When “War is peace. Freedom is slavery. Ignorance is strength” we are living in an era of alternate facts. Mary and Andrew apply this Orwellian concept to what’s happening this week, after President Trump cited section 740 of the Home Rule Act to federalize the DC police force and send in the national guard to the nation’s capital. They detail how the president was able to do this and why Congress will be the ultimate arbiter of this move. Then, they highlight some litigation befitting this theme, with Judge Breyer’s trial starting this week on the use of the national guard in Los Angeles, and some decisions including not to unseal grand jury testimony in the Ghislaine Maxwell case, plus an Appeals court blocking contempt proceedings in JGG. Last up, Andrew and Mary take a look at Judge Henderson’s opinion in the OMB case and why it deserves more attention than it’s received.
Further reading: Here is President Trump’s letter to Congress citing section 740, courtesy of the New York Times.
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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 12th. I’m Andrew Weissmann, and I’m here with my wonderful, inimitable, Katharine Hepburn-esque co-host, Mary McCord.
Mary McCord: Good morning.
Andrew Weissmann: And by the way, a busy Mary McCord.
Mary McCord: Well, aren’t we all busy right now? My goodness. And if you’re not busy, then get busy.
Andrew Weissmann: Exactly. So, Mary, we actually have a theme today. This is one where we actually were trying to figure out what’s a good way to think about what has happened this past week, and actually before, but it seemed to really come to the fore, and that is alternative facts is the way that Kellyanne Conway famously described it. But it is lies, but also a effort to make it much more difficult to learn the truth. So it’s not just telling lies, but it’s an eradication of the means by which the public can learn exactly what its own government is doing and what the facts are.
We have been here before. And people have thought about and written about government regimes that try to control sources of information so that not only can they tell lies, but it’s harder to find out the truth. And speaking of which, George Orwell in 1984 wrote about “The Ministry of Truth” and the three slogans that were up on the wall of the Ministry of Truth were war is peace, freedom is slavery, and ignorance is strength. That is obviously fiction, a novel, and he was basing it on a parable of authoritarianism that he was seeing and witnessing. And unfortunately, that is, I think, so reminiscent of what we’re going to talk about today.
So, Mary, how are we going to illustrate it? What are the topics for today?
Mary McCord: Well, that’s a great leadoff because that feels like the weird Orwellian 1984 world we’re in, where the words coming out of the mouths of government officials from the president on down through lawyers in court from the Department of Justice, oftentimes what they are saying does not actually resemble the truth on the ground.
And so we’re going to focus on that today. We will start with the president’s announcement yesterday about federalizing basically the D.C. local police, sending in the National Guard to deal with a crime problem that he claims is an emergency in D.C. But those of us who live and work here, I think, would say is not such an emergency. And I don’t want to downplay. There are victims of crime here. There is crime in the city. Of course, there is. But the idea is–
Andrew Weissmann: There’s crime in the country.
Mary McCord: That’s crime in the country, right. But the idea that this is bedlam, et cetera, is just false.
Then we’ll move into talking about the alternate facts that have been proposed or suggested or briefed by the government in litigation. We’ll talk about some of the judges in ruling on different cases. Just yesterday, the judge who was ruling on the government’s motion to unseal grand jury transcripts in the Ghislaine Maxwell case really laid into the government for completely misrepresenting what was in those grand jury transcripts factually. But we also saw a judge in the JGG case involving Judge Boasberg, a review of Judge Boasberg’s contempt proceedings buying into sort of alternate facts, and I find that troublesome.
And then we’ll talk about some of the non-litigation-related alternate facts, like the grounds for firing the head of the Bureau of Labor Statistics, allegedly for manipulating statistics to make them look worse than they are. So we are living in this weird world of alternate facts. And we need to make sure that people are really finding credible sources of facts.
Andrew Weissmann: We can end, by the way, on some good news, which is Judge Henderson, who is a conservative jurist in D.C., she’s an appellate judge. She wrote a wonderful decision about Congress’s power, but also the heart of it is about the public’s right to data.
Mary McCord: That’s right.
Andrew Weissmann: To hard, accurate data, and that the president and the White House cannot suppress it.
Mary McCord: Right. Especially we’re talking about data about how federal money is being used.
Andrew Weissmann: Yeah, of all things.
Mary McCord: Yes.
Andrew Weissmann: Yeah.
So, Mary?
Mary McCord: Should we get to it?
Andrew Weissmann: Yeah, so I had a question for you. You live in D.C. You’ve practiced in the courts in D.C. Maybe you can just give people a primer because D.C. is different than any other place in the country in terms of its jurisdiction and how it’s created.
Mary McCord: Sure. So, you know, D.C. is not a state. That’s not news to anybody listening to this. And it’s not specifically mentioned in the Constitution, but historically, Congress has basically had the control over D.C., and it is for I think more than a hundred years, the governance of D.C. was by a three-member board of commissioners appointed by the president, confirmed by the Senate. But in 1973, the Congress passed the Home Rule Act, and this created the D.C. government that we still have today and that we’ve had ever since I lived here.
So that created the mayor and the D.C. Council, which is the legislative body. It’s kind of like a state legislature, but it’s the D.C. Council because we are just a city, it’s not a state. And it created the D.C. Superior Court, which is the trial level court, the D.C. Court of Appeals, which is the highest level court in D.C. So we don’t have then a third level of a Supreme Court in D.C. for local crimes and local civil cases. It’s just two courts, Superior Court, Court of Appeals.
Andrew Weissmann: So that’s sort of the equivalent for people who are listening who are in states. That’s sort of like what we would call state crimes.
Mary McCord: That’s right. And also state civil actions, right? Like litigation that people bring against, you know, landlord-tenant contracts, whatever, that kind of thing, right?
Andrew Weissmann: Local court system.
Mary McCord: And those courts, though, you know, some states your judges are elected, in some states, they’re appointed, here, even those courts, the judges are appointed by the president and confirmed by the Senate, but they are not Article III federal judges. They are local federal judges presiding in local courts.
There is importantly, particularly for purposes of this discussion, there is no district attorney, elected D.A. There is an elected attorney general, used to be called the Corporation Counsel. That office, which is now the office of the D.C. Attorney General, defends D.C. government if it’s sued, brings civil suits on behalf of D.C. government and has a very limited jurisdiction over prosecuting crimes.
It is limited to prosecuting juvenile crimes and some, just a few misdemeanors. All other federal crimes and all adult felonies are prosecuted by the U.S. Attorney’s Office, whether they are in violation of D.C. law, which is law passed by the D.C. Council, just like a state law, or whether it is a federal criminal law. The U.S. Attorney’s Office in every other state just has jurisdiction over federal criminal law, but here, it’s both, which is one reason why the D.C. U.S. Attorney’s Office is so big, because it functions as both the D.A. and the federal prosecutor.
Andrew Weissmann: So in New York, just to be clear, there’s multiple U.S. Attorney’s Offices, which have federal jurisdiction for sort of federal congressional issues, but there’s a separate D.A.’s office. So in New York, there are many D.A.s. There’s a U.S. Attorney in Manhattan that’s at the federal level, and there’s D.A. Bragg at the state level. But in D.C., it’s all combined together is sort of the easiest way to think about it. That you have these two pieces, but in one U.S. Attorney’s Office.
Mary McCord: That’s right. And so that has some ramifications, I think, we’ll talk about when we talk about the president’s ranting about crime in D.C. But the asterisks I want to come back to is even though the D.C. Council passes laws for D.C., because again, it’s this weird federal enclave, Congress has the authority to essentially override those laws, and it has done that. Not all that long ago, D.C. Council passed a law that would have let non-citizens vote in local elections, right? Like for the mayor and for city council members, like some states and some jurisdictions allow, even though, of course, they can’t vote in federal elections. And the Congress overrode that. So Congress can just sit and let a law become a law, and then it does, it can override it, or it can later come in and change the law.
And I mentioned this because one of the things that Jeanine Pirro, the newly confirmed U.S. attorney in D.C., one of the things she complained about is that juveniles are not prosecuted by the U.S. Attorney’s Office. They’re prosecuted by the D.C. attorney general’s office, and she thinks they’re getting too lenient of treatment, and she would like the law to be changed so that the U.S. Attorney’s Office prosecutes juveniles.
Now, I will say the U.S. Attorney’s Office can prosecute juveniles when they are treated under law as an adult, that means age 16 or 17, for certain violent crimes. They can be transferred to essentially adult court and prosecuted by the U.S. Attorney’s Office. But for children under that age and for nonviolent crimes, there’s not that option. And she would like to change that. And that’s the kind of thing that Congress could change if it wanted to.
Andrew Weissmann: Before we turn to the facts, what is the law that the president invoked to say for 30 days, essentially I mean, people have used the phrase, I’m taking over. Which isn’t exactly right.
Mary McCord: Yeah.
Andrew Weissmann: But what is the actual home rule law that he invoked?
Mary McCord: Yes, I will talk about that. The taking over language, though, to be clear, the Home Rule Act provides for the D.C. government structure that we have, including a Metropolitan Police Department, a mayor, a D.C. Council. When the president says he’s federalizing D.C. or taking over D.C., he cannot do that. He cannot take over the mayor’s office, take over the police, take over the D.C. Council, absent authority from Congress. And so Congress would have to drastically change the Home Rule Act for the president to literally take over D.C.
What Congress has done is given him this limited authority to federalize the Metropolitan Police Department in certain circumstances And here’s what the law says, and this is part of the Home Rule Act, and it’s the part that President Trump invoked yesterday in his executive order.
The law says “Whenever the president of the United States determines that special conditions of an emergency nature exist which 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.”
Now, this is limited to 48 hours unless the president advises the chairman and ranking minority members of the committees on the District of Columbia in both the Senate and the House of Representatives, which President Trump did yesterday.
Andrew Weissmann: And you can read his letter. Yeah, why don’t we put a link to that letter? Because it’s going to fit in with the fact issue.
Mary McCord: That’s right. And then, if he has given that notice, then he may do this for up to 30 days, but he cannot do it beyond 30 days unless Congress were to extend that, right? So, this is what we’re talking about when we’re talking about him federalizing the Metropolitan Police Department. And what he did is he had a press conference, and we’ll give one little snippet of that press conference because it does not justify giving it any more time or attention to that.
Andrew Weissmann: And just to be clear, we’re playing this snippet solely to point out the hyperbole, which is a polite word, that is being engaged in because that is so important to our theme today, which is facts should matter. And these are things that are just not accurate.
(Begin clip)
President Donald Trump: I’m announcing a historic action to rescue our nation’s capital from crime, bloodshed, bedlam and squalor and worse.
(End clip) Andrew Weissmann: So, Mary, you seem just fine today. What’s going on? I mean, it is so Infuriating and the hypotheticals that we’ve been talking about going back to when we were dealing with the Alien Enemies Act is let’s assume the following hypothetical. In the White House, the president has a discussion with advisers and says, oh, there’s no emergency, crime is way down. He’s presented the actual facts, and by the way, NBC’s done some great reporting as have others on the actual facts about the crime statistics going down and all sorts of metrics in D.C. And let’s assume the president is aware of all that and says yeah, but I’m just going to say black is white. I’m going to say war is peace, freedom is slavery, ignorance is strength. And that’s where the courts really have to step up.
And we’ll end with Judge Henderson’s view, which is the courts are allowed to look at that. You can’t just lie through your teeth and say something that you know is not true.
But there is, unfortunately, there’s this doctrine of deference to the government and a presumption of regularity and a light touch to findings made by the president to justify action. But here, it’s so paper thin and so transparent. It’s a paper tiger.
Mary McCord: That’s right. And remember, the reason we played that excerpt, but not more of it, is because that is how he’s justifying what I read in the Home Rule Act.
Andrew Weissmann: Exactly.
Mary McCord: That there are special conditions of an emergency nature, right? So if you go to his executive order, Section 1, here’s the title. “Crime is out of control in the District of Columbia.” And he spent a large part of his press conference yesterday on allegations of a city with roving, marauding gangs engaging in violent crime left and right and how it was–
Andrew Weissmann: Wait, Mary, I’m sorry to interrupt, but wait a second. I think he’s right. I remember seeing on T.V., national T.V. violent crimes happening in D.C. I actually think the president’s right. You know when that happened? January 6th.
Mary McCord: Yes. A large roving marauding gang actually attacking the United States Capitol. Yes, we won’t get into the hypocrisy, which we talked about before.
Andrew Weissmann: But it does go to this issue of the president pretending to care about violence in D.C. is really rich when he did nothing on January 6th for hours and then finally did something and then ultimately pardons everybody. How does that square with saying I really about crime in D.C. as opposed to saying in order to trigger precisely, Mary, the statute that you have been telling us about.
Mary McCord: Well, one response to that could be, he cares about it when there has been someone on Team Trump who has been a victim just in the last couple of weeks, one of the prominent DOGE staffers was the victim of a violent attempted carjacking by juveniles, was injured, that’s a serious crime, those juveniles are being held in detention. I just read this morning I judge did not release them so when we talk about soft treatment on juveniles, they are not being released. I believe they are 14, 15 years old. That is a problem, and I do not want to downplay that.
Andrew Weissmann: Absolutely.
Mary McCord: But it is interesting, to your point, I mean, okay, a prominent DOGE staffer, he’s a victim of an attack and suddenly, we’re going to federalize the Metropolitan Police Department.
So, I think, important here and what we haven’t said yet because we’ve said a number of times that he really overplayed and overstated facts or made up facts, really, frankly in his press conference. The data is that violent crime in the District of Columbia is at a 30-year low. Yes, there was a spike between COVID and 2023, as there was in most areas of the country. That has been going down ever since then. I think that violent crime is down something like 26% this year over the previous year. There is still crime. I mean, the numbers in terms of violent crime per capita in D.C. per 100,000 people is among the high end of other cities of comparable size. It is not the highest, it is not the worst, but it does happen. Crime happens. But the idea that something that is falling and has been falling, the violent crime in the District of Columbia has been falling, to say that now we have an emergency. That’s where I think that really just defies logic, and then to overplay it such to make it sound that no one can even go anywhere in D.C. without fear of being a victim of a crime.
That’s just not the facts. That’s not what it is. People go out to restaurants. People go to the parks. People jog. People go to work. You would walk through the city, and you would not get the sense at all. But that’s his rationale for the emergency. He has appointed the head of the DEA, the Drug Enforcement Administration, to be the D.C. police commissioner. He has already met with the D.C. police chief. There’s reporting coming from the Washington Post this morning and other outlets that they talked last night and are going to collaborate together. The Attorney General, Brian Schwalb, here in D.C. came out strongly yesterday saying this is illegal, there is no emergency, this is in violation of the Home Rule Act. The mayor said this is very problematic. I can’t remember exact words, but I think is trying to just say, let’s see if we can’t muddle through. I think it remains to be seen. Remember, what we’re talking about here is taking over the already existing Metropolitan Police Department. I think in some ways what’s more troubling is what we haven’t talked about yet, Andrew, which is also deploying the National Guard, which we can come to, and also deploying other federal law enforcement agents on the streets of D.C., the FBI, ICE agents. There’s such a panoply of federal agents that all have different jurisdictions, but getting them involved more. I saw a photograph of an arrest in a kind of a nightlife area that had so many federal officers. I couldn’t even see the single person who was being arrested in this photograph because there was so many federal officers.
So, in many ways, I think that is what people will notice more than MPD. Because if you’re just using MPD, MPD is already the police force on the street. They’re already there.
Andrew Weissmann: Yes, exactly.
Mary McCord: You’re not magnifying it, but the message it sends is terrible.
Andrew Weissmann: Terrible, yes.
Mary McCord: We have to come in and we have to take over the local police. And that does merit fighting back, and it does merit strong statements from people like the D.C. Attorney General about How this really does not meet the circumstances of an emergency.
Andrew Weissmann: It’s also making the people who are sort of leading this charge, who are overseeing the MPD, who are going to be overseeing the National Guard and the other federal agents, this is not their beat. This is not what they’re good at.
Mary McCord: It’s not what they’re trained for.
Andrew Weissmann: Really, the FBI is going to do the role of the police cop. I mean, that’s not what they’re trained to do, and that’s not what their leaders are trained to do. It’s so performative and it’s so dangerous because of where this can go.
This is a perfect segue to take a break, and then we’re going to talk about the irony of the fact on the other coast, where the ocean’s on the wrong side, we’re going to talk about what is happening before District Judge Breyer, where there is a trial on the use of National Guard in L.A. So let’s take a break and we’ll come back and sort of talk about that because it relates so much to the topic that you just were raising, Mary.
Mary McCord: That sounds good. (BREAK)
Andrew Weissmann: Welcome back. Mary, we were talking about the National Guard and the idea that they can be used in D.C., but there is a trial. that started on Monday of this week before Judge Breyer in San Francisco. What’s that case about? Just bring us back up to speed in terms of why is there that case? What is the judge looking at there?
Mary McCord: Yeah, I’ll do that. And just because we didn’t talk too much about this. One of the other things that the president did yesterday is by a whole separate executive order, he authorized, he directed the Secretary of Defense to mobilize the District of Columbia National Guard and order members to active service in such numbers as the Secretary of Defense deems necessary to address the epidemic of crime in our nation’s capital.
So people might think, wait a minute, a few months ago, didn’t the president do something like that in Los Angeles? And that was a different type of mobilization because what he did is he actually federalized the National Guard there, not under the Insurrection Act, but under a different federal statute that’s Title X, U.S. Code, Section 12406, which also has similar predicates to the Insurrection Act. It has to be done for a purpose to either repel an insurrection or a rebellion, or, and this is where it became sort of important with respect to court review of the law, or where with the regular forces, the president is unable to achieve the enforcement of federal law.
And so at that time, this was supposed to be a deployment that was going to be protecting ICE. And the argument was: ICE is unable to do its job because of protesters that are throwing rocks, et cetera, at ICE officers and protesting and blocking their way, and so the president ordered the National Guard to be federalized to protect federal functions.
What is happening now in D.C. is not the federalizing of the National Guard. It is just because in D.C., there’s no governor to be the commander-in-chief of the National Guard. So the president is the commander-in-chief of the National Guard. So when he calls the National Guard forward to engage in domestic law enforcement or assist domestic law enforcement, that does not violate the Posse Comitatus Act, the Posse Comitatus Act, which normally says active duty military, U.S. Armed Forces cannot engage in domestic law enforcement, absent some authority under the Constitution or under statute. And as we’ve talked before, the Insurrection Act would be an exception in other states. In D.C., you don’t even need an exception because if they’re being called forth to do what the National Guard in states could do if their governor asked them to do that. Then that’s considered, which they can when states use their National Guard. Yes, they can engage in domestic law enforcement. And when they’re under Title 32 status, even when the president has asked for their help, as long as they’re reporting up to their governors, they can engage in domestic law enforcement.
So, D.C., that’s not going to be an issue engaging in domestic law enforcement. But in L.A., and then this is how I’m going to come to answer your question, it’s an issue because the statute the president used to federalize is not, or is at least arguably not an exception to Posse Comitatus Act, and that is what is in front of Judge Breyer for trial this week.
He issued an opinion that had a couple of things originally. He thought that the president had not established the predicates for invoking that statute, that federal statute. And he halted the deployment of the National Guard. The Ninth Circuit stayed that, finding that, in fact, the government was likely to cede on the merits of its argument that it needed the National Guard to help enforce the law because the enforcement of law was being thwarted by the protesters.
So, what is now in front of Judge Breyer for this trial is, okay, even if that part is all right, they still can’t engage in domestic law enforcement because that would violate the Posse Comitatus Act. And the government agrees with that, but says that’s not what we’re doing. So this entire trial taking place right now is are they engaged in domestic law enforcement or are they just protecting federal functions and federal property?
Andrew Weissmann: Right. So there’s a legal issue about sort of what exactly does it mean to be engaged in domestic law enforcement as opposed to just, for instance, protecting local officers to do their job, which everyone agrees would be okay. So there’s a legal issue, but then it’s very much a factual issue about whether they were there doing sort of their own investigative work, doing their own arrests, or is the National Guard there just to protect other federal officers doing their job? So it was ICE doing something, but these people are there to make sure nothing happens to them.
And there was some testimony to that effect, and it was challenged by the plaintiffs. And so this is now we’re on day two.
Mary McCord: That’s right.
Andrew Weissmann: This is to be continued. Keep that on your radar screen. There are big differences between the two. One thing, as you were talking, Mary, I just think it’s really worth noting, going back to our theme about facts matter is because of this, the president has so much authority, even if just temporarily in D.C., the factual predicate is that much more important to be accurate, because that is the trigger for being able to take that kind of decisive action. And that’s where the fact that many people think he is just lying to us about it, what he has said in the clip we played is just not the facts. And that is going to be supported by politicians and by the courts, that to me is sort of the end.
The courts are a place where facts are supposed to matter. That is probably a really good segue. Should we talk for a moment about Ghislaine Maxwell? Because that’s one where Paul Engelmayer has the case where there was a motion made by the government to release the grand jury transcripts and exhibits with some redactions for victims’ names in the Ghislaine Maxwell case. Judge Engelmayer was assigned to this after the district judge who had the Ghislaine Maxwell trial was elevated to the Court of Appeals. So he was selected randomly and is now the assigned judge on this matter.
As we’ve talked about, and as he recognized, the law is very, very favorable against the government, but it’s very favorable to keeping grand jury information secret. The second circuit has a more lenient standard than almost every other circuit, but even there, there have to be exceptional circumstances. You know, Judge Engelmayer lays out all of that, but I thought there were sort of two things that were key in his decision where he said, I am not doing this. You haven’t made the requisite showing. And one, he goes, I won’t say out of his way, but he pointedly notes that Ghislaine Maxwell has lied to victims in order to get the victims to participate in being sexually abused and to sexually gratify Jeffrey Epstein and with Ghislaine Maxwell’s not only help in getting them to that position, but she actually engaged in the same conduct or similar conduct to Jeffrey Epstein, but lied to them in order to get them to do that and pretended and purported to be their friend and on their side.
He says that she lied to the court. She lied in a civil deposition. She lied to pretrial services. The message of that is, and now you’re meeting with her and going to pass off something she said as the truth, and you were not even on the case.
I mean, he really makes sure that the record is clear about the challenges to her veracity.
Mary McCord: And this is so interesting, Andrew, because that’s not really what the motion was about. It’s not really what his ruling is about, right? The motion was the government saying there is such a strong public interest in the Jeffrey Epstein case, we want the court to release the Grand Jury transcripts so that all the public can see the truth, and even though this doesn’t fit within one of the exceptions, in the Second Circuit, as you indicated, under these types of really special circumstances of historic significance, we think these should be released. That’s what the judge is ruling on. And we’re going to get to that because that is so incredible what he says. But in the course of getting there, he gives this history and this backdrop that you’ve been digging into. And one can only think is he just trying to make sure that that part gets out there too, right? That it gets out there, what her role was at this time, where we’ve got the Department of Justice engaging in these interviews.
Andrew Weissmann: Can I say he also points out the irregularity of this motion? He wants to make it clear that you’ve got this motion that was initially made just by the deputy attorney general, with nobody–
Mary McCord: That’s right.
Andrew Weissmann: Which we mentioned on our podcast, nobody from the local U.S. Attorney’s Office had signed the motion that nobody from the local U.S. Attorney’s Office or the career people apparently was at the interview of Ghislaine Maxwell and, he says, the sort of hurried nature of the motion that made it look like it wasn’t really something that they had reflected on. And so he’s sort of talking about, again, going to our presumption of irregularity going on. But then to the core of it is this issue of what’s the argument for making this public? And he says, well, there’s none.
Mary McCord: Hang on, hang on, hang on. Let’s use his words because he does not mince words. Before we even get to the best part on page 20.
Andrew Weissmann: Yes.
Mary McCord: The government’s invocation of special circumstances fails at the threshold. Its entire premise that the Maxwell grand Jury materials would bring to light meaningful new information about Epstein’s and Maxwell’s crimes or the government’s investigation into them is demonstrably false. He then says the government–
Andrew Weissmann: What were those words?
Mary McCord: Demonstrably false. That is a quote. Demonstrably false. The government’s invocation is false. That is what he says.
Andrew Weissmann: I think we have a title for our episode.
Mary McCord: Yes. Yes. That’s perfect. He then says they belied the government’s claim. The actual submissions belied the government’s claim that the grand jury materials contain significant undisclosed information. He’s like, they don’t. They don’t have anything new.
Andrew Weissmann: And so he says something that we all know, which is that the grand jury in this case, it was not an investigative grand jury, that it met essentially for a day. There was a summary witness who came in and presented evidence that was solely about the proposed defendant and the charges. So he basically says it’s completely anodyne. And the government even conceded that the information there was sort of a replica of and a subset of what was already publicly revealed at trial.
By the way, but you know what’s not that? Which is they’re sitting on 300 gigabytes by their own words, 300 gigabytes of information that they’re not turning over. That’s where he said, you know what the best argument is, and the one that gave me pause for why I might actually want to turn this over? I might want to turn it over to show that you’re lying.
Mary McCord: That’s exactly right.
Andrew Weissmann: So, on page 20, this is, and that was my paraphrase.
Mary McCord: You got to read it.
Andrew Weissmann: If you think that was inaccurate, here is the quote, page 20. The one colorable argument under that doctrine, that is the exceptional circumstances doctrine. The one colorable argument under that doctrine for unsealing in this case, in fact, is that doing so would expose as disingenuous, the government’s public explanations for moving to unseal. And he cites the Mario Biaggi case, where Mario Biaggi was saying, I answered every question when I was in the grand jury And the court unseals the grand jury transcripts–
Mary McCord: To be like, no, no, no, no.
Andrew Weissmann: To show that 17 times he didn’t answer the question. And so he said, that’s like the one reason I might have turned this over. So he’s basically calling out, don’t make me the fall guy here.
Mary McCord: That’s right.
Andrew Weissmann: Like, you knew that this was the Hail Mary that you were never going to win. And don’t pretend that there’s anything new here. And the only other point that we can make is that they’re sitting on the documents and have every ability to turn it over. We’re not saying they should or should not. It’s just like they can’t sit there and say, oh, God, I wish the judge had done this because then and only then could we have turned over this really explosive information that is, and I’m going to go with another, a very popular term of our current president, that is BS.
Mary McCord: Yes, that is BS.
And you know what? One part of his quote also reminds me of what we talked about last week: distractions and side shows. He says a member of the public appreciating that the Maxwell grand jury materials do not contribute anything to public knowledge might conclude that the government’s motion for their unsealing was aimed not at transparency, but at diversion, aimed not at full disclosure, but at the illusion of such.
You know, I think we’ve said this before because judges are kind of like up to their eyeballs in these types of falsehoods. But we’ve said before, if I were a prosecutor and got an opinion like that about something I said, I would resign and walk out that door that day and go hang my head.
Andrew Weissmann: Mary, career, career killer.
Mary McCord: Yeah. Yeah.
Andrew Weissmann: And this is being said, just to be clear, about the Deputy Attorney General of the United States.
Mary McCord: Because I was just going to say, I don’t think a career prosecutor would probably do that.
Andrew Weissmann: Well, exactly.
Okay, we’re going to take another break because we have more to cover, but let’s take a break and we’ll come back and go to the circuit.
Mary McCord: Sounds good.
(BREAK)
Andrew Weissmann: Mary, we’re now going to go back to the D.C. Circuit and this is going to seem like a blast from the past, and people are going to be like, what are you talking about? But Judge Boasberg, who had sort of the original case dealing with the planes that were taking off and going to El Salvador, he had, in the course of lots of different iterations of that, he had issued a decision saying that he sort of preliminarily had found probable cause for contempt and that gave various parameters that we’ll talk about it. And he wanted to know certain information. He didn’t say they were in contempt. He didn’t say we’re doing a criminal case to hold people responsible. He wanted information about who had given certain orders and directives that he said there was probable cause to believe that was in violation of his order to essentially not remove these people from American jurisdiction. And that could include not deplaning them if they had landed in El Salvador or turning the planes around, but essentially not losing jurisdiction while he was deciding substantial legal issues about due process and the Alien Enemies Act.
But that decision that he had made was on hold by the D.C. Circuit, a panel of three judges, and that was on hold for quite some time. In fact, I think, Mary, you and I might have chatted offline, just in case people don’t know. We actually do talk just a little bit outside of the podcast.
Mary McCord: We mostly text. That’s what we mostly do, but we call that talking these days.
Andrew Weissmann: Yes, we’re like the young kids.
Mary McCord: Right.
Andrew Weissmann: So that had been on hold for quite some time. Well, a decision came out, and it’s two to one. Two very different decisions in the majority. Judge Katsas and Judge Rao have very different opinions describing why they’re doing what they’re doing. And then Judge Pillard dissents. So it’s two to one. But that actually resolves the issue, but it basically reverses Judge Boasberg.
And so, what exactly happened there?
Mary McCord: First of all, all three judges agreed that this was not an appealable order. Judge Boasberg saying, I am finding probable cause that an administration official was in contempt of my order, they said, that’s an unappealable order. So instead, they looked at this as mandamus, a petition for a writ of mandamus, which basically means a trial judge did something that was so clearly and undisputably wrong that they need to be kind of reversed right at the outset, even if it’s not an appealable order.
And I just want to be clear.
Andrew Weissmann: By the way, mandamus is really hard.
Mary McCord: Very hard.
Andrew Weissmann: It’s a much harder standard. By the way, Mary, I once did a writ of mandamus for the government. I was shocked we won.
Mary McCord: You prevailed? Yeah. I defended against them.
Andrew Weissmann: Just to be clear. It’s very, very tough because the normal rule is you wait until the case is over and then you appeal and you address the issues there. Mandamus is saying stop all of that normal process and just hear it right now because what’s going on is so out of bounds, you need to nip it in the bud.
Mary McCord: That’s right.
And so, again, what we’re talking about is people remember because we’ve talked about it many times this weekend, March 14th, 15th. Judge Boasberg, like 1 a.m. learns that there’s been a motion filed for immediate relief because people are being loaded onto planes to be taken overseas to El Salvador. That comes from plaintiff, the ACLU, who had attorneys who were talking to some of the people in detention who were saying, I think we’re getting ready to go on a plane.
Anyway, so he has these emergency hearings on a weekend, and in the morning at 9:40 or so, enjoins the government from removing any of the named plaintiffs and says, I’m going to come back at 5 o’clock to talk about a class, during this 5 o’clock hearing, he learns that there are other planes that may have taken off, and he asks for clarification for the government. The government takes a bunch of time and has a hard time clarifying whether they’ve taken off or not, or what time they took off. That’s when he says, I want to make it clear. If they haven’t taken off, they shouldn’t take off. If they have, they need to be turned around and come back. Or at any rate, you cannot deplane the people from them because he does not want, and this is key, at least to Judge Katsas’ opinion, he does not want the U.S. to lose jurisdiction over those people and not be able to bring them up.
In other words, he doesn’t want the U.S. to give them to some foreign government where the U.S. will then say, out of our hands, it’s in a foreign government’s hands. That’s what he did that day. What Judge Katsas ends up saying. So all three judges say, no appellate jurisdiction will look at this from mandamus. Two out of the three, say mandamus is granted. Katsas would say, not only do we grant mandamus, but this whole thing is over. You cannot proceed with contempt, Judge Boasberg. Judge Rao says, mandamus here, but I’m not going to say the whole thing is over, and I’ll get into that. And Judge Pillard dissents from everything, saying there should have been no mandamus here. And what I find remarkable, and why it fits in our theme of alternate facts, about Judge Katsas’ opinion, is essentially, he says there are two ways of interpreting Judge Boasberg’s order. One is that you simply could not remove people from the United States. One is that you could not turn over custody of those people to a foreign government.
And he then goes through parsing Judge Boasberg’s words, trying to find an inconsistency between his oral ruling and his written ruling, which incorporated his oral ruling specifically by its terms, goes to dictionaries to define what removal means and ignores all the context, ignores the fact that the emergency nature of these hearings what Judge Boasberg was saying, I want confirmation from you, government. Like, can you come back and tell me what’s happening with these planes? He ignores all of that and says it’s ambiguous whether Judge Boasberg just meant you can’t remove them from U.S. territorial jurisdiction or you can’t turn over custody. And if he only meant you can’t remove them, then because those planes were out of U.S. airspace at the time he said turn them around, they were already outside of territorial jurisdiction, and the government may have an argument that they did not actually violate Judge Boasberg’s order.
Andrew Weissmann: Because they were removed.
Mary McCord: They had already been removed before the order.
Andrew Weissmann: Just to be clear, the reason he says I’m killing all of this is he says that this ambiguity is so clear. It’s like it’s clear ambiguity that you cannot have a criminal contempt finding because this is so fundamentally problematic that nobody could be found to have intentionally violated this order because I am determining that the order issued by Judge Boasberg was so insufficiently clear that nobody could be found to be in contempt. And so that needs to end.
And so he is making, by the way, factual findings essentially on appeal because those factual findings were not made below, which is already bizarre because that is not what the Court of Appeals should have done. Second. The normal rule, and this is an argument that the dissent makes, is the normal rule is if you want to argue about the ambiguity of the court’s order, that’s a perfectly good thing to raise if there is a criminal contempt trial.
Mary McCord: That’s right.
Andrew Weissmann: And then you say, well, judge, I wasn’t intentionally doing this. I don’t think I was in violation. But even if it was in violation, it wasn’t an intentional one because I didn’t understand the scope of it. That’s a perfectly good argument, it’s not like you can make that, but that’s an argument for the fact finder, for the jury–
Mary McCord: That’s right.
Andrew Weissmann: Or the judge who’s deciding it to decide whether there’s merit to that.
Here, and I’m pretty sure I was what you were going to say is. One of the things he ignored is Mr. Reuveni–
Mary McCord: That’s exactly where I was going.
Andrew Weissmann: Absolutely. And Judge Pillard says, are you joking? You are creating this hypothetical ambiguity where we know–
Mary McCord: Alternate facts, creating alternate facts.
Andrew Weissmann: Where Mr. Reuveni has said that he understood on behalf of the government and provided emails and texts. That they understood precisely what was needed, that they understood that the planes had to either be turned around and landed, the people on it were not deplaned. That they precisely understood contemporaneously that that was what was required. And all of that is ignored. And it’s so hard, so hard. And I hate looking at it this way, but it’s so hard not to see this case as who appointed the judges because, as has been reported, the two judges, Judge Katsas and Judge Rao, are Trump appointees. And so it’s hard not to look at it that way.
Now, again, I’m not saying it was done in bad faith on the part of any of the judges. But it’s such an unusual step procedurally to have granted a mandamus, to make factual findings, to decide that it’s so ambiguous that it can’t even proceed. Are things that in a normal course, Mary, you and I would be like, that’s never going to happen in a case that has no sort of political overtones. And I should just cite one thing Judge Pillard said, the only ambiguity here, she said, is the ambiguity of what the government was up to, because the government would not give a straight answer.
Mary McCord: Wouldn’t reveal it. That’s right And Mr. Reuveni, just to be clear, was the attorney in court that day, the one who has now filed the whistleblower complaint, right? He was fired. And he’s the one, like you just said, and like we read some of those emails a few weeks ago. The emails are clear. They knew exactly what the court meant.
I think part of what Judge Katsas was trying to do is avoid what he perceived as harder questions, moving forward with contempt against administration officials raising various separation of powers issues, et cetera, et cetera, that he said essentially would, you know, I think that colored his judgment as well. And he says, because he goes through these things, like to hold otherwise and let this proceed is such a significant thing when we’re talking about the U.S. government, et cetera. I would say it’s yes, it’s significant. It’s significant to hold them accountable. That’s why it’s significant.
Andrew Weissmann: Exactly.
Mary McCord: Obviously we differ on the significance here.
Andrew Weissmann: Exactly. You and I had to say, which is like exactly, which is that you’re creating a green light.
Mary McCord: That’s why you need to move forward.
Andrew Weissmann: Exactly. And also, it’s again just to be clear that Judge Boasberg was not saying there’s going to be a criminal case.
Mary McCord: No.
Andrew Weissmann: There has not been a referral.
Mary McCord: He wanted more information.
Andrew Weissmann: Yes. Exactly.
Mary McCord: So, Judge Rao, just to complete the picture, just to complete the picture, her ruling was a little different. She did not co-sign on to that whole analysis about the ambiguity. She instead said that because Judge Boasberg sort of said to the government, look, you can–
Andrew Weissmann: Purge.
Mary McCord: Bring them back, purge the contempt by bringing them back, or I will proceed to make further inquiries in furtherance of contempt proceedings. She said that was basically coercing the government into doing things that involved foreign diplomacy and national security over which the court doesn’t have any jurisdiction. And that’s what made his ruling mandamus-able, I’m going to create a word there, subject to reversal under mandamus.
She, however, would not completely say and did not. So the upshot here is contempt proceedings are not completely off the table because she did not shut that down completely. She just said that probable cause finding and that state of affairs is getting reversed because you can’t have this coercion. Judge Pillard says, you know, there’s always an effort, a contemnor, someone who’s being challenged as potentially being in contempt always has an ability to rid themselves of the contempt before they get held in contempt. This is normal. And if you think this is coercion, just take that part of it out of it.
Andrew Weissmann: Exactly. So this means that certainly Judge Boasberg in a contempt proceeding is sort of on life support. But what to keep your eye out for is whether this goes en banc, which means whether the D.C. circuit hears it with all of the active judges hearing it.
Mary McCord: Which would require, of course, the original plaintiffs to seek that, those who just lost, unless they did it on their own.
Andrew Weissmann: Exactly. So this may go to an en banc hearing. Keep your eye out for that. And why don’t we turn now, though, to some good news, which is Judge Henderson. Now, this is in a very separate case, and it may seem very arcane. And it certainly didn’t get a lot of press in terms of the substance. But basically, this is a case that dealt with the government saying we are taking down a website that records how we are spending federal money.
Mary McCord: And that was mandated by Congress.
Andrew Weissmann: Exactly. Congress has the purse strings. And Congress said not only do we have the purse strings, but we are requiring, not only permitting, but we are requiring that you have public accountability about how this money is being spent so the public can see it. And the government takes down the website anyway, and this is challenged as violating the statute and the government has to make the argument that the president has this sort of unitary executive/unitary government theory. As Judge Henderson said, this is a classic example of the fight between the legislative branch and the executive branch. She traces it back to Stuart England.
Mary McCord: 1600s.
Andrew Weissmann: Yes, so 17th century, early 17th century, ending in a glorious revolution vindicating the power of the legislature. And so this is yet another example, and it reminds me so much of our Youngstown discussion, of the court vindicating the congressional branch’s power. You don’t see Congress vindicating its own power.
Mary McCord: That’s right.
Andrew Weissmann: Because they’re happy to sort of sit back and see if the courts will do it for them so they don’t have to take on Donald Trump. And so she is saying, no, this is a legislative function. They have the power of the purse. You, as the executive don’t get to do this, and the issue is what should happen now? Like, should there be a stay? What should happen while the merits of this are being considered, should the website be ordered back up? Or should we sort of let this stay the way the government wants it to stay, which is the website is down while this gets litigated? And that’s where I thought that her wording is so lovely. And maybe just some quick backdrop about who she is. She is a conservative jurist. She is not somebody who you can sort of count on to sort of come out in some way that’s going to always side with the liberal judges. And she can be quite difficult at times on a variety of different cases, where I’ve actually been a little surprised.
Mary McCord: She’s also so interesting because for decades, she’s been on the bench a long time, and I argued many cases in front of her. For years, she never would ask a question, an oral argument. The other two judges would ask questions and not Judge Henderson. And in the last sort of since she became a senior judge, or actually, before that, when she was more senior of active judges and started presiding, she started asking a lot of questions. So she just really evolved over her, kind of like Justice Thomas, right? Like, never used to ask a question, and now he leads off the questions at every argument. Anyway, just a little interesting factoid.
Andrew Weissmann: And she’s really interesting because I guess what I’m trying to say is that sometimes you’re really surprised how she comes out, and for her to come out so strongly against the executive here is it’s a little bit like what we saw in the Fourth Circuit with conservative jurist–
Mary McCord: Judge Wilkinson.
Andrew Weissmann: Wilkinson, really saying–
Mary McCord: Can I read it?
Andrew Weissmann: This is beyond the pale. Okay, I have an idea.
Mary McCord: Oh, do you want to read it? Somebody has to–
Andrew Weissmann: Yeah. So, to grant the executive a stay-pending appeal in this separation of powers standoff would effectively cut the Congress’s purse strings. No court would allow a losing party to defy its judgment. No president would allow a usurper to command our armed forces. And no congress should be made to wait while the executive intrudes on its plenary power over appropriations and disclosure thereof.
Do you want to do the next part?
Mary McCord: The public interest is best served by maintaining the separation of powers balance struck by the Constitution. And especially so if the challenge statutes keep the citizenry abreast regarding duly appropriated expenditures. The end.
Andrew Weissmann: That is a perfect the end, right?
Mary McCord: It is. And note that signal. No court would allow a losing party to defy its judgment. It’s almost like she’s putting a marker out there, right?
Andrew Weissmann: Absolutely.
Mary McCord: She starts with the judicial power. No court would allow it. Then she goes to executive power. No president would allow a usurper to command our armed forces ends with the congressional power, but starts with the judicial. And I think, I don’t know, she might be a little irked.
Andrew Weissmann: And so the ending is this idea that it’s particularly appropriate. What we’re talking about information that would keep the citizenry abreast regarding duly appropriated expenditures. That is the theme that we have been talking about, this idea of hiding information, of not just lying, but then making it harder to find the truth. We talked about the Bureau of Labor Statistics when we started off as an example. But this case is an example of the court being very aware of this problem of overweening executive power, and it’s not just disinformation which is a fancy term for lying and misleading, but also then hiding the actual facts so that you can’t even know that this is what’s going on. And that’s why her decision here is so important, is she is saying, look, Congress actually made this available to the public–
Mary McCord: That’s right.
Andrew Weissmann: And you have no ability to take it down. Let alone, by the way, just ask yourselves, why would you want to take it down? Even as a policy matter, what would be the legitimate reason?
Mary McCord: Well, to maybe hide something about how money was being spent.
Andrew Weissmann: On that note. It is so nice, Mary, to do this with you. I think this worked, is to try and figure out a frame that sort of hangs this all together. And hopefully, people appreciated sort of ways to think about the huge variety of things that are going on across the country. So, thank you so much.
I wanted to remind people before we wrap that you can get your tickets to MSNBC Live 25, which is a live community event on Saturday, October 11. It is at the Hammerstein Ballroom in New York. Tickets are on sale at msnbc.com/Live25, and we’ll have a link in our show notes if you want to get tickets.
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, like the recent conversation Nicole Wallace had with best-selling novelist Daniel Silva.
Andrew Weissmann: This podcast is produced by Vicki Vergolina and Max Jacobs. Our intern is Colette Holcomb. 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.