It’s been another wild week, after the D.C. Attorney General sued the government for attempting to install the head of the D.E.A. as D.C.’s emergency police commissioner. Following an emergency hearing, US Attorney General Pam Bondi backed down and re-wrote the directive. But Andrew and Mary highlight why that’s just the start: it’s no longer just the D.C. National Guard being deployed in the nation’s capital, National Guard units from five other red states are being sent to the city, making a complicated stew of who’s in charge and who has jurisdiction. Next, they weave this thread into last week’s trial over whether California’s National Guard performed law enforcement operations in Los Angeles, a potential violation of The Posse Comitatus Act. And with Russia and Ukraine so much in the news, Andrew offers some reflections from the 2019 Special Counsel’s report that exposes Russia’s long-held goal of taking over the Donbas region. And last up, Andrew and Mary fill listeners in on two DC Circuit cases that have their attention: a decision allowing the Consumer Financial Protection Bureau to be dismantled and another that allows Trump to withhold billions in foreign aid.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back to “Main Justice.” It is Tuesday morning, August 19th. I’m Andrew Weissmann and I’m here with my co-host, Mary McCord. Hi, Mary. How are you?
Mary McCord: Good morning.
Andrew Weissmann: You know when I say that, I mean, how are you on a personal level.
Mary McCord: I know. I am alive and had a run this morning, so I suppose that’s all good.
Andrew Weissmann: Yes.
Mary McCord: That’s about all I’m going to say about how I am.
Andrew Weissmann: Right. During COVID, all these people did incredible things, but I did things which was revert to like my 60s roots and I make yogurt and I make granola, which are like the two things I lived on in college. And you know what I did last week? I made sheep milk yogurt.
Mary McCord: Oh my gosh, that’s awesome.
Andrew Weissmann: And I made granola.
Mary McCord: I didn’t know you did those things.
Andrew Weissmann: Yes, exactly.
Mary McCord: I didn’t peg you as a make your own homemade granola and yogurt person. So that’s a whole another side of you. I might’ve thought you would distill whiskey or something, but not make your own yogurt.
Andrew Weissmann: I drink the whiskey. I told somebody that if I start canning things, that’s when you need to like come rescue me and stick me in a booby hatch.
Mary McCord: Okay. I made dill pickles last night because I have so many cucumbers and they’re in mason jars, like real canning. These are like refrigerator dill pickles, but dill. I’ve made other pickles before –
Andrew Weissman: Yes. That’s pretty good.
Mary McCord: — but dill spears. Yeah, I’ll send a picture.
Andrew Weissman: Wow.
Mary McCord: Okay. Everybody’s like, are we going to talk about law today?
Andrew Weissmann: Speaking of dill pickles, you know what is sitting in my refrigerator right now is I am making gravlax.
Mary McCord: Are you? Oh my God. Now I’m really impressed.
Andrew Weissmann: Can I just say, now this is the thing. For anybody who is listening to this, who is actually a chef or even remotely a chef, they’re sitting there going, hey, Weissmann yogurt, so easy. Granola, so easy. And the trick thing with gravlax is people are probably going, Oh, gravlax. It sounds so fancy. Beyond easy. The work is basically sticking it in the refrigerator for like three days.
Mary McCord: Yes. Our next podcast will be the sort of like home self-sustaining –
Andrew Weissmann: Right.
Mary McCord: — homemaker homesteader podcast with Mary and Andrew.
Andrew Weissmann: Right. We could report on the edibility. Is that even a word?
Mary McCord: It is now.
Andrew Weissmann: Of gravlax and dill pickle spears.
Mary McCord: There we go.
Andrew Weissmann: So, Mary, in addition to the cooking show that we have now launched today –
Mary McCord: Yes.
Andrew Weissmann: — what’s going to be our side hustle in terms of discussing actual news that people might care about rather than two amateur chefs?
Mary McCord: Okay. In that type of news that we actually have some experience in talking about, we will start by following up on last week’s discussion of the quote/unquote “D.C. police takeover” because there was a big development last week that caused the D.C. attorney general to actually file suit and have an emergency hearing. We’ve got some changes there. We also have some changes with respect to the deployment of the National Guard. It’s no longer just the D.C. National Guard. We have National Guards coming in from other states. So we’ll talk about that. And related to that, we’ll talk about the trial out in L.A. that concluded last week, which was really about those deployments of the, there was a true federalization of the National Guard and whether they were violating the Posse Comitatus Act by engaging in domestic law enforcement activities. And there’s a few other sort of immigration related issues that we’ll also reach.
Then, you know, given the Trump Putin meeting in Alaska on Friday, the meeting yesterday here in Washington, D.C. with President Zelenskyy and other European leaders that has caused, I know you in particular, Andrew, to sort of reflect back on some of the things that you and others who were on the Mueller team discovered in the course of your investigation about some pressure coming from Putin related to the Donbas region in Ukraine.
And then finally, we do want to talk about something we haven’t had a chance to talk about yet, which is two D.C. circuit cases that went very badly for the challengers to executive action. And those had to do with a decision related to the freeze of foreign aid and impoundment of funds Congress had appropriated for foreign aid and also the dismantlement of the Consumer Financial Protection Bureau, the CFPB. Both are things where I think there could quite possibly be en banc review.
Andrew Weissmann: Right.
Mary McCord: And so, we’ll see, but we’ll let people know what the rationale was there.
Andrew Weissmann: These are both decisions, as you said, that the reason we’re discussing them is they’re important in and of themselves. And, you know, it seems like one or both could end up either en banc or going to the Supreme Court. So we’ll talk about that.
With that, Mary, I’m going to ask you a question about what’s going on in D.C. Everybody knows that there was sort of litigation over this and Pam Bondi was trying to, I’m going to use the phrase that non sort of legal term, take over the MPD and–
Mary McCord: Metropolitan Police Department.
Andrew Weissmann: Yes, the local police department. And there was a litigation that the D.C. Attorney General brought. And in addition, you flagged this last week for us, Mary, was that now there are not one, not two, not three, not four, but five states that are sending National Guard into D.C. And so you’ve got sort of two sets of issues here. One is sort of like, what’s the authority to have other states send National Guard into D.C.? You know, like, can New York send its National Guard into Pennsylvania? Is it different because it’s D.C.? And then there’s this issue of just how much can there sort of be federalizing and takeover of the MPD by the Department of Justice with Pam Bondi basically saying the acting head of the D.A. is now going to be running everything, running the show.
So where do we stand on, let’s maybe take the DOJ litigation piece before Judge Reyes in D.C., where did that sort of come out?
Mary McCord: Sure. And there’s even a third issue that we can also touch on, which is this deployment of federal law enforcement throughout D.C. And it’s one thing, as we’ve talked about, for MPD to work with FBI on joint task forces and the uniformed division of secret service. They do that all the time. But we’ve got CBP, the Customs and Border Patrol, and the Enforcement Removal Operations people from ICE that are a big part of this. And there have been roadblocks and there have been detentions and things that cause other issues.
But yes, let’s start with the litigation. You know, last week when we talked, we had already had President Trump on Monday issue his executive order declaring this crime, emergency in D.C. and using Section 740 of the D.C. Home Rule Act. That’s the act, of course, that creates a self-government in D.C. and a police department that reports up through the mayor. That’s the provision of the Home Rule Act that allows the president, when he determines that special conditions of an emergency nature exist that require the use of the Metropolitan Police Force for federal purposes, he may direct the mayor to provide him and the mayor shall provide such services of the Metropolitan Police Force as the president may deem necessary and appropriate.
And that language is important because right after that, the D.C. Attorney General did not file any litigation. And the reporting here was that the police chief was meeting with the U.S. Attorney General, Pam Bondi, to discuss how this would work out, what the priorities would be, and there was going to be a collaboration. And the D.C. police chief was even somewhat welcoming of some federal law enforcement sort of supplementing their forces in the city to work on crime.
Well, that all changed on Thursday night when Attorney General Pam Bondi, the U.S. Attorney General, issued a directive that actually purported to appoint the DEA, Drug Enforcement Administration, Administrator Terrance Cole as the emergency commissioner of the Metropolitan Police Department, required everyone at MPD to report to him and said that the police chief, commanders, and others couldn’t even do anything without clearing it through him. The other thing that that order purported to do, this is an order from U.S. Attorney General Pam Bondi, was to rescind policies of the Metropolitan Police Department that were consistent with D.C. law that limit cooperation between MPD and federal immigration enforcement officers.
These are policies that are sometimes referred to and that we’ve talked about many times as sanctuary city policies. These are not unlawful, notwithstanding what the U.S. Attorney General says. They are policies that say we will do exactly what federal law requires, but then we’re not going to voluntarily do more.
Andrew Weissmann: But no more.
Mary McCord: Right, no more.
Andrew Weissmann: Right.
Mary McCord: And that included things like we will not detain somebody in jail on a civil administrative immigration warrant when there’s no criminal warrant and no criminal or court-ordered reason to detain the person. That would subject actually D.C. to potential liability for Fourth Amendment violations and other constitutional violations. Okay.
Andrew Weissmann: Mary, so I saw that order, and then the next thing I read was, which I thought, okay, this is not helpful if you’re the law enforcement people on the ground, was the D.C. Attorney General saying, that’s not lawful.
Mary McCord: Exactly. That’s right. And that came out before the litigation. D.C. Attorney General Brian Schwalb wrote a letter to the police chief saying what the Attorney General is trying to do here is not lawful, it is not consistent with the Home Rule Act, and you don’t have to comply. He then, he and his staff, pulled an all-nighter and filed the next morning, emergency litigation, a complaint, as well as a motion for a temporary restraining order. By now we are at Friday morning. And the judge, it was assigned to Judge Ana Reyes in the D.C. Federal District Court. She scheduled a hearing for two o’clock in the afternoon.
Andrew Weissmann: That same day.
Mary McCord: That same day. Because this is an emergency, right? You’ve got who is leading the Metropolitan Police Department, right? This is a major city, 750,000 people. Like, you got to know who’s in charge.
Andrew Weissmann: Mary, I mean, I know that for you and me, we sort of had to be thinking back to our roles where we were surrounded by law enforcement agents, and your job is to give them clear guidance.
Mary McCord: That’s right.
Andrew Weissmann: And here you had the Attorney General of the United States and the Attorney General of D.C. at loggerheads saying that one or the other is wrong. And my heart sort of went out to the people in the field, but also the populace, because they’re entitled to effective law enforcement, but also the people in law enforcement, they’re basically going, just tell us what the law is.
Mary McCord: Yeah, who are we reporting to?
Andrew Weissmann: Exactly. So this goes before Judge Reyes, and what happens?
Mary McCord: So she has a hearing, and she makes clear from the very beginning that she really would like the parties to work this out. She also makes it clear that she does not see how taking over the police is actually consistent with the Home Rule Act, because remember that language I read. When the president makes this declaration, and she says, we’re going to put aside for another day whether there’s really an emergency. I’m not going to address that. But all he can do is direct the mayor to provide him, and the mayor shall provide, such services of the MPD as the president deems necessary and appropriate.
So that doesn’t say he gets to take over the MPD, says he asks the mayor to provide services, and the mayor can provide them. The U.S. Department of Justice attorney arguing for the U.S. government took an extremely capacious reading of this and basically pointed to the language, “As the president may deem necessary and appropriate to argue.” That means if he wants to take it over, he can take it over. She’s like, not so fast. So she directed ultimately the parties to take a beat to see if they could reach a resolution and issue a new directive. And she said at the end of her hearing, “And if you don’t by 6:30 tonight, I will issue a TRO that says that Terry Cole cannot be the commissioner of the police department that enjoins that part of Bondi’s order, and then we’ll take up the other parts another day.”
With respect to the other parts, she had said throughout the hearing, “Isn’t this a matter of how the Bondi order is written?” In other words, Bondi purported to rescind police department directives on basically sanctuary city policies. And if Bondi can’t take over the police department, she can’t rescind policies. But couldn’t she, as the president’s delegee, request services that would amount to immigration enforcement?
And this is where I think we’re really at play now, because the D.C. A.G. says, well, no, because those violate D.C. code, right, that says you can’t provide those services. The government says, absolutely, because the president can ask for whatever services are necessary and appropriate.
And she did seem to be leaning toward the government’s view here. She says, well, how could it be that D.C. code could essentially overrule the services that a president might request? Because if D.C. code could overrule it, then the D.C. Counsel could pass a law that says, essentially tries to overrule the entire Section 740 of the Home Rule Act and says, you know, you can’t provide these services.
So this is an area that’s still in contention. So where we landed was Attorney General Bondi on Friday evening did put out a new order that completely wiped out, withdrew the previous order. The new order says that Terry Cole is now the A.G.’s designee for the duration of the emergency, declared by the president. And he is the person who will be directing the mayor of the District of Columbia to provide such services of MPD as the Attorney General deems necessary and appropriate. So he’s no longer essentially the police chief.
Andrew Weissmann: Right. But can I just say as a matter of process, judges very often do this, just like a little note to a listener. Judges very often say, look, this is where I’m thinking. This is where I am. I’m still listening to you. I haven’t made up a final decision. Sometimes they say, I actually am pretty sure this is what I’m going to do, but I’d like the parties to go back and see if you can work it out. It sort of just helps in so many ways.
First of all, it’s a dispute. So if the parties can work it out, there’s no dispute. Also, it sort of helps for appeal to not have that if the parties can agree. And here, it’s sort of what’s sort of remarkable is DOJ caved. The judge was like, no, you cannot take over the MPD. And this is not one where you saw DOJ saying, we’re going to go up to the circuit, we’re going to go to the Supreme Court. As your point is, they may get to sort of what they want anyway, but it was noticeable to me that they backed down.
She also did table some larger issues, like whether there’s a federal purpose, whether this was correct as a matter of whether Pam Bondi’s order in and of itself had identified things that justified what was happening. She sort of said, that’s not really what we’re dealing with right now. I’m not going to second guess. For now, it’s not before me, is there a legitimate federal purpose? And things like that. So there were sort of narrow issues, but what’s remarkable is she really advanced the ball very quickly.
Mary McCord: She did. And you’re right, those issues that she tabled, the bigger issues, right, is there a crime emergency, is this a federal purpose, were partly because the D.C. Attorney General did not make those part of the temporary restraining order motion.
Andrew Weissmann: Right.
Mary McCord: He included those in the complaint. So she’s like, right now, we’re just assuming that he can do something here. And the question is, did he go too far? And you’re right. The Department of Justice completely retracted on the taking over part. So where I said before, now the next issue is going to be, what about these other parts? Because the other part of the Attorney General Bondi, U.S. Attorney General Bondi’s new order was to request the following services. And these include assistance with the enforcement of federal immigration law, notwithstanding D.C. Code’s sanctuary city law, right? Assistance with locating and apprehending and detaining quote-unquote “aliens.” So this is where we will have to see what the D.C. Attorney General decides to do, whether to challenge that or not. Because the D.C. Attorney General challenged the first order, it had to withdraw that motion for a temporary restraining order after that first Bondi order was withdrawn and replaced with this one. So that’s where things stand right now on that part.
Andrew Weissmann: So Mary, should we take a break and come back? And I teed up the second issue about the National Guard. And I am particularly interested in this issue of different states, now, currently five states sending in, reportedly, their National Guard. And so let’s come back and talk about how is that possible? It just seems so anathema to a federal system, a literally federal system, which is that the states can’t just start attacking each other. I mean, I know a lot of people talk about that we are constantly relitigating the Civil War, and I don’t mean to use hyperbole to suggest that’s what this is, but there’s the kernel there of what is it that different states can suddenly send in troops.
So let’s take a break and come back and go through the legal issues, even though I think you and I sort of also, this is an area where we might see this also in big picture, this whole idea of militarizing –
Mary McCord: Yes. Oh, yes.
Andrew Weissmann: — and getting us used to the idea of militarizing the streets of America.
Mary McCord: Let’s do that.
Andrew Weissmann: How’s that for a lead-in?
Mary McCord: Yeah, really.
Andrew Weissmann: Okay, let’s take a break.
Mary McCord: Okay.
(BREAK)
Mary McCord: Welcome back. Well, as Andrew teed up, in addition to the D.C. National Guard being deployed now in Washington, D.C., under the authority of the president as the commander in chief and the secretary of defense, because the D.C. National Guard reports up through federal command, unlike the National Guards of the states, we’ve now had, first started with three states, now we’re up to five states, committing to sending, and I believe the first did arrive here earlier this week, sending portions of their National Guard, hundreds of troops to the capital to also assist in this crime-fighting mission.
And people may be wondering–
Andrew Weissmann: Mary, can I just give you the five states, so everyone has it in case people aren’t up to speed? It’s Ohio, South Carolina, and West Virginia. That’s the first group.
Mary McCord: The first three.
Andrew Weissmann: And then the second group were Mississippi and Louisiana.
Mary McCord: Yes, those are the states. And there could be more as well. And so people might be thinking, what the heck? But they also might be thinking this is reminiscent of 2020, when I recall after George Floyd was murdered and there were Black Lives Matter protests in D.C. and many other parts of the country, we had National Guards from so-called red states also showing up on the streets of District of Columbia.
Andrew Weissmann: Controversially.
Mary McCord: Controversially. And at the time, honestly, we were all questioning what authority are they there under? We did not learn that until later when then Attorney General William Barr sent a letter to the mayor, Mayor Bowser, who is still the mayor, by the way, of the District of Columbia, explaining that those National Guard had been mobilized under Title 32, Section 502(f). So that is a section of the U.S. Code that applies to the National Guard that allows National Guard to be called forth and deployed in order to perform training or other duty in addition to that that’s prescribed elsewhere in the law.
That other duty has been interpreted not so much by courts, but by the government as applying to supporting operations or missions taken at the request of the president or the secretary of defense. It has been used for airport security post 9/11, support to border operations, emergency assistance after hurricanes, for example. It has not been used for traditional law enforcement. It has been usually used as sort of backup protective functions. But when National Guard are under Title 32 authority, in other words, they have not been federalized by the U.S. government, which would make them essentially the same as U.S. Armed Forces under Title 10. When they’re under Title 32 authority, they are not subject to the Posse Comitatus Act. That is the criminal statute that says that U.S. Armed Forces and federalized National Guard may not engage in domestic law enforcement. Interpreted to be things like the classic arrest, detention, search, seizure.
So what Bill Barr said in this letter is that’s the authority that they had been deployed under. And that is something where I think if we were talking about state to state deployment, there would be a very, very strong argument that it could only be done with the consent of the governor of the receiving state. Because again, if you’re still under your own governor’s authority, which is what you are under Title 32, you haven’t been federalized, you National Guard members. So the National Guard is still reporting to their own governors. If you then had one governor send the National Guard into a state that is not consenting, you would have one National Guard, one state National Guard invading another state’s sovereignty that would seem to be pretty blatantly unconstitutional.
But D.C. is not a state. It’s a federal enclave. And so the mayor can object all she wants and did back in 2020, and that at least according to the U.S. government would not change whether or not 502(f) could be used in this way.
Andrew Weissmann: This is why after the Black Lives Matter protests, there were a lot of people calling for the law to be clarified because to the extent that there’s any ambiguity, D.C. in this regard should be treated like a state. And so that is what I’ll call the potential loophole for allowing this. There’s not a lot of litigation. I mean, there’s not a lot of law on this. I mean, this is an open issue, but it is one that Congress could deal with.
Mary McCord: They absolutely could.
Andrew Weissmann: And so that’s exactly, people remember this was a big deal in 2020. There was a whole issue and lots of reports of the president wanting to take really severe action against protesters, up to and including a report of potentially shooting them. I’m old enough to remember Kent State. I never in a million years thought we’d be in that world. And this was very controversial.
And I do think that even though we’re both lawyers and our goal is to make sure people understand the legal issues, and I think I’ve heard you say this, Mary, but I’m going to crib from it, which is it’s so normalizing, even if it turns out to be partially or even fully legal, you are normalizing something that is really dangerous.
The idea of having the National Guard and the military perform these functions, whether it is not for law enforcement functions, but it is just assisting and protecting, we’re not in any sort of real emergency, in my view. There’s no sort of quelling the kind of violence as opposed to implementing policy or scaring people from asserting the First Amendment activity. And so the idea of normalizing the use of the military, whether we’re talking about the West Coast, the East Coast, or the border down in Texas, all of that is so dangerous as a policy matter.
Mary McCord: It’s totally dangerous as a policy matter. Can you imagine if this kind of thing sort of spreads? Because we’ve already had L.A., and this is going to be a good segue to that. Are we supposed to get used to seeing fully geared up, kitted up military on the streets? But to talk about the other impacts beyond even normalization, right? Already there’s reporting here about precipitous drops economically to tourism in D.C. in terms of online restaurant reservations and hotel reservations and that kind of things, because people outside of D.C. are thinking, oh my gosh, is the military flooding the streets? Are the law enforcement flooding the streets? Is this a place I can go enjoy vacation and I can tell you I’ve been downtown every day and you can feel free to come downtown and go to the restaurants?
So there’s this economic impact, and we know L.A. also expressed this, but there’s also, these are National Guard members from other states. Remember, National Guard members have jobs. They have families. They are part of the National Guard so that they can serve their country and their state when there is a need. And yes, they are used to deploying for both of those things, sometimes overseas, right, to work directly with our military overseas. Sometimes they’re deployed in state active duty status after natural disasters. In California, there’s been fires, right? So they’re being taken away from their primary responsibilities for political purposes to come to D.C. and do question mark exactly what.
So think about those people too, right? Like, I got to leave my family. I got to leave my job and go there. And taxpayers, you know who pays for this? The federal government, even though they stay in Title 32 status and they report up through their governor supposedly, they are paid for by the federal government. So all of you out there who maybe think, ah, this is a D.C. problem. You know, I’m not worried about it. All of us as taxpayers are paying for this, this massive deployment in the District of Columbia.
Andrew Weissmann: Shall we turn to what is going on in the L.A. case? But the L.A. case is actually being litigated in San Francisco before District Judge Charles Breyer. And he, we talked just briefly about it last time and the time before, I think also, that there’s a trial out there. What is going on when we last talked about this, the issue that he was raising seemed to be, Mary, a factual issue. What were the National Guard doing? Were they arresting people? Were they doing something that looked like law enforcement? Or were they doing something that was protecting federal property and federal people? And of course, we’re lawyers, so the line between those two can be murky, and that’s something the judge is there to work out. But it’s sort of like this issue was very factual. What were they doing? And they heard from witnesses for, I think, Monday, Tuesday, I think a little bit on Wednesday.
Mary McCord: Wednesday, I think, was just arguments. But yes, Monday and Tuesday.
Andrew Weissmann: Yeah, and then they had arguments, so quick trial. What’s going on now?
Mary McCord: So this is so interesting because this relates directly to this posse comitatus issue we’ve been talking about.
Andrew Weissmann: Exactly.
Mary McCord: Because in L.A. the National Guard was federalized, then they came under Title 10. And remember, Marines were also deployed there, which are always acting under Title 10, which means posse comitatus act would apply unless there is an exception. And initially, in the initial stages of the case, the U.S. government hadn’t really argued there was an exception. They had argued two things. They’re not engaging, just as a matter of fact, they’re not engaging in domestic law enforcement. And what they are doing in terms of protecting federal property, federal agents, federal functions is something that is permitted, which is this is just the Office of Legal Counsel in the Department of Justice who has had this position. It’s not something that has been fully fleshed out in the courts, that that kind of thing is permitted to protect federal property and federal functions.
As we’ve now come into this trial, because that’s why Judge Breyer said, OK, well, I’m going to have a trial because the plaintiffs are saying, actually, these National Guard, Federalized National Guard, have been engaging in detentions and things that are equivalent to arrest and domestic law enforcement. They supported a raid of a marijuana farm, right? They supported raids in parks in L.A. And the plaintiffs are saying that’s just regular domestic law enforcement. That’s what the trial has been about. But boy, the government made a much more vigorous argument right before trial that actually the deployment is an exception to the Posse Comitatus Act, that the federalization under Title 10, Section 12406, which is not a declaration of Insurrection Act but operates similarly, they’re saying that is an exception to posse comitatus. There’s no cause of action under posse comitatus, which means the state of California can’t sue. It’s a criminal statute. It doesn’t create some sort of right to bring litigation. And that at any rate, even if there were individual acts of law enforcement, that wouldn’t be enough to raise sort of an ultra vires acting outside of statutory or constitutional authority. And so they can’t even bring this case. And by the way, we’re not engaging in domestic law enforcement.
So they’ve really kind of gone aggressive on a Posse Comitatus doesn’t apply. And all of that is before Judge Breyer. And it was interesting because reading just some synopses of the testimony from people who, you know, one person who led that Team 51, which was the deployed National Guard forces, and other actual military folks who testified, who testified a lot about how they weren’t engaging in domestic law enforcement, but they had a memo, and they’ve been trained on posse comitatus. And, you know, they weren’t going to do any of that. But they did have a memo from the Secretary of Defense, talking about the protection of federal functions being an exception to posse comitatus, a constitutional exception. And so that’s what they were following those orders.
So all of this, and we will have to get into it when Judge Breyer rules, all of this is now pending in front of Judge Breyer.
Andrew Weissmann: So let’s go across to the other coast.
Mary McCord: Yes.
Andrew Weissmann: To New York.
Mary McCord: We’re going back and forth.
Andrew Weissmann: Exactly. So now we’re going to go from your hometown to my hometown–
Mary McCord: To yours.
Andrew Weissmann: In New York. Judge Lewis Kaplan, who some people may remember, he was the judge who oversaw the E. Jean Carroll civil cases, plural. And he has a case where he issued a temporary restraining order, and it was brought by a detainee, an immigration detainee, against Kristi Noem and others.
Mary McCord: That’s a class action. Yeah.
Andrew Weissmann: And it was brought as a putative class action. He hasn’t ruled on that yet. And he has issued a TRO. And what was the claim? The claim was the conditions of confinement of these immigrants at 26 Federal Plaza. Now, Mary, you and I know 26 Fed really well. We call it 26 Fed. It is where the FBI and all sorts of other law enforcement are located. It is opposite the courts in downtown Manhattan. And they’re actually holding people there. And the allegation, which clearly Judge Kaplan believed, at least for the purposes of finding a TRO and those carrying their burden, was a series of affidavits. They were contested by ICE. I’ll get to that. So there are two sides to the story. But Judge Kaplan agreed with the sworn declarations of immigrants that there are numerous people in sort of two holding cells. There are videos that you can see at the New York Times website. So this is one where you not only have sworn declarations, but, you know, I actually went back and watched both videos.
I mean, there are no beds. There are multiple, multiple people in the same room. There are open toilets in those rooms. And just to be clear, people are sleeping on the floor on these very thin, you can’t call them a mattress. It’s not a mattress. It’s like a piece of mylar. And then there’s like a very thin cotton thing. That’s what it appears to be. It’s certainly not a mattress. And he ruled in a way that it is the kind of thing that he ruled on something that is basically–
Mary McCord: Treat them like human beings. That’s what he ruled.
Andrew Weissmann: Exactly. This is a civilized country. He ruled that they cannot be kept right near the toilet. There has to be an area separate. They have to have a private space in which to change. They were only getting two meals a day. They have a right to request three meals a day. They have a right to call counsel. There’s a whole series of part of this decision about that counsel has to have a number they can call. It has to be responded to by people. They have to have a way of communicating with their clients in private. The place needs to be cleaned. They need to have clean bedding. They need to have toiletries.
Mary McCord: Including for females, because they had none. Toothbrushes, toothpaste.
Andrew Weissmann: You get the idea of complete squalor. And let me just, because I want to give the other side, and I think it speaks for itself. This is what ICE has said in response. They say it’s not true. They say that the agency was holding 24 detainees in its four holding cells. I should say that Judge Kaplan said, I’d like to know the history of that. I wanted to know when that all happened. I want to know what’s the history. Is that just what you’re doing now in light of the lawsuit? But what was it at the time? And I don’t think there’s been an answer to that, which seems to see why there’d be a TRO here.
The other is that, here’s the quote from ICE, “This order and this lawsuit are driven by complete fiction about 26 Federal Plaza. The fact of the matter here is the Trump administration is carrying out the largest deportation operation in American history and is removing the worst of the worst from American communities.”
Now the first part of that saying that’s not true, that’s what the courts are for. There can be a hearing and there’ll be a factual determination on that. The second part of that is, once again, an irrelevancy and shocking. First of all, it is simply not true that these are the worst of the worst. I mean, we have seen too many examples of people who are not the worst of the worst. That’s not to say there aren’t people who should be deported. That has nothing to do with how you treat them.
Mary McCord: This is about the conditions of the confinement and their right to counsel and to consult with counsel.
Andrew Weissmann: Exactly.
Mary McCord: That’s right. I mean, and so it’s so shocking to have that kind of political statement put into this when anybody in law enforcement should be thinking about it, not from a political point of view, but from a rights point of view. I have no problem with them denying factually the allegation, if that’s true, and having that litigated. That’s fair. But the second part of that is just I really think it’s important for people to understand what our government is saying and doing here.
So Mary, let’s take a quick break and we’re going to come back and we’ll talk a bit about the Ukraine-Russia piece. I want to flag something for people and then we’ll come and talk about the two D.C. decisions that we also want to flag for people.
Mary McCord: That’s right. So take a big breath, refill your coffee, and we’ll be back in a minute.
Andrew Weissmann: Or whatever else you’re drinking.
(BREAK)
Andrew Weissmann: So, Mary, one thing I wanted to flag for people is obviously everyone who is listening to this has got to be very up to speed, at least the broad strokes of the President met in Alaska with President Putin. There then was the subsequent meeting with President Zelenskyy and major leaders of the E.U. and Britain at the White House. And one of the things that came out of this is the reporting that what Russia wants is they want Ukraine to cede to them the Donbas. The Donbas is the eastern part of Ukraine and it is one where there had been a lot of industry pre-invasion by Russia.
I’m not here to talk about the idea of the anomaly of agreeing to that which is giving somebody something after an invasion. That’s not really the purpose of this. I wanted people to understand that what Russia is saying when they say we want to have the eastern part of Ukraine, not only is it just gobbling up a very, very important part of the economy for Ukraine, but this is exactly what they were trying to do. People remember I worked on the Mueller investigation. This is precisely what was proposed to Paul Manafort via what I’ll call a Russian cutout, Konstantin Kilimnik, in an in-person meeting on August 2nd, 2016. I’m recounting public information that is on pages 129 and 130 of the first volume of the Mueller report. It’s also recounted in the Senate Intel report, the bipartisan Senate Intel report. People remember that Marco Rubio signed off on that.
And what Konstantin Kilimnik did is he came and said, I have a message from the former president of Ukraine, Viktor Yanukovych,” who was somebody who worked very closely with Paul Manafort for years. And this plan was described by Paul Manafort. He agreed that it was a backdoor plan for allowing Russia to control the eastern part of Ukraine. And he said that what it needs to succeed is a minor wink, a sort of, I think it was described as a very minor wink from Trump. And that was being proposed that the incoming administration would do this. And this plan was proposed repeatedly from August of 2016 into 2017. But people remember, at least I do, Paul Manafort was sort of on the outs very quickly right after August 2nd.
So just to be fair, the report doesn’t say that we know that Paul Manafort communicated this to the campaign and then to Donald Trump. Donald Trump was asked about it in written questions and says he doesn’t recall whether this came up or not. And so we don’t have that connective tissue. But I do think what’s important to remember is Russia has been trying to do this–
Mary McCord: For a long time.
Andrew Weissmann: For a long, long time. And this is the precise ask. So when I saw this, I was like, my God, this was so important to Russia that Konstantin Kilimnik flew to New York City from Russia in August of 2016 at the height of the campaign. Remember, this is August–
Mary McCord: Right. 2016 is, I mean, that’s the year of the election.
Andrew Weissmann: Exactly. And this is in August when campaign managers like Paul Manafort and on the Hillary Clinton side are very, very engaged in the campaign. And here this is a meeting where it’s important enough that the communication from Konstantin Kilimnik, who the FBI assessed as having ties to Russian intelligence, said that if you get this wink and a nod, that this will be something that is communicated and dealt with at the highest levels of the Russian government. Presumably that means President Putin.
Mary McCord: Yeah.
Andrew Weissmann: So I wanted people to sort of understand this long history and what Russia has been now trying to accomplish this through military invasion, an unprovoked one that has caused the deaths of adults and many, many, many children who have been killed and abducted.
Mary McCord: Yeah. And, you know, again, what he said he wanted, right, was Donbas. And, you know, that’s one reason I think that all we saw all the European leaders coming with President Zelenskyy yesterday to try to explain some of the issues with that. Can you imagine if you’re a resident of that region and feel a little bit like, you know, what’s going to happen to you? I would also harken back even before these discussions you’re talking about in 2016. Remember, we had an invasion of Crimea. And Crimea is now part of Russia. So like–
Andrew Weissmann: But it’s not legally.
Mary McCord: Yes, yes, yes. That’s right. You’re right.
Andrew Weissmann: Ukraine has not ceded it. It was invaded. It was taken. But it’s not that they have said that’s fair.
Mary McCord: No, that’s right. They’ve never ceded anything.
Andrew Weissmann: Yeah. You can point to history and lots of examples of like there’s a war and then it sort of gets resolved. But you have to go back to your original territories. Obviously, there are other examples. But it’s such an example of is it might makes right? Or is there something to the idea, at least of the United Nations, where there is a law of nations and this is a violation?
Mary McCord: That’s right. So much to do. But I’m glad you gave us that reminder that we’ve been here before.
Andrew Weissmann: So let’s talk about the two D.C. decisions in a nutshell. Before we get to the two dissents, Judge Pillard and Judge Pan, what were they about? What were the two cases? Mary McCord: Right. As soon as President Trump took office, right, the executive orders were coming fast and furious and DOGE was still extremely active and going into departments and agencies and dismantling and foreign aid was being cut off, et cetera, et cetera. And one of the earliest things to happen was the cutting off of foreign aid. And that included to USAID, which has been almost completely shut down at this point. And it included the aid that we supply historically, the United States around the world to help sustain health care and the economy, et cetera, in other countries so that they will be good allies to us.
I mean, these are all for our own foreign policy and national security interests, not just because like Americans have big hearts and want to help others. That’s maybe part of it, but it’s all in yours to the benefit of the United States.
So at any rate, one of these cases is about that cutting off of foreign aid. The other one is about the dismantlement of the Consumer Financial Protection Bureau. And both of these were among cases brought early on. And they’re just a couple of lots and lots of challenges to what turned out to be lots of cutting off of grants and aid and lots of dismantlement of departments and agencies. And people may remember the foreign aid case was one of the first cases to go up to the U.S. Supreme Court on the emergency docket because the district court judge in D.C. issued an injunction requiring the government essentially to pay its bills, to pay the grantees for the things that they’d already been given grants for. And the government wanted to stay that ruling. And the Supreme Court said, no, pay the bills and judge in D.C. get a careful accounting of something. Make sure you’re very specific about things. But they refused to stay as order.
One of these cases is that case. Ultimately, the judge did a preliminary injunction and in a two to one decision, the majority, in an opinion written by Judge Henderson, ruled that the district court erred in granting the relief. The relief was requiring the government to make available for obligation the full amount of foreign assistance funds that Congress had already appropriated for fiscal year 2024.
We weren’t even talking about stuff far into the future, but funds already obligated. And that also involves something that people may have heard about the Impoundment Control Act, right? The president is not permitted to just decide he’s going to impound and not spend funds that Congress appropriated for a particular purpose.
That act requires him to send reports and request if he wants to not spend the money. And since this case, he has done some of that kind of requesting. But at the time this case developed, he hadn’t made any of those requests. And what the two judges in the majority held was that not that what President Trump did was fine, not that it was okay to impound these monies and not pay them out, not the merits. They said the plaintiffs here, which are employees of foreign aid departments and agencies and grantees, don’t have a cause of action to press their claims. The employees have to bring their cases under sort of the Civil Service Protection Act, which basically is kind of defunct because those cases go up to the Merit System Protection Board–
Andrew Weissmann: Which doesn’t exist.
Mary McCord: They fired all the Democrats on that, so it’s not functioning. And then he says the grantees don’t have a cause of action under the Administrative Procedure Act because review is precluded by the Impoundment Control Act, which is just something that doesn’t say that review is precluded. It simply gives the comptroller general the authority to bring a case. It doesn’t say no one else can bring a case. And more fundamentally here, the majority said the plaintiffs can’t turn this into a constitutional separation of powers claim because this is really just about violating a statute.
That’s the shocking part.
Andrew Weissmann: That to me is the key. That’s the part where they basically say this is just a statutory issue and the statutory scheme gives the authority to bring the suit to a different part of the government. And so the government accounting office could bring this suit. And again, we’re not saying the suit’s not meritorious. We’re not saying what the president did is lawful, but it’s the wrong plaintiff. And the plaintiffs who ground this on both the statutory and constitutional claim do not have a constitutional claim. And that is the dissent is you’ve got to be kidding. And here on page 31, Judge Pan says, “The power that the president attempted to assert, a general entitlement to disobey duly enacted laws for policy reasons, is also known as dispensing power.” Dispensing power meaning I can just dispense with the law. And she then says, “It is uncontroversial that such a presidential power does not exist.”
Mary McCord: That’s right.
Andrew Weissmann: And then cites like over and over and over and over all the Supreme Court and lower court decisions that say that there is no such authority. So this is one keep your eye on as to whether it goes en banc.
Mary McCord: Can I say one more thing about this? Remember, this is an area where Judge Henderson last week said the spending power is Congress’s power. Yes. And that is why she said that when Congress had decided that you have to have this website that talks about how the executive is using the money appropriated, that’s Congress’s authority. And that’s why she refused to stay. You know, that’s why she wrote in support of Congress’s authority last week.
Andrew Weissmann: It does suggest though that if the right person brings the case, the right entity that she might do it. But what’s odd is that she doesn’t find that to be a constitutional issue. And so that’s sort of that case.
Should we turn to the second case, which is the CFPB case and there Judge Katsas and Judge Rao are in the majority.
Mary McCord: That’s right. Judge Katsas writing the opinion.
Andrew Weissmann: And Judge Pillard is in dissent. And there, I’m going to give just a nutshell. Basically, this is not doing justice to the majority, to be fair, but I’m just going to give you an overview. He basically says it’s not really final. It’s like we don’t really know that they want to get completely rid of the CFPB, but see actual factual findings by the district court.
Mary McCord: Terminating employees, canceling contracts, declining additional funding, moving to smaller headquarters, requiring a–
Andrew Weissmann: Mary, you’re so cynical.
Mary McCord: And not to mention public statements by the president and others, we’re getting rid of it, right?
Andrew Weissmann: Oh, Mary, don’t be so literal.
So basically, they sort of hang their hat on saying, well, procedurally, it’s not a final order. And I think they confuse the issue of it’s not a final eradication of the agency. It’s pretty final with respect to what they’re doing. So they basically say it’s not really appealable. And again, I’m just going to cite–
Mary McCord: Again, not on the merits. Let’s be clear.
Andrew Weissmann: Right. Exactly. Not on the merits. So that’s why they sort of read similarly, but it sort of results in this being able to go forward. And here’s what the dissent says. “The notion that courts are powerless to prevent the president from abolishing the agencies of the federal government that he was elected to lead cannot be reconciled with either the constitutional separation of powers or our nation’s commitment to a government of laws.”
Mary McCord: And again, the same dissenter, Judge Pillard, says, “The majority does not deny that defendants acted as the district court found, nor do my colleagues dispute that such actions were unlawful for all the reasons plaintiff alleged. Nevertheless, they elect to shield defendants’ illegality from any effective judicial oversight.”
So these cases are cases where the dissent has looked to the things we’ve talked about, Andrew, so many times. Youngstown, right? The Steel Seizure case where the Supreme Court talked about when the president has authority, its highest authority is when Congress has given it or the Constitution has given it to him. And when Congress has not provided it and it’s constitutionally committed to another branch, that’s when his power is lower.
And they’re saying, these are the principles that govern here. And what I felt like the majority was doing in both of these cases is like picking out little things. The second case in particular, Judge Katsas looks at each big thing, terminating employees, terminating contracts, and says, maybe not final. It wasn’t written anywhere. You can’t bring this case now. These are technical rulings. These are not substantive on the merits rulings, but they are dangerous because there’s so many other instances of dismantlements and cutting off aid that are now going to be impacted if these cases do not go en banc or go to the Supreme Court.
Andrew Weissmann: And very reminiscent of the Supreme Court, very disrespectful of factual findings by the district court.
Mary McCord: Yes.
Andrew Weissmann: And so that’s something that’s pretty remarkable. And both dissents bring that up, that there have been factual findings that they’re just ignoring.
Mary McCord: Yeah.
Andrew Weissmann: Okay, so keep your eye on both of those.
Mary, before we wrap up, I’m going to remind everyone that you can get your tickets to MSNBC Live 25. It’s a live community event on Saturday, October 11th. It’s at the Hammerstein Ballroom in Manhattan. Tickets are on sale at msnbc.com/live25. And we’ll have a link in our show notes.
Mary McCord: Thanks for listening. And remember to subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free. You’ll also get subscriber-only bonus content.
Andrew Weissmann: This podcast is produced by Vicki Vergolina, Bob Mallory is our audio engineer, Bryson Barnes is the head of audio production, and Aisha Turner is the executive producer for MSNBC Audio.
Mary McCord: Search for “Main Justice” wherever you get your podcasts and follow the series.