of panoply of action. So how about we take a quick, quick, quick break and come back and tackle all of those issues.
Mary McCord: All of those things.
Andrew Weissmann: Three minute.
Mary McCord: That’s right.
Andrew Weissmann: Three minutes or less.
Mary McCord: Let’s do it.
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Mary McCord: Welcome back. We’re continuing right where we left off. As Andrew was saying, we want to examine a little bit more about these attempts to use executive authority in some ways, in many ways, related to the desire for retribution and other just simply the desire for power. We talked about the arrest of Mahmoud Khalil, but this was just part as Donald Trump said in his social media post of what is intended to be the first of many, and that is consistent with Donald Trump’s presidential action called additional measures to combat anti-Semitism.
It certainly has various statements in this about how all available and appropriate legal tools should be used to respond to anti-Semitism. But it’s particularly targeted here at universities, including specific to what just happened over the weekend, that the Secretary of State, Secretary of Education and Secretary of Homeland Security are supposed to make recommendations for familiarizing institutions of higher education with the grounds for inadmissibility. That’s the same as deportation under the statutes we were talking about in the first segment today, so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds and for ensuring that such reports about aliens lead as appropriate and consistent with applicable law to investigations and if warranted, actions to remove such aliens.
Now, obviously this is worded a little bit more legally and circumscribed by applicable law, then the president’s social media post. But the idea is very clear, colleges and universities, you are on notice that your students, staff might be deportable if they engage in activity, that is anti-Semitic and you better do something about it. And this arrest on Columbia, I think was one of the sort of first shots across the bow. But we also saw last week, a presidential action withholding some $400 million of federal funding to Columbia University and adding, I think something like nine other universities to lists that were going to be scrutinized with respect to any federal funding that they may get.
And I should just be clear universities, public and private get lots and lots of federal funding. Much of this is for research without which we frankly would not be where we are in this country in terms of our innovation and not only the medical area, technology, so many areas where it’s research that begins on college campuses that ends up becoming the things that keep us healthier, keep us safer when it comes to public transportation and airplanes. Anyway, research is super important.
Andrew Weissmann: Can I just say something about --
Mary McCord: Yeah.
Andrew Weissmann: -- and iron you there, which is the president saying, oh, by the way, for the FAA, we should just be hiring people from MIT at the same time that he is like, and now I want to basically attack all sort of elitist institutions.
Mary McCord: That’s right.
Andrew Weissmann: Except when they turn out smart people who are going to be making sure that our planes are safe, but at the same time, he’s then gutting the --
Mary McCord: The FAA.
Andrew Weissmann: -- air traffic through the FAA. I mean, it’s like, there’s no coherent story here. Can I, Mary, just chime in with a --
Mary McCord: Yes, please.
Andrew Weissmann: -- because part of in addition to the executive order, the interim U.S. Attorney, Edward Martin in D.C., published a letter, sent it to Georgetown, asking all sorts of questions about their curriculum and making a point that this is what the dean of Georgetown says. The letter said --
Andrew Weissmann: But hang on. You got to say what Ed Martin says because it’s just so unbelievable to me before you go to the dean’s response, which was pitch perfect and this is my dean, by the way.
Andrew Weissmann: Yeah.
Mary McCord: I teach at Georgetown law. So obviously I’m a little biased, full disclosure.
Andrew Weissmann: By the way, it’s so funny because we’re talking about Columbia, my alma mater.
Mary McCord: I know.
Andrew Weissmann: And Georgetown --
Mary McCord: Oh, my gosh. Yes. Right.
Andrew Weissmann: And where you teach.
Mary McCord: And this of course was not about anti-Semitism. This was about DEI, right.
Andrew Weissmann: Right. So Mary, what’s your favorite part of what your interim U.S. Attorney --
Mary McCord: Yeah. Oh gosh --
Andrew Weissmann: -- was saying.
Mary McCord: There I’m disavowing, but anyway.
Andrew Weissmann: Yes.
Mary McCord: Yeah. So, favorite is not really the right descriptor because it’s just kind of jaw dropping except that everything these days is jaw dropping. “It has come to my attention, reliably, that Georgetown Law School continues to teach and promote DEI. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions.” This is in the letter verbatim as published from the interim U.S. Attorney, Ed Martin, to Dean Bill Treanor at Georgetown Law. Here are his questions.
First, have you eliminated all DEI from your school and its curriculum? Second, if DEI is found in your courses or teaching in any way, will you move swiftly to remove it? Then he says, you should know no applicant for our fellows program, our summer internships, or employment in our office or employment in our office who’s a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.
This is the letter that the dean got. And why am I kind of my jaw dropping? Many reasons. First of all, the U.S. Attorney, this is really not his job --
Andrew Weissmann: Yeah.
Mary McCord: -- number. Right?
Andrew Weissmann: Yeah.
Mary McCord: You’re going to investigate.
Andrew Weissmann: So let’s talk about the dean’s response --
Mary McCord: Yes.
Andrew Weissmann: -- because it sort of hits all of that. I’m going to quote from parts of it because it’s just so perfect.
Mary McCord: Yes.
Andrew Weissmann: “Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear as is the attack on this university’s mission as a Jesuit and Catholic institution.”
And there, the letter continues, “As a Catholic and Jesuit institution, Georgetown University was founded on the principle that’s serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution.”
And so it goes on about that and it really in many ways says, first of all, while you are attacking DEI, that is our mission. And that is something that is part of our core principles as an institution. And basically says while you’re attacking DEI, this is me now giving the gloss on this. That is what true religious principles entail. I mean, do unto others as you would do unto yourself. The idea of diversity and inclusion. I’m not a biblical scholar, but I think that is a sentiment that is common to many, many, many religious faiths. And so the idea that DEI is taken on as some negative word, it is so powerful to have the dean at Georgetown say this is a core part of Western philosophy and religious faith and it’s so it makes it so powerful.
Mary McCord: Agree. But to be clear, this is not limited to private universities that --
Andrew Weissmann: Not at all.
Andrew Weissmann: -- are Jesuit or have some other tie to a denomination. And Georgetown for those who don’t know, yes, it was founded by Jesuits and that velocity very much permeates, but obviously students and faculty from all religions or no religion at all attend there, right? So the other important things was it’s not just about religious freedom. It’s also about freedom of speech, academic freedom. As the Dean says in his letter, the First Amendment guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has --
Andrew Weissmann: And that’s the connection to our first discussion about Khalil, which is --
Mary McCord: Right.
Andrew Weissmann: -- is this conduct or is its speech. I just make sure that everyone understands that the letter to Georgetown and the action with the spectrum Mr. Khalil raised the exact same issue is are you going beyond First Amendment speech where there’s action that is problematic or is it just an attack on people espousing their First Amendment views, which is unconstitutional.
Mary McCord: And to be clear, what would be beyond in the case of a university? So when I said the interim U.S. Attorney has no business looking into this, it would be different if Georgetown was alleged to be violating laws, right? Like violating anti-civil rights laws, anti-discrimination laws, discriminating based on a protected class and things like that. Now, even there, it’s more complicated with a private institution, but still those are things you can’t do. Private institutions cannot discriminate on the basis of race, sex, et cetera.
So if Mr. Martin was saying we have reason to believe Georgetown may be violating federal civil rights law, please answer the following questions. Maybe that would be within the scope of his authorities, but that’s not what he’s saying at all. He’s saying, have you eliminated all DEI from your school and its curriculum? And if not, if any of your courses are teaching it in any way, will you move swiftly to remove it? First of all, what does even mean DEI? Are you teaching any DEI? He doesn’t define that term. What is that? And moreover, as the point you were just making, without some sort of allegation of a violation of law, or even suggestion that anything within DEI violates the law, this is just treading upon the First Amendment rights of the university, its faculty, and its students. So, I think many of us at the university and others outside were very proud to see the dean take this position in this letter.
Andrew Weissmann: Absolutely.
Mary McCord: I have not heard anything since then and I guess we will see, you know, what comes next.
Andrew Weissmann: So in the same sort of bucket in different ways, there have also been attacks on defense lawyers who sought an attack on Covington and Burling for representing Jack Smith. Irony of all ironies is that this president of all people should know the importance of defense counsel. A matter of fact, he seems to think they’re so important that they are now the attorney general, the deputy attorney general and the principal deputy attorney general are all his former counsel, personal counsel. And this is just a perfect emblematic example of the president being transactional, as opposed to principled.
If you were principled, you’d be thinking, oh, this is the importance of defense counsel. When they were defending me, no one attacked them and said that they shouldn’t be counsel, that they’re undermining democracy. There is somehow should be attacked for simply being defense counsel. These are lawyers who have a mission, as long as they stay within good faith and they’re not doing something in bad faith, that’s their obligation is to zealously advocate for their client.
But he’s not looking at that way. He’s looking at it like, no, no, no, it’s not. There’s no principle here. It’s just transactional, which is that was good because they were doing it for me. But when they’re doing it for someone else and I don’t like that person or I disagree with them, that’s bad. And that is just the antithesis of the rule of law. That is what it means to say we’re a rule of law country versus law of the jungle country.
Mary McCord: And now he’s gone another step, right?
Andrew Weissmann: Exactly.
Mary McCord: That was attacking and trying to again, seek retribution for any attorneys that would represent Jack Smith. Now he’s got another step. He has an executive --
Andrew Weissmann: Exactly.
Mary McCord: -- order. That’s actually calls out a law firm in its title, addressing risks from Perkins Coie LLP. And this is an order that goes for three pages when printed out, starting out talking about the dishonest and dangerous activity of the law firm, Perkins Coie LLP and he points specifically to three things that, that law firm hired Fusion GPS, which was an opposition research company that did opposition research, frankly, first by primary opponents of Donald Trump. And later after Donald Trump got the nomination, we’re talking back in 2016 for Hillary Clinton’s campaign. Opposition research, which every campaign in every presidential election hires people to do opposition research. What can you dig up about my opponent that might be useful to my campaign?
Second, they criticize Perkins Coie for working with, quote, “activist donors,” including George Soros to judicially overturn popular, necessary, and democratically enacted election laws including --
Andrew Weissmann: By the way, sorry to interrupt. But George Soros triggered me and that we just talked about the administration claiming that it’s against anti-Semitism, but the George Soros stuff is not even a dog whistle anymore.
Mary McCord: Yeah. There’s a little asterisks there, right, except for Soros, right? And so basically criticizing now for bringing lawsuits to challenge Donald Trump thinks of as necessary and popular election laws, including those requiring voter identification. We’re talking again about lawsuits brought to challenge various efforts by state legislatures and others to restrict voting rights. I’m not going to be specific as to voter ID laws, but lots of things, as everyone saw in the last election, this is a legitimate way, right, of trying to challenge something that you think is unlawful. You bring a case in court, but nope, this is dangerous according to the president.
And finally the kicker on it and how it relates, I think, to some of the actions against universities is the allegation that Perkins Coie racially discriminates against its own attorneys and staff and against applicants. And what is the rationale behind that, that they have percentage quotas allegedly in 2019 for hiring and promotion on the basis of race and other categories prohibited by civil rights laws. So because of these three, what’s the word I even put on them.
Andrew Weissmann: Allegations. Allegations.
Mary McCord: Allegations. I was going to be more inflammatory, but okay. Because of these things, Perkins Coie is essentially just being blacklisted, right?
Andrew Weissmann: Perfect word, Mary. That is the perfect word.
Mary McCord: There’s no other description of this, right? Review and take away security clearance as of the attorneys there. We saw this again, back when we were talking about Covington and the attorneys representing Jack Smith. Review any federal like goods or property or use of a skiff that the attorneys might have to use as part of their litigation, take that away, make sure there’s no government contracts or any other business relationships with Perkins Coie and review all other government contracts to make sure nobody that has a contract with the government also does business with Perkins Coie.
Andrew Weissmann: And don’t hire people from Perkins Coie.
Mary McCord: That’s right. Kind of just like the Ed Martin threat to Georgetown University. Don’t hire people from Perkins Coie and then to just know that this is not going to end there. The expansion of this is that this executive order tasks the chair of the Equal Employment Opportunity Commission to review the practices of representative, large influential, or industry leading law firms for consistency with the civil rights act, including whether such large law firms reserve certain positions, such as summer associate spots for individuals of preferred races, promote individuals on a discriminatory basis, permit client access on a discriminatory basis, or even provide access to events or trainings or travel on is discriminatory basis.
Now, again, violations of civil rights laws is wrong and I condemn it, but this is a threat. Like if you engage in DEI, if you have tried to take measures to encourage the hiring of historically underrepresented minorities in the legal business, we’re going to take a close look at you and you better stop that.
Andrew Weissmann: Absolutely. And it’s so clearly, as we saw with what happened with Covington, as we saw what happened with respect to Columbia and Georgetown, what’s happening with Perkins Coie is its saying everyone be aware of this because you are next. And so --
Mary McCord: Right.
Andrew Weissmann: -- one of the things that we have talked about on air, I just was talking to Nicolle Wallace about this, is that if there’s any time for a sort of, I am Spartacus moment, it is now because the whole strategy is to divide and conquer. And for those people are sticking their head in the sand. I don’t know what they’re thinking because if you don’t have a sort of NATO approach to this, which is it’s all for one and one for all, that is the beginning of the end. And so this is a real strategy that autocrats undertake. And if this was legitimate, it would just be done in such a different way.
Mary McCord: Right.
Andrew Weissmann: If you were going to have a conversation about, you know what, we think that certain policies are violating our view of the --
Mary McCord: Go too far, right.
Andrew Weissmann: -- civil rights laws and we have a different view and we think the line is different. You would have a very different conversation and it wouldn’t be --
Mary McCord: Blacklisting.
Andrew Weissmann: Exactly. And it just wouldn’t be done this way.
Mary McCord: Yeah.
Andrew Weissmann: And especially at the Department of Justice. So this is something, again, everyone should keep their eye out on the attack on the academy and the attack on this student. And I know some people might be going well, why should I really care? It’s because it really goes to our First Amendment freedoms.
Mary McCord: And it’s just a snowball effect, right?
Andrew Weissmann: And that’s where I do think, and again, I think Mary, you and I are such institutionalists, but I do think that Americas have not signed up for that. I see it in the town halls that have been getting lots of coverage and that apparently the various members of Congress are now not even having, where people are voicing their views. Imagine if they were told, oh, by the way, it’s now a crime to voice your views and --
Mary McCord: Yeah.
Andrew Weissmann: -- we’re going to attack you for it. It is a crime essentially. You’re not allowed to say that you disagree with us. Well, people didn’t sign them for that. And so this is going to be very much a crash course in constitutional law for this country given the executive action. But there’s a lot more to say about this, but we’re going to now take another break and come back and talk about the courts.
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Mary McCord: Welcome back. As promised, we are going to go back to New York for the developments in the Eric Adams case. Now, before we get into the part of this that I think you and I both think is in many ways, the most interesting listeners will recall that briefs were due on the 7th of March. Briefs before Judge Ho, who is considering the government’s motion to dismiss the criminal case against Mayor Adams without prejudice. He appointed an amicus that is a friend of the court, Paul Clement, to file a brief sort of on the behalf of the public interest. Since here we have both the government and the defendant, Mr. Adams, Mayor Adams in alignment about dismissal. So this was appointing somebody outside to sort of take a view of the public interest.
Paul Clement filed his brief on Friday. I thought it was a very strong brief that says, look, having to get leave of the court to dismiss is an important thing, and that has some teeth to it. But the remedy is limited to deciding what means of dismissal is appropriate with or without prejudice. And here he argues because having a dismissal without prejudice of a criminal case against a public official, who remains in office really gives such an appearance of that sword of Damocles over the head of that public official, it wouldn’t be appropriate here. And so dismissal with prejudice is appropriate.
I think we weren’t too surprised about that. He had concerns to go any further and say, no, I’m ordering you to prosecute this case and I’ll appoint a special prosecutor. Mr. Clement had concerns about how that would impact separation of powers. Mr. Adams, himself, or his part, and I think we discussed this last week --
Andrew Weissmann: Yeah. Yup.
Mary McCord: -- moved did to dismiss with prejudice saying now, I’ve got the government itself as saying this was an unfounded case. So he is maintaining that position with prejudice, but in came the United States in support of their motion to dismiss without prejudice and made some expected arguments and then did some other things, Andrew, which hopefully you will talk about.
Andrew Weissmann: Yeah. So it’s really interesting. I mean, as we talked about last week, I sort of thought that with Paul Clement saying dismiss with prejudice, so you don’t have this choke chain. And then Eric Adams, very belatedly saying that too, that this was going to be the off-ramp so that you could avoid a hearing. And the government’s response was so devoid of in many ways, dealing with sort of the facts on the other side and just says, you know what, we’re just going to put our head in the sand and the only facts that matter are like what we told you and what happened in court. And all of the other facts are sort of extraneous either you can’t consider them or legally irrelevant.
I was a little surprised that Paul Clement didn’t make more of those facts because it’s so hideous. I just thought there should have been more said about that because you have the incredible prospect of all of these people at the Southern District of New York and at Main justice resigning over this. So here’s what, what has happened. Two other prosecutors that has been reported were summarily frogmarched out of the office with no apparent allegation of them doing anything wrong, other than having worked on this case. And like the idea of doing that with career people is just unheard of.
But what you’re referring to, Mary, is that one of the most unusual aspects was the government’s brief does not in any way, say for instance, what happened in the meeting with Eric Adams and Danielle Sassoon and her people in Emil Bove’s office where there’s a lot of dispute about whether there was this quid pro quo or not. And nothing said about that. Nothing said about what the notes are that Emil Bove apparently ordered to be taken from the Southern District prosecutors and what those reveal, nothing said about that.
Instead you have this scorched earth approach, which in addition to the legal arguments, the government submission, which by the way, is only signed by the deputy attorney general. Todd Blanche and Emil Bove, no career people have signed this. That is so unusual.
Mary McCord: Yes.
Andrew Weissmann: I don’t think I’ve ever seen that. That you only have those two people who a minute and 32 seconds ago or more appropriately in this situation, a New York minute.
Mary McCord: New York minute.
Andrew Weissmann: Exactly. True. A New York minute ago, Todd Blanche and Emil Bove were criminal defense lawyers for Donald Trump in New York that they signed this brief, which basically goes to town on what the drafts of Danielle Sassoon’s letter were or their speculation about the prior U.S. attorney and whether he was motivated to bring this case for political reasons or not. And that they, for instance, shouldn’t speculate about what his reasons or his reasons weren’t in why the prior U.S. attorney would’ve been interested in this case. In other words, was he interested in political office or not? And by the way, there’s nothing wrong with being interested in political office. It obviously just can’t affect the case in terms of why you bring it or why you cannot.
Or why one of the attorneys on the case, somebody just says, hey, are you ever thinking of going to be on the bench as a judge? And so sort of was like, no, I’m going to focus on this case first. I can’t think of anything else. Like all of that got laid out with the most sinister twist on it to basically say, look at all of this dirt that’s going on. That’s usually not material that the government makes public protected by --
Mary McCord: It’s internal discussions --
Andrew Weissmann: Exactly, deliberations.
Mary McCord: -- of an ongoing criminal case. And one point you left out is these include text messages, right, which means --
Andrew Weissmann: -- Yeah.
Mary McCord: -- they took the government cell phones of these attorneys granted. They are not your property when you’re in a government attorney.
Andrew Weissmann: Yeah.
Mary McCord: You know that it can be searched at any time, but even still it’s a little shocking to think they took their phones. They went through their phones. They pulled out text messages from their phones that they thought could support this dirt as you were saying, and put these messages in to this filing in a court of law. It’s kind of like all the dirty laundry, right, that you usually keep in the hamper --
Andrew Weissmann: Exactly.
Mary McCord: -- and you don’t show the public. It’s all being shown to the public. And I think you’re right though. I read them and I’m like, these really don’t prove anything. It’s them saying we want to distance ourselves from criticism against the former U.S. attorney who’s been criticized for being political. Maybe he did have political motivation. So we want to distance our prosecution from that. To me that’s like, make sense.
Andrew Weissmann: Mary, you and I talked about when we heard that Todd Blanche and Emil Bove were going to be in these new positions that we thought maybe their tone and the things that they were doing as defense counsel would be different when they had a different role at the Justice Department, and this signals absolutely not. I mean, my view there is --
Mary McCord: That’s right.
Andrew Weissmann: -- no judgment at all. It’s not like there was some smoking gun here, nor if you’re going to go down that road of expanding, you’re telling the judge only consider what we told you, except by the way, the dirt that we’re about to put in --
Mary McCord: That’s right.
Andrew Weissmann: And now we want you to consider that. But if you’re allowed to consider that, the elephant in the room is what happened at the meeting with Emil Bove that he’s so concerned about. They took the notes from the prosecutors. So I mean, you can’t have it both ways. So it just read is so tawdry, but the big, big picture is not just sort of their conduct and behavior of Todd Blanche and Emil Bove and the way they presented this. It’s that they are seeking to use the criminal system to have this choke chain in a way that is again, if permitted, they are handing a loaded gun to the administration to get people to do their bidding.
Mary McCord: Is this a good time for the Sir Thomas More quote?
Andrew Weissmann: I love it, Mary. I am old enough to remember seeing a man for all seasons, which is a terrific movie. So Mary, you want to start us off? We’re going to quote from it.
Mary McCord: So I’ll be William Roper and you’ll be Sir Thomas More.
Andrew Weissmann: Okay.
Mary McCord: So now you give the devil the benefit of the law.
Andrew Weissmann: Yes. What would you do? Cut a great road through the law to get after the devil?
Mary McCord: Yes. I’d cut down every law in England to do that.
Andrew Weissmann: Oh? And when the last law was down and the devil turned around on you, where would you hide Roper? The law is all being flat. This country is planted thick with laws from coast to coast. Man’s laws, not gods. And if you cut them down and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes. I’d give the devil benefit of the law for my own safety sake. So Mary let’s end on this. What are you looking at in the Supreme Court in terms of cases involving the alphabet soup time --
Mary McCord: Yes.
Andrew Weissmann: -- NSLB and MSPB, merit system protection board. What are you looking --
Mary McCord: NLRB and MSPB.
Andrew Weissmann: Oh, sorry. Exactly. This is by the way, this is like the problem. Yeah, I’ve been out of Washington too long.
Mary McCord: Right. So we of course have talked before about the Hampton Dellinger case, which has now been dismissed by Mr. Dellinger himself. This was where he was challenging. Trump firing him as the single head of an independent agency. That issue is one that hadn’t reached the Supreme Court, I think, that the lot of court watchers thought that that might have been a loss for Mr. Dellinger and so he has actually dismissed that case at the point when it was in the D.C. Circuit Court of Appeals.
The other issue that remains very open though, when it comes to firing heads of independent agencies, is the issue we have talked about a few other times, which is that the Supreme Court has carved out for, gosh, it’s getting, I guess in close to a century, carved out an exception to presidential authority to fire executive branch officials, carved out an exception for multi-member boards of independent agencies, where Congress requires they can only be fired by cause. The Supreme Court has upheld that and has said that the president would need cause for that firing.
We now have two different cases. One where a member of the NLRB was fired without cause, one where the chair of the MSPB was fired without cause. That is National Labor Relations Board and Merit Systems Protections Board, both independent agencies, both led by multi-member boards. These issues we’ve had judges now rule against the Trump administration on these two firings. These will proceed up to the Court of Appeals. These are issues that are likely to then get to the Supreme Court.
And this is where the solicitor general of the United States has given notice already that the United States is not going to continue to defend that old case called Humphrey’s executor. The case where the Supreme Court first established that Congress could require four cause for the termination of multi-member boards. That means this SG is going to say Supreme Court, if, and when it gets there, and I suspect that it will, that there is no such exception. The president under his Article II authority has plenary, as we keep saying, based on the immunity decision, conclusive and preclusive authority over the firing of executive branch officials, and those firings should be upheld. That’s on my bingo card prediction.
The other thing I just want to flag because we did not get a chance to talk about it. It happened after our last recording is that the Supreme court last Wednesday, in a case about the freezing of funds for the payment for foreign aid, this is a case of course, about the administration of foreign aid appropriated by Congress to fund grants that are distributed by USAID and other State Department entities. And this is related to the abrupt cutoff of payments to many, many different nonprofits that do foreign aid work pursuant to grants by the U.S. government.
That is a case where a judge of the district court here in the District of Columbia, Judge Amir Ali had granted a temporary restraining order requiring the payment of already incurred expenses like grants already fulfilled up through February 13th, the payment of those invoices for those monies that were due. That is an issue that the administration took up to the Supreme Court and asked the Supreme Court to stay that ruling. And in a 5-4 decision last Wednesday, the Supreme Court refused to stay that ruling.
This decision was just a very brief unsigned decision by the five, which included not only Justice Sotomayor and Kagan and Jackson, but also justice Amy Coney Barrett, and the Chief Justice, simply said this application is denied given the deadline that the TRO’s challenged order had already been passed. And in light of ongoing preliminary injunction proceedings, the district court should clarify what obligations the government must fulfill to ensure compliance with the temporary restraining order and with due regard for the feasibility of any compliance timelines. I’ll note, there was a more lengthy dissent.
Andrew Weissmann: So this is like a perfect thing there to sort of end on because this is the issue that in various permutations, whether it has to do with funding, whether it has to do with firings, whether it has to do with the relationship to people’s individual rights, to congressional rights and their role, all of that is very much going to be front and center in the Supreme Court because you have an executive that is testing boundaries and is going to go as far as he can possibly go until someone tells him he can’t.
Mary McCord: Yeah.
Andrew Weissmann: And that is going to be an issue then for the Supreme Court. My eyes are all on the Chief Justice, but there that’s a to be continued because I think Amy Coney Barrett has sort of signaled in various ways the limitations on --
Mary McCord: She’s an independent figure, right.
Andrew Weissmann: Absolutely.
Mary McCord: She’s going to do what she thinks is right. And a lot of that criticism just to get to your point about one of the central issues here, the primary criticism is of the dissent is that one district court judge is able to issue a ruling that has such a big impact. We saw this in the last administration, some of the justice, Justice Alito who wrote this dissent felt very differently when it was a one district court judge in Texas who issued an order that he approved of. But this is an issue in many cases, including the birthright citizenship places. The administration has argued one judge shouldn’t be able to issue a ruling on birthright citizenship that applies universally nationwide.
Those issues arise about the scope of relief out of cases that like you just posited that are really about the separation of powers about the executive’s attempts to sort of overreach, not only encroaching on Congress’ authority, the legislative branch, but also on judicial authority, as we are starting to see. And what has happened since the Supreme court’s 5-4 ruling is Judge Ali actually has had a full preliminary injunction hearing and issued last night, a lengthy decision on the preliminary injunction about this foreign aid. Granted it in part, denied it in part. Basically said there’s a strong likelihood of success on parts of the administrative procedure claim, but a strong, likely the success, and this is important on the separation of powers issue. The one that you were just talking about.
And in fact, but he did not say you’ve got to resume all funding of everything into the future. He said, have to pay all those bills up to February 13th and then you can’t then just engage in sort of this blanket refusal to expend funds that Congress has appropriated.
Andrew Weissmann: There is a lot to unpack going forward. I want to just thank everyone for listening. I know that we covered a lot, but if there’s any time for an informed citizenry, this is it. We are doing our best and we’re trying to cover a lot of material. So that’s my way of saying thank you to all of our listeners and thank you, Mary.
Mary McCord: Well, thank you for helping me to keep up with this utter deluge.
Andrew Weissmann: Yeah. So with that, remember, you can subscribe to MSNBC Premium on apple podcast to get this show and other MSNBC originals add free. You’ll also get subscriber only bonus content, like the new premium episode of “The Blueprint with Jen Saki,” with DNC chair, Ken Martin, sharing his vision for a new party strategy.
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@nbcun.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 Bryon Barnes. Aisha Turner is the executive producer for MSNBC audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcast and follow the series.