In Mary and Andrew’s estimation, there is no effort from the Trump administration to say things softly, the quiet part is very much out loud. They begin with the indictment of former FBI Director James Comey by Trump’s newly installed U.S. attorney for the Eastern District of Virginia, Lindsey Halligan, noting how much these targeted charges upend the tradition of a separation between the White House and the Justice Department. The next stop is Portland Oregon, where the president announced his intent to deploy troops to the city in a Saturday Truth Social post, calling it “war ravaged”. Oregon immediately sued to stop the national guard deployment, so Mary and Andrew catch listeners up on where this stands and what to expect. And last, they turn to Trump’s domestic terror memorandum, announcing his intent to investigate left-leaning groups he suggests may be funding political violence.
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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’s Tuesday morning, September 30th. And I’m Andrew Weissmann. And I’m here with my co-host Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. How are you today?
Andrew Weissmann: September 30th, only three and a half more years to go.
Mary McCord: Okay. That’s a long time. All right. And I don’t want to rush my life. I am not at the age where I can rush through my life anymore. I need to like take my time. So, this is really.
Andrew Weissmann: You know what, maybe it’s not really three and a half years.
Mary McCord: No, it’s not.
Andrew Weissmann: Maybe it’s three and a quarter.
Mary McCord: Yes. Oh, that sounds so much better. So, you know, I’ve been thinking about what we called our episode last week, a break glass moment. And then I feel like we’re either at like another break glass moment or the glass is already broken.
Andrew Weissmann: I know, you know, it’s really weird because you keep on thinking there is going to be a bottom and --
Mary McCord: There’s not.
Andrew Weissmann: -- there isn’t. Because, you know, how last week I was like looking for these shards of optimism.
Mary McCord: Yes.
Andrew Weissmann: So, I’m not in that mood.
Mary McCord: No, we’re in a different place.
Andrew Weissmann: We are, and I think one thing that’s going to be interesting, because obviously, we’re going to talk about the Comey indictment, but I think one thing that will be interesting is, and I was on with Nicolle Wallace yesterday and she sort of raised this too, but it’s like, how do we communicate to people sufficiently that what happened with Jimmy Kimmel is what happened to James Comey, which is what happened to Abrego Garcia. I mean, it’s all of a piece. And Abrego Garcia, actually I was surprised by the traction it got and the reaction to that and the amount it triggered human decency.
Mary McCord: Right.
Andrew Weissmann: Which I still think Americans care about. And obviously Jimmy Kimmel, because he’s such a major figure, but I’ve talked to a number of people who are like, well, what’s going on with the FBI and isn’t it, kind of, normal and isn’t it tit for tat and this is everyone. And it’s so second nature to us because we care about the rule of law. And so, this is such a cynical attempt to think that process won’t matter if we can label the person as bad or a terrorist.
Mary McCord: That’s right.
Andrew Weissmann: The more you can vilify the person, it doesn’t matter that it’s off with their head, trial to follow.
Mary McCord: It’s interesting that you say this because I am away from my home right now because I gave a keynote address at a university last night and it was all about the rule of law, and frankly, the difference between the rule of law and just due process. Due process, right, is part of the rule of law. But it’s about sort of individual rights and that the government can’t take something from you, your liberty, your property without due process of law. But it’s very individualized. Whereas rule of law is much more systemic, right? A system of laws by which both the governed and the government agree to abide and transparency in the enactment and enforcement of those laws. So that there’s predictability and stability and you know, a fair system of adjudication of rights and responsibilities and diverse, competent, and independent lawyers and judges and each one of these things is under attack.
And I’ve read a lot about, and you and I both have talked with people who study sort of authoritarian regimes and post authoritarian regimes. And to people in those countries, they think about rule of law a lot because they think of rule of law as sort of the difference between democracy and dictatorship. Whereas in the U.S., it’s not a term that has people bandied about, but they don’t always, I think really know what it means, but we think of due process of law a lot because that’s about sort of our individual rights. But if you don’t have rule of law, you know, due process is just this nicety that is not going to be accessible to the population.
Andrew Weissmann: Yes. I mean, before we turn to, I mean obviously the first thing we’ll talk about is Jim Comey and that’s what’s --
Mary McCord: Yes.
Andrew Weissmann: -- causing us to have this conversation.
Mary McCord: That’s right.
Andrew Weissmann: But I do think that borrowing a page from your point that we both have talked to and talk with people who study other countries and other authoritarian regimes and America’s had such a privilege of --
Mary McCord: That’s right.
Andrew Weissmann: -- we have not been under a dictatorship. We are not bordered by countries that threaten us who are authoritarian. And so, we don’t have the experience of Ukraine or Italy or Romania, or I mean, on and on.
Mary McCord: Yes. On and on.
Andrew Weissmann: And so, there’s this sort of unreality that I think people feel like, well, I can still look out in the sun shining and I can get some beer and I can watch a movie. And so, what’s the real effect on me?
Mary McCord: That’s right.
Andrew Weissmann: But to me, that sort of reminds me when I was reading books about what it was like to live in Berlin during World War II.
Mary McCord: Yes.
Andrew Weissmann: And you know what, yes, there were some shortages and yes, there were some hardships, but you know, people had to go about their daily lives also.
Mary McCord: Yes.
Andrew Weissmann: And so, it really comes down to a choice and what it means to you. Okay. That’s the last of it.
Mary McCord: Yes.
Andrew Weissmann: That is going to be a very big segue to the specifics of James Comey and what happened there, but also what it means.
Mary McCord: That’s right. And then we will turn our attention to Portland. The latest place where the president is deploying the military.
Andrew Weissmann: Well, Mary, I heard that the president said, it’s war-ravaged.
Mary McCord: It’s a war. I was just going to say ostensibly, based on a war-ravaged city that we have seen many, many videos and statements from people in Portland saying I’m not really seeing the war here. And it just dovetails right into the executive order last week, which sort of was a follow on to the executive order we talked about on our last episode, when we talked about the designation of antifa as a domestic terrorist organization, this is an order that is sort of bigger and broader is outlining a, something of a domestic terrorism strategy. Basically, saying use every single tool in the arsenal of tools, investigation, prosecution to crack down on political violence and domestic terrorist.
But it’s completely in terms of terrorism coming from one side of the ideological spectrum and completely ignoring the other side. But I think an important takeaway there is, it’s I think being used in some ways to also justify this militarization of our cities, but the executive order itself, it’s actually presidential memorandum we’ll talk about, people should understand it does not create any new crimes. It does not create any new surveillance authority. It’s really a sort of like, a priorities memo. So, it doesn’t mean it feels good, but people should realize it doesn’t create new authorities.
So we will dig into that, but let’s start with James Comey because when we recorded last week, we had seen Erik Siebert fired or forced to resign. We had seen him replaced with Lindsey Halligan, a White House aide who’d been part of the president’s defense team at Mar-a-Lago, but really doesn’t have any prosecutorial experience. She did insurance law in Florida before coming to the White House.
We knew when we recorded that the president over the weekend had directed the attorney general to work with Ms. Halligan to bring charges against James Comey. And, also other political enemies of the presence were mentioned, but we did not know what Ms. Halligan would do. And now we do.
Andrew Weissmann: So, James Comey, as most people who are listening to this know, has been charged in two counts. We’ll talk about procedural things in a moment, but let’s just first talk about what he was charged with because there’s a whole issue about the vote count and what he was not charged with.
Mary McCord: That’s right.
Andrew Weissmann: But what he was charged with is two counts that very much relate to each other. The first count is making a false statement to Congress. The second count is obstructing Congress as a result of that false statement. Although there is a little bit of a glitch because count two says false statements, plural.
Mary McCord: Plural.
Andrew Weissmann: But that’s probably because one of the false statement charges that was proposed, the grand jury did not issue what’s called a true bail, meaning they didn’t say that it was warranted. So there are only these two counts. And as I’ve explained it, one set of facts can result in multiple crimes. So if you go into a bank using a gun that can lead to bank robbery charges, a conspiracy to rob a bank, using a gun in connection with a crime of violence.
So, one core set of facts can trigger multiple charges. And that looks like exactly what count one and count two are that there’s this false statement. And it’s both the crime of making a materially false statement to Congress. And intentionally, obviously it’s not that you were wrong. It has to be intentionally lying. And the other is that, that same act of saying something that you knew to be false in material obstructed the congressional proceeding because Congress was investigating something that presumably the grand jury thinks there was probable cause was obstructed by that false statement.
Mary, could you tell me specifically what exactly are the words that James Comey is alleged to have said that are false, because when I’ve done false statement charges, and by the way, false statement charges are not arcane. I mean, this is a crime that is charged not every day of the week, but it is a common charge, but typically when there’s a false statement charge or a perjury charge, the actual false statement is specified. And sometimes when I’ve done it, it’s actually quoted. And if it’s in a huge paragraph, you put the whole paragraph and you underline the specific language.
Mary McCord: It’s put in context. Right?
Andrew Weissmann: Yes.
Mary McCord: It’s put in context.
Andrew Weissmann: Exactly. And I’m asking Mary this question, because for a while there was like a parlor game that people were engaged in trying to figure out what in God’s green earth would he charged with?
Mary McCord: That’s right.
Andrew Weissmann: Like what’s the false statement. And there was a whole issue about, is it revolve around Andy McCabe, the former deputy director of the FBI, spoiler alert? The answer is no. Or does it revolve around Dan Richmond, spoiler alert? The answer is, it seems pretty clear that is what it relates to.
Mary McCord: Yes. Although we still don’t have confirmation of that.
Andrew Weissmann: We don’t. We don’t.
Mary McCord: Just to be clear, like we’re still speculating.
Andrew Weissmann: Absolutely.
Mary McCord: But to your point, and some of these other indictments we’ve talked about are what we’ve described before as speaking indictments, right? Where they have a much more fulsome explanation of what is leading the facts that lead up to the charges. This is a bare bones indictment. Count one, count two. And even in bare bones though, you would expect specificity about what statement is alleged to be the false statement and why it’s material, frankly, to whatever it is that Congress was investigating.
But here, what we have in count one is that on September 30th, 2020 in the Eastern District of Virginia, the defendant James B. Comey Jr. did willfully and knowingly make a materially false fictitious and fraudulent statement in a matter within the jurisdiction of the legislative branch of the government of the United States, by falsely stating to a U.S. Senator during a Senate judiciary committee, hearing that he, James B. Comey Jr., had not quote, “authorized someone else at the FBI to be an anonymous source in news reports,” unquote, regarding an FBI investigation concerning person one.
It then says that the statement was false because James Comey then in there knew he had in fact authorized person three to serve as an anonymous source in news reports regarding an FBI investigation concerning person one. So, what do we know from that? We know that at some point he either said or responded to a question posed to him and we know it’s the latter, I think from the transcripts of that hearing, that he had not authorized someone else at the FBI to be an anonymous source in news reports. But we have to your point, we don’t know which incident --
Andrew Weissmann: Right.
Mary McCord: -- this relates to. And there’s been lots and lots of reporting and an entire OIG investigation into Andy McCabe leaking information about an investigation into Hillary Clinton and the Clinton Foundation to “The Wall Street Journal” back in 2016, which resulted in reporting about that and resulted in a whole investigation about whether he had leaked that and whether he had any authorization to leak that.
And then separately, it’s known that a Columbia law professor, Dan Richmond, is somebody that James Comey had used as a sort of a special advisor and sometimes had confided things into him and used him as a conduit to the media. So thus to your point, looks like it’s the latter, but it’s not entirely clear.
Andrew Weissmann: Yes. This idea of person one and person three, the idea of anonymizing that is not atypical. People should know that very typically, especially in a high-profile matter, you anonymize that you do give to the defense team exactly who that is. And so, they do have to know that. They’re also going to be entitled to the specifics of what exactly is the false statement like this is plainly not sufficient for notice. And if they withhold that there’s going to be a motion for it and the judge is going to grant that.
Mary McCord: Going to grant it. That’s right.
Andrew Weissmann: But the leading speculation and there’s a lot of reasons for it is that person one is Hillary Clinton. And as I mentioned, person three appears to be Dan Richmond. Dan Richmond is somebody who James Comey has said, and so is Dan Richmond, you know, personal friend and former colleague in the Southern District of New York. They were in the U.S. attorney’s office together. And he also, Dan Richmond, was a special government employee at the FBI for a period of time. So he technically was an FBI person, whether he was at the FBI, which was the term that was used is a little ambiguous because you could imagine not thinking of him as at the FBI.
Mary McCord: Right.
Andrew Weissmann: Because I’m pretty sure he didn’t, would actually have an office there --
Mary McCord: That’s right.
Andrew Weissmann: -- or anywhere at the FBI. He had that position, I think just so that Mr. Comey, I suspect could have those conversations and get his advice without breaking the law.
Mary McCord: And that’s something called a special government employee.
Andrew Weissmann: Yes.
Mary McCord: But there’s even question about whether he was in fact, a special government employee at the time that this alleged false statement was made.
Andrew Weissmann: Yes.
Mary McCord: So we are digging in now to facts, right?
Andrew Weissmann: Yes.
Mary McCord: Like there’s so many facts that are still unknown. And will obviously.
Andrew Weissmann: Can I make one quick point though, about the law and I’m going to take a little bit of an issue with the term leak because of the following. I think people need to understand that James Comey and Andy McCabe, the then director and deputy director have authority within the FBI to speak to the press and give information to the press. We’re not talking by the way about classified material. Classified material there would be very different rules that would need to be followed. And I won’t get into all of the niceties, but if we’re not talking about classified information, it’s important to know that they are entitled to, and in fact, government employees, when they’re, very often will have communications that are authorized with the press. So, what we’re really talking about here is trying to understand if this were true, why would James Comey even bother denying it when he has the authority to have authorized it?
Mary McCord: Although I would say with respect to that though, that it is not common and it is certainly against the norms of the Department of Justice to publicly announce an investigation into a person.
Andrew Weissmann: Oh, absolutely.
Mary McCord: It sometimes happens. But when that is not known, that is a sensitive, law enforcement sensitive information. And so that is the information here that we’re talking about being leaked, right? That there is an investigation into a particular person. And we’re pretty sure that that’s Hillary Clinton. So it’s not that he wouldn’t have had the authority, but it is a violation of the norms to make that announcement. And remember, we’re talking about 2016 when we have a presidential --
Andrew Weissmann: Yes.
Mary McCord: -- election going on.
Andrew Weissmann: All of this is we’re looking a little bit through a glass darkly, precisely because the language is so unclear as to what exactly happened.
One more procedural thing before I tried to back over to you, which is, this is the way the grand jury works. Grand jury is made up just like a trial jury of like people from the community. It is up to 23 people. That’s the full maximum. You need to have at least 16 for there to be a quorum. Here there were 23 people from the paperwork that’s been filed. And we actually know the vote count here. The vote count, with respect to the one that was not voted on. We don’t actually know the vote count other than they did not get 12. You need to have 12 to have an indictment, that is the bare majority. Remember 12 out of 23. I don’t do math in public, but I’ll do that one. So, 12 out of 23, they couldn’t get that on one of the counts.
That, by the way, is why when Mary was talking, she said person one and person three, because in the count that didn’t get voted to go forward, there was a person two. And so, they didn’t actually fix the indictment.
Mary McCord: That’s right.
Andrew Weissmann: It was such a fast job. There was a lot of confusion in the paperwork. The magistrate judge even noted that, that there was a lot of confusion. Then with respect to the two counts that were voted, remember, you need to have 12 while they got 14 votes, 14 out of 23.
Mary McCord: Here’s a little math. That means nine people said no.
Andrew Weissmann: Just to be clear, at the grand jury stage, you do not need to be unanimous. It just needs to be a bare majority. So, 12 out of 23, and they only got 14 out of 23. Also the standard of proof is probable cause.
Here’s a quick tip. A lot of people are getting this wrong. Probable cause is not preponderance, meaning more likely than not, more likely than not is 50 percent plus a hair. Probable cause is like something like, it’s not a precise term, but let’s just say 20 percent. It is a low standard. It is much lower than preponderance. And here’s the kicker. It is much lower than proof beyond a reasonable doubt. At trial, the Eastern District of Virginia needs to prove this case beyond a reasonable doubt. And the jury of 12 has to be unanimous. You cannot have a conviction with less than 12 absent the defendant agreeing.
So, what does it tell you that in the grand jury, all they were able to do at the low standard of probable cause is get 14 out of 23. One of the reasons that you’re hearing everyone, I’m included, Mary, you can weigh in on this, that this seems like there’s good reason that you hear that career people, and even the former U.S. attorney were saying, don’t go forward with this is precisely because these numbers that show that there’s a real problem in this case.
Mary McCord: That’s right. Yes. And actually that raises another important point about what the obligation of the prosecutor is when you go into the grand jury.
Andrew Weissmann: Love it. Yes.
Mary McCord: Even though the standard is different, it’s only probable cause, the guidance within the Department of Justice and long-standing direction to the prosecutors is you don’t even ask for it. If you don’t believe that you have enough admissible evidence to prove every element of the charge crimes beyond a reasonable doubt, it’s not going to be your burden at the grand jury, but what’s the point of getting an indictment based on probable cause if you don’t actually think you can prove your case beyond a reasonable doubt. So, what’s the point I think is actually something we should talk about when we come back after the break.
Andrew Weissmann: Absolutely.
Mary McCord: Which is, this is about political retribution.
Andrew Weissmann: That is such a perfect segue. Just think about that. What is the point of the Department of Justice has a policy that you do not subject someone to a criminal indictment, unless you have this reasonable understanding that you’ll be able to meet the trial level burden.
Mary McCord: That’s right.
Andrew Weissmann: Why is it, it’s precisely for cases like this.
Mary McCord: All right. We’ll be back after the break.
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Mary McCord: Welcome back. Well, as we were just discussing, I probably will surprise no one who’s been paying attention to the news about this indictment, here might be other reasons for seeking this indictment besides the merits of the actual case, besides the actual facts and what they mean for these charges.
Let’s talk about the apparent retaliation here and how unusual it is, frankly, for the president of the United States to direct his Department of Justice, to bring an indictment, even when he knows that career prosecutors, including his own chosen nominee for the U.S. attorney in the Eastern District of Virginia thought that the evidence was insufficient.
Now, I think we’ve talked before about since Watergate, the policies of both the Department of Justice and the White House under presidents of both Republican and Democratic administrations have been that you do not have these kinds of directions, that you do not have contact with prosecutors about individual cases and investigations. Now there is high level contact between the attorney general and deputy attorney general and the White House about sort of priorities, right. Are we going to prioritize drug trafficking? Where are you going to prioritize terrorism crimes in this administration? Those kind of things. And certainly, there’s a heads up if there’s going to be a major, major arrest and a highly sensitive case, but the policy of no context is so that the American people can feel like the Department of Justice is not just a tool of the White House to be used for political purposes. That is gone.
Andrew Weissmann: Gone.
Mary McCord: That is gone under this administration.
Andrew Weissmann: Let’s all put on our time capsule hats, and go back in time to, and many Republicans were outraged at the fact that former President Bill Clinton ran into Loretta Lynch on the tarmac, in I believe Arizona, and even though Secret Service was present and her husband was present, they had a chit chat. And isn’t this nefarious, and isn’t this something where you have a former president who could have used that opportunity, as if there was no other opportunity, to weigh in on what should happen to the ongoing criminal investigation of Hillary Clinton. And --
Mary McCord: Yes, because this was 2016 when this happened. Right.
Andrew Weissmann: So, and that was just this feeding frenzy everywhere. And even people on the left were like going well, there’s this appearance of impropriety. And my view was always, well, if there’s no, there, there I don’t. Yes, the appearance is not a good thing, but it’s like the appearance doesn’t matter if there’s no there, there. And I don’t think that Loretta Lynch needed to hear from Bill Clinton that he wouldn’t want to see his wife prosecuted.
Mary McCord: That’s right.
Andrew Weissmann: Even if that even came up, which by all accounts didn’t come up.
Mary McCord: That’s right.
Andrew Weissmann: But I mean, just think how far we are from that.
Mary McCord: Yes.
Andrew Weissmann: And that, and this is one where everyone thinks, oh, what’s happening here. And what Trump is doing is just saying out loud what is normal. And it isn’t.
Mary McCord: It’s not.
Andrew Weissmann: Mary and I have been at the department under Republican and Democratic administrations. We have been there also at the worker bee level. And then we rose to levels where we were in a position where people could be telling us that stuff.
Mary McCord: That’s right.
Andrew Weissmann: And it just did not happen. And so that idea, that cynical idea this just happens all the time. It just isn’t true.
Mary McCord: It’s not true.
Andrew Weissmann: I’m not saying that it never happens. It’s just that this is so abnormal and here it’s not just the weighing in, it’s the weighing in when there are no facts. And so, you actually are subjecting somebody to a criminal indictment where by all external indications are that it really is not one that meets that DOJ internal guidelines and threshold. I am going to be very interested. There’s an arraignment coming up. The first court appearance. I am going to be very interested in what the Comey defense team, which is very experienced, what it does, because remember this is in the Eastern District of Virginia. It’s the so-called rocket docket, meaning cases go very quickly and it’ll be a real sign here. Whether the defense says we want a fast trial and that we want to sort of clear Jim Comey’s name and sort of catch the government flatfooted because if they could barely meet the standard at the grand jury, they’re not going to meet the standard at trial. And so, that to me is going to be a thing for everyone to look for.
Mary McCord: That’s true. And James Comey has put out a statement where he has said, let’s get to a trial and let’s get my name cleared, but there are some other really compelling interests here. This case to me, screams out a motion to dismiss on due process grounds for vindictive prosecution, selective prosecution, and just sort of outrageous government conduct. And frankly, the things that the president says every day almost about James Comey --
Andrew Weissmann: Absolutely.
Mary McCord: -- are exhibit number one. I mean, rarely there is something about the transparency of this president that is very different. Usually when people are doing things that are unethical and in violation of norms, they are a little more sneaky about it. And he’s out in the open, but that out in the openness means you can go into court and say, look, he directed that these charges be brought and --
Andrew Weissmann: And then he’s polluting the jury pool by saying that he’s a bad person.
Mary McCord: That’s right.
Andrew Weissmann: And he’s dumb and a bad cop. By the way, the reverse happened during the Mueller investigation while the jury was out, I believe in the Paul Manafort case in the Eastern District of Virginia.
Mary McCord: That’s right.
Andrew Weissmann: The president issues, this is President Trump in his first term, is paying to Paul Manafort about --
Mary McCord: That’s right.
Andrew Weissmann: -- what a good guy he is. And that made it into volume one of the Mueller report as one of the many things that were indications of factors to consider in deciding whether he had obstructed the investigation was he is speaking out --
Mary McCord: That’s right.
Andrew Weissmann: -- while a jury was pending.
Mary McCord: That’s right.
Andrew Weissmann: Well, you know, here, he’s not just putting his thumb on the scale, he’s throwing his entire weight of the --
Mary McCord: Entire weight of his office. Yes.
Andrew Weissmann: Exactly.
Mary McCord: And it just seems particularly given that the president has indicated that this is just the start, right. That there will be more. And I think part of, you know, why for you and I, this was such a major moment is these are things he’s been saying he was going to do since he was a candidate. And now, it has actually happened. And we felt somehow that maybe this would be a bridge too far. And it obviously is not a bridge too far. So if there’re going to be more of these, I would like to see the law develop a little bit here when it comes to this type of vindictive political retaliatory prosecutions. But obviously Jim Comey’s got to decide what’s best for Jim Comey with the help of his lawyers. If they do go to a quick trial, it will be very interesting to see who tries that case for the government because --
Andrew Weissmann: Exactly.
Mary McCord: -- the reporting has been that Lindsey Halligan herself presented this to the grand jury. There are some sort of like funny quips about then when she went into the courtroom to present it to the judge, she didn’t know where to stand and got confused about the paperwork. And those are kind of like, I don’t know, mildly amusing stories, but they portend something potentially much more significant, which is a person who doesn’t have any experience with a prosecution or a trial that is a criminal trial.
And if she going to have any of the career prosecutors who are willing to step up and do that, one would’ve thought that she would’ve had a career prosecutor who would’ve presented the case to the grand jury. And the fact that she did not could be just happenstance or it could be that people refused to do it. We know one person has already resigned from that office. It won’t surprise me if there are others.
Andrew Weissmann: Yeah. So obviously there’s a lot to wait and see and I wanted to just close this out before we turn to Portland and it’s maybe a good segue to make a point, which is that Pam Bondi and Kash Patel have been vociferous each time they bring some case, and they did it here as well. They said nobody is above the law. Nobody is above the law. Well, of course that is true. That is, nobody should be above the law. And if, if there were actually the requisite proof against James Comey that he had made false statements or obstructed Congress, so be it.
Mary McCord: Yes.
Andrew Weissmann: I mean, the fact that he was the former FBI director, any more than somebody as the former president of the United States, shouldn’t immunize you. In fact, you should be held to a higher standard, not to a lower standard. So that’s not the issue. Our issue is that one, the facts don’t seem to be there given the extraordinary way in which this came about, that you had to like fire even your own appointee in order to get this done. And then second, it simply isn’t the case that this Department of Justice is applying the law evenhandedly.
Mary McCord: Right.
Andrew Weissmann: You don’t have to just look to Mr. Homans, you know, the border czar, which we talked about.
Mary McCord: Yes.
Andrew Weissmann: But if you want to talk about sort of like evenhandedness and just take a big picture back, all of January 6th --
Mary McCord: That’s right.
Andrew Weissmann: -- and the sitting president of the United States and this whole idea of when somebody you like is being prosecuted, that’s an injustice and that’s weaponization. But as soon as you bring a case against James Comey, that’s truthful as the day is long and should be believed, and there’s no such thing as a witch hunt, it’s enough that the government says it. You know, that’s the allegation with respect to Abrego Garcia. It’s like, as if I call him a terrorist, he is a terrorist.
Mary McCord: That’s right.
Andrew Weissmann: You don’t have to go to court. This double standard of what I say goes is just so belies the use of language that is, see word against weaponization. And that maybe is like a perfect segue because this idea of like the military is now showing up, but it’s not showing up in the places where there is the greatest crime issues. If that is the ostensible reason, you know, Mary, if you and I were sitting there and going, okay, how are we going to do this and how are we going to do this the most responsible way? We decided that no, we’d be doing that. But if you were looking at the data, you wouldn’t be looking at blue states and red states --
Mary McCord: No.
Andrew Weissmann: -- you’d be looking at what’s the crime data.
Mary McCord: Yeah.
Andrew Weissmann: But that’s not what’s going on.
Mary McCord: What’s the urgency that justifies the use of the military, right? And yet here, it seems like on an almost daily basis, the president’s just picking and choosing different cities that he wants to target. And then he’ll change his mind about a city and pick another city. And if we had a real problem in any of these places that required the use of the National Guard or the U.S. Armed Forces, you’d kind of think it’d be obvious to all of us. I mean, think about other times when military has come in to quell unrest, think about the riots that broke out after Rodney King was terribly beaten by police in L.A. and four police officers were acquitted.
The governor of California asked the president to please send in the military to help quell that violence. The president then invoked the Insurrection Act. It’s the last time it was ever invoked to be able to send, with the request of the governor, armed forces, U.S. armed services to actually help well that unrest, engage in domestic law enforcement.
The whole world could see the need for it at that time. And we could even argue, maybe there were other less drastic measures that could have been taken then, but that was not anything that was really debatable in terms of the violence that was happening after that serious and horrible and heinous beating. And we don’t have anything remotely like that happening in the United States right now.
Andrew Weissmann: I think that raises two issues. One is that what Mary and I are talking about is this concern about pretext. What they’re saying is simply, you know, black, but what’s happening on the ground is white. And that raises sort of two issues. One, you don’t really have to guess at what’s going on here. Stephen Miller basically says the Democratic Party is a domestic terrorist organization. Pam Bondi, and we can play a clip of it is basically saying, we’re going to go after you if you try to keep Donald Trump out of office.
(BEGIN AUDIO TAPE)
Pam Bondi: Whether you’re a former FBI director, whether you’re a former head of an intel community, whether you are a current state or local elected official, whether you’re a billionaire funding organizations to try to keep Donald Trump out of office, everything is on the table. We will investigate you and we will end the weaponization.
(END AUDIO TAPE)
Mary McCord: I didn’t know that it was a crime to like be against a particular candidate for office. And by the way, he’s not a candidate for office. He’s in office and he’s ineligible to run for the presidency again.
Andrew Weissmann: And so this idea that it’s like, if you are against the administration’s policies, that is something we’re going to go after and that is directly what is happening with sort of Portland, this idea that if you are a so-called sanctuary city, that somehow you have committed a crime. No you haven’t. And assuming you do it correctly, you have no obligation to help the federal government. You can’t get in their way, like you can’t obstruct them, but you don’t have to help them. You’re an independent sovereign entity. Something that the Republicans used to be very fond of saying about this state’s rights, which includes by the way, last time I checked, Seattle and Portland --
Mary McCord: Yes.
Andrew Weissmann: -- and Los Angeles and Chicago and New Orleans, and you go on and on and on. Here, they’re just so clear about what the motivation is. The legal issue that raises to me is that there is a doctrine in the law and we’ve talked about the presumption of regularity, but there’s even more than that in this area where it’s like, once the president has made factual findings, there’s such a hesitancy of the court to second guess that, but what do you do when the factual finding is so clearly not made in good faith and is so clearly a pretext?
I don’t think that we have dealt with that in the law in a meaningful way. And I really do understand why the judiciary would give deference to the policies of an administration. Elections have consequences, but you’re assuming each branch of government operates in good faith.
Mary McCord: That’s right. And that’s the key there, right? So this presumption of regularity that we talked with Ryan Goodman about a few weeks ago, and also deference to the executive in matters of national security, foreign diplomacy, those are things built on the notion that the government does act in good faith, right? And what’s happening now, when you can see facts on the ground that don’t match up to the factual findings of the president, that calls that all into question.
And that is one of the things that the state of Oregon and the city of Portland in the court case that they just filed to try to prevent these deployments. That is a major thing that they are pointing out. They’re saying the authority that the government is using now, and it’s the same one that was used in LA, Title X Section 12406. It is a federalization of the Oregon National Guard. That federalization of the National Guard, they’re saying the predicates for that federalization are not met.
The statute would allow federalization when the U.S. is in danger of invasion by a foreign nation, obviously that doesn’t apply here. When there’s a rebellion or danger of a rebellion against the authority of the government of the United States. They say we’ve had the last arrest we even had at a protest outside the ICE facility was in June. Everything since then has been very calm. The crowds are not very big. There’s been no rock throwing or fires or violence. So that doesn’t match the facts.
Andrew Weissmann: Can I give you a quote on that directly to your point from the complaints that was filed by Portland that says on July 19, 2025 protests continued. By the way, protests are entirely legal. I mean --
Mary McCord: That’s right.
Andrew Weissmann: -- you can protest things all the time.
Mary McCord: Not only legal, protected by the First Amendment.
Andrew Weissmann: Oh yeah, that too, right.
Mary McCord: Yeah.
Andrew Weissmann: Protests continued with up to 60 people gathered at the ICE facility. A Portland police officer described the group as quote, “low energy and seated quietly.” Low energy and seated quietly, which is then described by the president as war ravaged Portland.
Mary McCord: Right. Yeah.
Andrew Weissmann: And apparently, that came from, he was watching Fox News the night before, and this is all in the complaint.
Mary McCord: That’s right.
Andrew Weissmann: And on September 5th, 2025, it is alleged Fox News aired a report on Portland ICE protests and included misleading clips from Portland protests in, wait for it, 2020. I don’t do math, but that would be five years earlier.
Mary McCord: That’s right. And that is the summer when there were many, many protests around the country and the world after the murder of George Floyd. And there were some isolated acts of violence --
Andrew Weissmann: Absolutely.
Mary McCord: -- in Portland. There were some crimes that were committed during the course of those protests. So protests is First Amendment, protected violence is not. And if you commit violence during a protest, that part of your protest is not protected, but that was not now. That was an old clip. And the state and the city in their litigation have pointed out, as you said, it would appear that he saw that and may have been misled by that as to what was happening in Portland today, but it doesn’t match up to the facts on the ground.
They argue that the third predicate for this Title X federalization that the president is unable with the regular forces to execute the laws of the United States. Same thing. That’s not the case. The complaint makes clear and the temporary restraining order motion make clear that Portland Police Bureau has been able to very readily manage any protests. If they’re blocking the way for ICE vehicles, they have cleared them out of the way. They have a rapid response team. If they need to gear up, if there’s actually something that is more than people sitting quietly --
Andrew Weissmann: Right.
Mary McCord: -- in holding signs in protests, they’re prepared for that. And so none of these predicates are met. I mean, they use the direct terms that they use defendants because it’s more than just the president who sued here because they’re stated basis for federalizing members of Oregon’s National Guard is pretextual and baseless. They can’t meet the prerequisites for this federalization.
And again, we know because there was similar litigation in L.A. and the Ninth Circuit, even though it rejected some of the conclusions of the lower court. The Ninth Circuit did say this kind of invocation of Title X is reviewable and it is reviewable to ascertain whether it’s a valid exercise of honest judgment. And that’s what the argument is here.
Andrew Weissmann: Can I ask you about that? I wanted to go to something you pointed out and make sure our listeners got that, which is that one of the prerequisites is that the president is, quote, “unable with the regular forces to execute the laws of the United States,” unquote. Unable with the regular forces. And if I were Portland, I’d want to put an ICE agent on the stand and say, I’m sorry, what were you unable to do? Who was out there as federal forces before calling in the military? And what is it that you were unable to do? Are you telling me that you, ICE agents, don’t have the ability to do this? Make them have to eat that? Because most law enforcement people I know, that’s not really their strong suit, is like being so modest that they’re thinking, oh, I couldn’t handle this.
They’re going to think we trained for this, we’re professionals. And especially when we’re not talking about a war, insurrection, or huge violent unrest. They could understandably say we just weren’t prepared. But here the real question is what is the president or ICE or anybody going to say that they were unable with the regular forces to do here? That to me seems like a huge weakness. And tell me if I’m misreading this, but that seemed like a gaping hole.
Mary McCord: I think that’s right and I also think this is where factually this case is very different than L.A. because there were protests in L.A. that at least an argument that the Ninth Circuit actually seemed to accept sort of an emergency stay basis, that the protests were such that it was, I’m trying to find the right verb here. It was complicating ICE’s efforts to engage in its federal functions, but they were bigger protests. They did involve sometimes throwing bricks at ICE officers. They involved other things that did interfere to some extent with ICE doing its federal functions.
Now I think many of us would say not nearly enough to be a rebellion or to show that the president is unable with the regular forces, right, to do federal functions, but it factually is very different than in Portland. And the judge in this case gave the government until Thursday, I believe, to file its opposition to the motion for a temporary restraining order. The judge is having hearing on Friday on this.
Now, usually in these TRO hearings, they are not fully developed with witnesses often, but I think the question you just ask is the question that the court should be asking right of the government. What do you have that you can point to that says that ICE is unable to fulfill its federal functions. Then beyond the temporary restraining order, there likely will be then a request for preliminary injunction, which you can develop many more facts and even call witnesses. And I think to your point, this is going to be one of multiple key issues there. Others include the military being sent there clearly to do domestic law enforcement, which is barred by the Posse Comitatus Act when there is a federalized National Guard. That’s the same issue that was recently subject of the trial in L.A. before Judge Breyer.
Andrew Weissmann: Yeah.
Mary McCord: Where he found not only that this Title X 12406 is not an exception to Posse Comitatus, the Insurrection Act is, but he found that this as a legal matter is not an exception. And as a factual matter, that the National Guard there in their federalized capacity was in fact, engaging in domestic law enforcement prohibited by the Posse Comitatus Act. So, here we know that it’s crime controlled because the president has said as much. And in fact, just today, while we’re recording this, apparently he is talking to the top brass of the military who have all been summoned to Quantico, Virginia. That’s one of the Marine facilities in Virginia, to be addressed by Secretary Hegseth and President Trump apparently has also addressed this crowd and says --
(BEGIN VT)
Donald Trump: And I told Pete, we should use some of these dangerous cities as training grounds for our military National Guard, but military because we’re going into Chicago-verse and that’s a big city with an incompetent governor, stupid governor, stupid.
(END VT)
Andrew Weissmann: So, Mary, does that take us to the big picture here, which, remember when the executive order came out and we said, just pay attention. Even though the title of this relates to the District of Columbia, it’s authorizing and it’s about operationalizing the military anywhere across the United States. And we said, just make sure you keep your eye on this.
What we’re talking about here is the use of the military with the pretext of, quote, “crime,” unquote, which exists everywhere into every blue state and every blue city at the whim of the President and the Secretary of Defense, and I think puts enormous pressure on the court to do the right thing here, that they really have to subject this in the same way they did at least at the outset when they were examining due process for the hundreds of people who were extracted and sent to a prison in El Salvador and they said that violated due process.
Is this the world that we’re going to live in? Is this keeping faith with three branches of government? The reason we have divided government in this country is to better secure liberty. That is why we do not have a king and no other branches of government. That is not the structure that was created. And so far, the courts below the Supreme Court have done their job, but we are not seeing that being done at the Supreme Court. They will be tested, and that is a very good segue to take a break and come back and talk about more including what’s come out of the Supreme Court recently.
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Andrew Weissmann: Welcome back. So, Mary, there was a proclamation about domestic terror, and it so relates to what we were just talking about in Portland. What did the president do and what is its import to you?
Mary McCord: So, as we talked about at the top, in many ways, I think this is really just a scare tactic because it doesn’t create new crimes. It doesn’t create new surveillance authority. It doesn’t create new investigatory authority, which means that the government and law enforcement still have to do all the things they would otherwise do when they investigate someone. They have to get a search warrant if they’re going to do a search including of electronic stored communications. If they’re going to try to bring charges, they have to meet the burden of probable cause and beyond a reasonable doubt at trial. If they’re going to use any type of surveillance authority, they have to meet the predicate for that.
It doesn’t give them free rein to call something terrorism or political violence, and like you said, just lock people up and throw away the key. You still have all of this process. But the signaling here is really extraordinary. In multiple paragraphs at the top of this lengthy presidential memorandum. It talks about political violence and domestic terrorism and the common recurrent motivations and indicia, uniting the pattern of violent and terroristic activities under the umbrella of self-described anti-fascism.
Now, I will note that this presidential memorandum focuses only on acts of political violence according to the White House from one side of the ideological spectrum, completely ignoring acts of political violence from the other side of the ideological spectrum. And I think the real tell here is what this proclamation says. Common threads animating this violent conduct include anti-Americanism anti-capitalism and anti-Christianity., support for the overthrow of the United States government, extremism on migration, race, and gender, and hostility towards those who hold traditional American views on family, religion, and morality.
Now, support for the overthrow of the United States government, that is an extremist ideology that can lead to terrorism. And it’s not that these other things can’t lead to acts of domestic terror, right? A crime of violence intended to intimidate or coerce the civilian population or affect the policy of government through intimidation or coercion. But this is basically trying to, in my mind, equate someone who is concerned about issues that involve immigration, race, and gender, is concerned about a capitalist society that has caused a greater divide between the rich and the poor, is concerned about protecting religions other than just Christians in this country. We have a lot of religions here. Like valid policy issues that people can have a view on are now sort of being shoved into this category of being ideologies that are the common thread of those who commit acts of political violence and domestic terror. And I think that sends a really disturbing message. The rest of the executive order is really saying use every tool in the toolbox, law enforcement, the joint terrorism task force, use every tool to try to go after not only those who are committing violence, but their networks, which I’m unaware of these networks, frankly, their networks and those who fund them.
And what I think this is likely to lead to and the attorney general has just put out a memorandum suggesting this is very, very aggressive use of federal crimes in places like Portland and in places like Chicago and the places where the president is saying there is so much war, I have those in quotes if you could see my fingers, that we have to send in the military. You overlay this proclamation about domestic terrorism with sending in the military to these cities and I could see very aggressive use of interfering with a law enforcement officer or a federal official, trespass on federal property, and other relatively low-level crimes not even necessarily violent crimes in the name of these are terrorists. I think we just really have to watch for that.
Andrew Weissmann: And the idea that it’s going to be selective. And as we mentioned, this is not one where it’s very hard to see what they’re up to. This isn’t just the quiet part out loud. There’s no quiet part. It’s all out loud.
Mary McCord: It’s all out loud.
Andrew Weissmann: Mary, the Supreme Court has done a couple things. One, I note, that they are going to hear now on the merits, the birthright citizenship case, so that we are going to definitely talk about that as it comes up. That’s a case that you’re involved in. And something that we normally would’ve spent a ton of time talking about is on the so-called shadow docket in this sort of emergency order, they have allowed the White House essentially not to spend of the $10 billion that they’re supposed to spend in foreign aid. The government was going to spend $6 billion before the end of the fiscal year, but they had a proposal to not spend the other four, and that was objected to saying, look, Congress appropriated it. You have a lot of discretion, executive branch, about how you’re going to do it, but you have to spend it because Congress has the power of the purse.
Well guess what, the Supreme Court has said, at least for this interim that has been stayed and they don’t have to, they did make clear that they’re going to hear it on the merits and it’s not a final decision, but the three liberal justices dissented from that. Elena Kagan wrote a wonderful descent saying this is a big major issue and it sounds arcane, but it really goes to the balance of power. Congress has the power of the purse and this is basically saying the executive can sort of veto that or exert a sort of pocket veto. And that’s not the kind of issue that you would decide without full briefing and full oral argument in this sort of slap dash manner. And so quickly see the amount of time they took on the Trump presidential immunity decision. I mean, again, you’re seeing a real difference in the way they’re going about handling this.
Mary McCord: Today is the last day of the fiscal year, the day we are recording. And one of the problems with using the emergency power here to put a stay on the lower court’s ruling saying government, you’ve got to spend this money Congress appropriated for specific foreign aid and people are going to be very, very harmed by the way, irreparably injured without this aid. One of the problems is now the fiscal year is over, so this idea that we may revisit this later because they make clear saying this is a preliminary ruling.
Andrew Weissmann: Yeah, good point.
Mary McCord: If we grant cert later, we will reveal it more fully. It’s too late. This $4 billion, and that’s with a B not an M, is gone. And that’s one of the things that the dissenters point out. And I think it’s also important, there’s just one part of the dissent that I think is worth reading because in every one of these emergency orders, not only do they have to show a likelihood of success on the merits, but also that there’s irreparable harm to the government if they don’t get this relief, and also the balance of equities, the public interest sort of versus the government’s equities, a balance of equities comes out on the government side. And I think these are areas where I think you and I in many other people would say, what you’re doing is not preserving the status quo, you’re instead letting the government just totally disturb the status quo and do something unprecedented like this, and that raises totally novel legal issues.
And here’s what Justice Kagan said about the executive’s protestations that it would have to advocate against its own objectives if it has made to spend this money because these are foreign funds and it would have to engage with foreign governments. And it’s like, our policy is we don’t want to be doing this at all. And here is what Justice Kagan says. But that is just the price of living under a constitution that gives Congress the power to make spending decisions through the enactment of appropriations laws. If those laws require obligation of the money and if Congress has not by rescission or other action relieved the executive of that duty, then the executive must comply.
It cannot be heard to complain as it does hear that the laws clash with the president’s differing view of, quote, “American values,” end quote, American interest. That inconsistency in other words is not a cognizable harm to be weighed in the equitable balance. It is merely a frustration any president must bear.
Andrew Weissmann: Amen. And that really goes to this idea of separation of powers, that there are checks and balances. That is really what this entire episode has been about, is that complete erosion.
Mary McCord: Rule of law.
Andrew Weissmann: So thank you all for listening. Thank you very much for staying engaged. It can be very difficult to do so, and Mary and I really appreciate it. And remember, you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC originals ad free. And you’ll also get subscriber only bonus content.
Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producers are Iggy Monda and Ranna Shahbazi. And our intern is Colette Holcomb. Bob Mallory is our audio engineer. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNBC Audio
Andrew Weissmann: Search for “Main Justice” wherever you get your podcast and follow the series.
