The United States entered the conflict between Israel and Iran this weekend after bombing three Iranian nuclear sites. Andrew and Mary start this week’s episode here, discussing the scope of presidential war powers and the norms of international law following the strikes. After, they shift focus to immigration, zeroing in on a whistleblower complaint from a former DOJ lawyer against Principal Deputy Attorney General Emil Bove among others, as well as the releases of Mahmoud Khalil and Kilmar Abrego Garcia. And after a nod to the Supreme Court’s decision on removing immigrants to countries other than their own, Mary and Andrew touch on the 9th Circuit decision allowing Trump to retain control of the California National Guard, and what happens next.
Further reading: Here is the compliant from the Justice Department whistleblower (courtesy New York Times): Protected Whistleblower Disclosure of Erez Reuveni Regarding Violation of Laws, Rules & Regulations, Abuse of Authority, and Substantial and Specific Danger to Health and Safety at the Department of Justice
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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, June 24th. I’m Andrew Weissmann, and I’m here with Mary McCord. Hello, Mary.
Mary McCord: Hello, Andrew. I’m scattered because I have so much in my head, and I just came straight from court, so I have court in my head, and now it’s time to do a podcast.
Andrew Weissmann: I know. You were coming straight from court. We’ve been boning up on war powers and international law because of the events of last week, and obviously we’re going to talk about that. But in addition, we are also going to cover briefly some new allegations that have just come out from a whistleblower, that deal with Emil Bove and others.
But one of the reasons we both sound sort of like, okay, let’s get to it, is because there is so much to cover, and we are on top of it. So, Mary, with that, how are we going to divide up our podcast today?
Mary McCord: Right. We will start with the Iran strike, what that means under domestic law, briefly under international law. But we are going to do a special premium episode devoted entirely to that with our friend Tess Bridgeman, who is a former legal advisor to the National Security Council, knows this stuff better than Andrew and I, by far – Andrew Weissmann: By far. Mary McCord: — and she will join us for a premium episode that will air next week.
So, we will just hit the wave tops. We will then dive into just absolute plethora of immigration case-related news that has come out in the last 24 to 48 hours, including the whistleblower complaint that you just referenced, Andrew, which all happened while I was in court, so I’m going to be deferring to you on that.
And then we will also come back to what now seems like ancient history, but what we spent a good part of last week on, which is the federalization of the National Guard and calling forth the Marines in Los Angeles, and the Ninth Circuit staying Judge Breyer’s decision, which had said that this was not a proper federalization of the National Guard because there was no rebellion, nor was the National Guard needed to execute the laws because they could not be otherwise executed.
So, the Ninth Circuit stayed that. New briefing has now been filed yesterday afternoon in front of Judge Breyer saying you can go forward with the PI even though part of this has stayed. In other words, you can go forward on the part that says, what are they doing there, and are they violating the Posse Comitatus Act. So, a lot of stuff to get to.
And we’ve both read everything, except I haven’t read the whistleblower letter yet, but now, like, the challenge will be keeping it all straight.
Andrew Weissmann: Yes, absolutely. Can I just say one big picture thing, which is I really understand people who are sort of tuning out or just thinking there’s a deluge because there’s so much, and you can kind of hear it in our voices today because there’s so much that we want to cover, and it’s so big. And as you said, Mary, even going back to what happened in LA feels like, wait, I’m like thinking, wasn’t that in 2022? But that was like not even a week ago–
Mary McCord: Last week.
Andrew Weissmann: When it was big news. And I think it’s just so important for people to stay engaged. That’s not a pitch just for us. I mean, I think we do a great job, but there’s lots of people out there do wonderful jobs in translating this stuff and talking about it, have great insights. But it’s just so important to understand what is happening here, in spite of the fact that there might be a natural reluctance and sort of wanting to stick your head in the sand because it can just seem overwhelming. And some people think, maybe rightly, that that’s the point of this. It’s this blitzkrieg. But that’s sort of my big overarching thing.
Mary, I have a way of thinking about the sort of legal issues, not the policy issues, not the humanitarian issues, the legal issues about the Iran strike. And one is to think about it in terms of domestic law. What is the law in this country that either permits it or doesn’t permit it, or say ambiguous, or what’s the framework here? We’re going to give just a quick overview of that.
And then the second is, what are the requirements of international law? And some people might be thinking international law, what’s that? Well, there are two components when you do this, which is, have you complied with your own internal rules? And then the second is applied with international law. And there’s some reason to think that the administration is at least focusing on those issues. I’m not saying they’re complying, but it’s clear that there are lawyers thinking about those issues because of certain wording that’s been used.
Mary McCord: Yeah. And that makes me think some people might be thinking, your podcast is called Main Justice, why are you talking about this strike in Iran? This was on three different nuclear sites where nuclear weapons and the precursors, the enrichment of uranium, the sites where these kinds of things take place, and where if there is going to be the development of a nuclear weapon, it would be at one or more of these sites.
And the reason is for what you said. And I can tell you during my three years at the National Security Division at the Department of Justice, when I would go on a two, three, four times a week basis to meetings at the White House in the Situation Room, every action that the U.S. government was contemplating taken abroad, whether that was some sort of strike, whether that was some sort of drone operation, terrorism operation, right, whether it was going to be trying to do a hostage rescue, you know, whatever, what we would all do, I was there from the Department of Justice, but they didn’t look to me to say, hey, Mary, Acting Assistant Attorney General, what’s your view of the legality?
They would look to the legal advisor to the National Security Council. And that’s why our premium episode will involve someone who was in that office. And they would look to that person to say, what is the domestic law basis for this? What is the international law basis for this? And that is what all of the participants in the meetings from all of the National Security departments and agencies, including the Department of Justice, would then discuss, right? Like you said, it was important.
Now, this operation, based on what has been reported about the need for secrecy, it has been reported at least that the attorney general was not part of the discussions prior to this operation taking place, or at least not until right at the very last minute. So it could be that things were done a little bit differently, than sometimes because of the need for such incredible operational security and to have as few people as possible know about the operation. I would still say it’s unusual not to have the attorney general part of the decision. I don’t even know if that reporting is true or not.
But it does appear, and the reason I think it appears that they’re at least making some effort to check in on domestic law and on international law authority is because we now have seen the president within 45 hours as required by the War Powers Resolution, him give notice publicly to Congress. And that gets us right to some of what domestic law is about.
Andrew Weissmann: Yeah. So the domestic issues, before we give a brief overview of international law, but the domestic law issues are, you know, you can look first to The Constitution, and then the second is you can look to whether there’s some sort of statute that gives the president authority.
And with a lot of the terrorism stuff that you dealt with, I dealt with at the FBI, I would look at FBI authorities, you would look at broader authorities, not just at the FBI, but we’d look at statutory authorities. And a lot of times there was something called the AUMF. There was sort of a congressional authority with respect to terrorism cases that could be relied on. There are lots of issues there.
Mary McCord: Footnote, AUMF, Authorization for the Use of Military Force. AUMF.
Andrew Weissmann: Yeah, exactly. And by the way, it covers exactly what it sounds like. And there’s obviously a lot of issues about what it governs and whether it controls certain things. And there’s lots of debates about whether different presidents have adhered to that statute. I’m not trying to get into that.
But the one thing that seems pretty clear is that doesn’t seem to apply, at least I haven’t read anything with someone saying there’s a statute that governs and authorizes Congress saying that the president can do this with respect to Iran. So you’re really in The Constitutional realm about war powers.
And maybe the first place to start is, guess who has in The Constitution clearly set out the power to declare a war.
Mary McCord: That would be in Article 1, and that would be Congress.
Andrew Weissmann: It is absolutely crystal clear. And one of the things you and I both teach national security law, is in spite of the fact that that is what The Constitution said, that yes, the president is the commander-in-chief. But that’s the commander-in-chief once the Congress has declared that there is a war and authorizes it and funds it. Then you have somebody who leads it. So that’s the division of power. That is what’s on paper.
Mary McCord: That’s right. And so, then the question becomes, right, what is war.
Andrew Weissmann: Absolutely. So that’s one of the ways that this has been sort of what I’ll say is nickel and dime, which is that lots of presidents, and just to be clear, not only Republicans, not only Democrats, lots of presidents have said, well, wait, the action I took is not actually war. It’s not a declared war, so I’m not violating the Constitution.
You have to look at all sorts of things about what is the intent, what’s the scope, what’s actually being done, what are the likely consequences and likely to be reprisals. And that’s why you see now people on behalf of the administration talking about this as it wasn’t a declared war. That’s one of the reasons when the president said something about regime change on social media, but everybody else in his administration had said this is not about regime change.
One of the reasons that’s so relevant to us as lawyers in this field is, wait a second, that’s not a helpful fact when you’re thinking about is this a war or not, that Congress should have declared, because the president’s saying, oh, you know what, why shouldn’t there be regime change? That starts looking like a war.
Mary McCord: That sounds like war.
Andrew Weissmann: Exactly.
Mary McCord: And let’s get brass tacks on that. So the Office of Legal Counsel, which we’ve talked about many times before, which is an office that gives advice to the president, legal advice, in addition to the legal advisor to the National Security Council, their position on the president’s Article 2 authority is that the president may use force just straight up under his Article 2 constitutional authority when there is an important national interest and the use of force does not constitute war, right. So it all comes down to what is war.
The Office of Legal Counsel says that war is characterized by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period, right? And so you’ll recall that right when this strike happened, the speaking about it in the initial moments was this was a one-time strike to bring an end to the conflict between Israel and Iran. This was all that it was to be.
However, that night, the president did say in his televised address, if Iran retaliates —
(PLAYBACK)
Donald Trump: This cannot continue. There will be either peace or there will be tragedy for Iran far greater than we have witnessed over the last eight days. Remember, there are many targets left. Tonight was the most difficult of them all by far and perhaps the most lethal. But if peace does not come quickly, we will go after those other targets with precision, speed, and skill.
Mary McCord: So I already at the time was scratching my head a little bit about, well, is this a one-time or is this not a one-time? But that’s the position, the official position that the executive branch has historically taken and seems to be taken here.
But that’s not the end of the story, right?
Andrew Weissmann: Yeah, absolutely. I mean, I don’t know if you want to turn for a moment to international law, just briefly. Under international law, because you can go back a long way as to the League of Nations, but obviously the United Nations, where there’s an effort for us not to have the law of the jungle, not just within nation states, but as a world. But under international law, the key words that you look for is whether the action that the nation state has taken is necessary and proportional. Is it necessary and proportional?
Mary McCord: And that is only, right, if it is in self-defense or collective self-defense, you have to have that predicate, right?
Andrew Weissmann: Exactly. And that’s why you hear the Secretary of Defense Hegseth, the United Nations American Ambassador, talking about collective self-defense. The idea is that there was an ongoing war between Israel and Iran, and that we are taking this action in terms of collective self-defense, CSD. And, you know, in Washington, everything’s acronyms.
But there, the key issue, but just to boil it down, is imminence, is when you’re talking about whether something is proportional, it’s one thing to say, wait a second, they’ve developed a bomb, and they’re going to use it, and we need to do something. Versus, we think they may be at the point where they’re developing a bomb, but no one said they’re going to use it. I mean, that’s certainly not imminent, but there is the issue of like how much notice you might get between the time of building and the time of use. There is the question of how reliable the person is. But the imminence is a huge problem here, given what we know about the intelligence.
And maybe that’s, as we do this, we’re sort of looking through a glass darkly, that we don’t have all the facts. It may be that between American intelligence, Israeli intelligence, other people with good intelligence, that there is a case to be made here that would justify it under both domestic and under international law.
But it is right for the American public, and for the member countries in the United Nations that debated this, for them to be concerned about what is the intelligence, because people listening to this will remember that we actually went to war on faulty intelligence.
Mary McCord: In Iraq.
Andrew Weissmann: Right. And actually this president, President Trump has been very critical of that, saying that he is distrustful of the intelligence communities because of that, but now apparently he’s not.
Mary McCord: And notably here, actually, the intelligence was sort of the opposite of there. Like what we know from the Office of the Director of National Intelligence, Tulsi Gabbard, her most recent briefing was that there was no imminence, right, that the intelligence did not reveal that Iran had a nuclear weapon or was intending to even make one or use it. So these are things that are, you know, Congress, well, in a normal world, Congress would be immediately having some oversight.
Andrew Weissmann: Can I just like pause for a second on what you just said, because it’s so easy to normalize this. The president’s reaction to that was, I don’t care what she said, she’s wrong. But this is what I don’t get, you chose that person. This person is the DNI. The head of the DNI is the head of the intelligence community. If you do not trust that person, why are they there? Why did you choose that person? It is just remarkable. This is such an important position. This is about life and death issues. This is about whether we’re invading the sovereignty of a foreign nation.
We are, I’d say all sentient, rational human beings who believe in the rule of law. All think what Russia has done and is currently doing in Ukraine is a war, that is an invasion of their sovereignty as a nation, not justified under international law at all. And that’s because we can look at what is happening. We know the intelligence of it. And we know that what President Putin has said about it is false.
But that is where at some point the intelligence needs to be made public. There has to be an accounting. And again, I understand that doesn’t mean all aspects of it. And you and I both know that there can be a lot of sensitivities about intelligence and protecting methods and means.
But so far, there has not been a good accounting. And you do have this big dichotomy between the actions of the government and the statements of the head of the intelligence community, which is Tulsi Gabbard.
Mary McCord: That’s right. And just before we go to break, because I said something about the president giving notice pursuant to the War Powers Resolution last night, I want to briefly say what this is. Because, you know, Congress has not declared a war since World War II. Yet, I think most people would say, haven’t we had some wars?
What Congress has said is that in the absence of a declaration of war, in fact, this was a resolution passed in 1973, in the wake of, you know, the Vietnam War, that when the U.S. armed forces are introduced into hostilities or imminent involvement in hostilities into the territory of a foreign nation while equipped for combat or in numbers that substantially enlarge the U.S. armed forces equipped for combat that are already in a foreign nation, the president is supposed to consult with Congress before he does that, and then has to submit within 48 hours to the Speaker of the House of Representatives and the president Pro Tem of the Senate a report talking about what the circumstances were that necessitated that.
And then there are limitations. It’s supposed to only last for 60 days unless Congress declares war, extends that period, or Congress is unable to act because of some sort of armed attack where Congress is not functioning. So that’s the War Powers Resolution. That’s a complicated area because it’s a real dance between the executive and legislative branches. And in many of these wars subsequent to World War II, it has been sort of assumed that Congress, by going ahead and funding the war effort, and in some cases authorizing the use of force, is essentially acquiescing, at least in some of our prior conflicts, to what the president has done. So if this is of interest to you, please, please, please do tune into that premium episode.
But now, shall we break and come back and just talk about just the fire hose of immigration-related case news, lawsuit news?
Andrew Weissmann: Yes. And, you know, here is a place where there is shocking news, there is some good news, but one thing that’s clear is there’s news. So come on back and we’ll explain it all to you.
(BREAK)
Mary McCord: Welcome back. So, Andrew, breaking news. While I was in court this morning, there is a whistleblower from the Department of Justice who worked on the Abrego Garcia case. He worked on other immigration-related cases. And he got himself in trouble for telling the truth to the court that the removal of Abrego Garcia had been a mistake. He got fired for that. And now he is speaking up. And please tell us what he is saying.
Andrew Weissmann: Okay, so this is what we have. Just today, there is a 35-page letter that, through his counsel, he has submitted his counsel at the Government Accountability Project. It is to the Inspector General at the Department of Justice. It is to the Office of Special Counsel, which we have talked about in the past. And it is to the ranking members in the Senate and in the House on the Senate and the House Judiciary Committees. And it is 35 pages.
Mary, as you said, this is submitted not by some never-Trumper, sort of anti-MAGA person. This is Erez Reuveni, R-E-U-V-E-N-I. This name may be familiar to people for the reason that you said, which is that he is a 15-year veteran of the department. He has done immigration cases. He was promoted to his current position before he was fired by the Trump administration.
He has argued for the validity of the so-called Muslim ban. He has argued for all sorts of things. But this is a good example of what somebody who has integrity, in my view, signs up for. And he ends by saying, I didn’t sign up to lie.
Mary McCord: That’s right.
Andrew Weissmann: And he is basically recounting over and over and over again communications with senior leadership, asking him to do things that he thought were improper, to take positions of fact that were not true, to take legal positions that could not be supported in good faith. And just to be clear, this is just his view. It is just his reporting. We don’t have the other side of it.
It does appear, however, that, one, you can’t really cast aspersions on him, political aspersions. Two, there are references throughout to lots of other people being president and to some communications. So there should be documents to either disprove or corroborate what he is saying.
But I just want to give you a quick overview of what he is saying, because it is I don’t know what the right word is.
Mary McCord: It’s a gut punch to people like us who spent our careers at the Department of Justice. And I mean, just by what you’ve said already, just what it says about this leadership, if it’s truthful, is so, so troubling. So, runs against every single thing that the Department of Justice is supposed to stand for.
Andrew Weissmann: Absolutely. And I’m saying that in the most apolitical way possible. It is coming at the day before Emil Bove, who is now the Principal Deputy Attorney General, sort of the number two to the number two, very high-level position, has been nominated to be a Third Circuit judge by Donald Trump. And there are some significant allegations about him.
I’m just going to read to give you a sense of it. Let me just read sort of an opening. He says that these high-level government personnel knowingly and willfully defied court orders, directed their subordinate attorneys to make misrepresentations to courts and engaged in scheme to withhold relevant information from the court to advance the administration’s priority of deporting non-citizens.
And we’re going to talk about the Kilmar Abrego Garcia case. People who’ve listened to this know that we’ve spent a lot of time on that. We’ve talked a lot about the Judge Boasberg case. He says that what he is describing happened in those cases where there were misrepresentations to the court, that there were things that were deliberately delaying or misrepresenting facts, taking positions where they could not be justified, where they were not telling their clients that there was actually an order that they had to be complied with. I mean, it just goes on and on.
Mary McCord: So our listeners remember, so Abrego Garcia we’re about to talk about again, Judge Boasberg’s case, right? This is the one where in the middle of his hearing, he had said, you know, no planes should take off. And planes had taken off. And he said, if planes have taken off, you know, removing people alleged to be members of Tren de Aragua under the Alien Enemies Act, if they have taken off to El Salvador, they need to be turned around. So these kind of allegations in this letter go right to the heart of what the government in court on March 15th was representing to Judge Boasberg.
Andrew Weissmann: And just to be clear, the sin of all sins, which Stephen Miller has used to describe Mr. Reuveni as a quote, “saboteur”, and maybe the worst epithet of all, a Democrat. But the saboteur language is so loaded and so pernicious, is that he told the court it was a mistake to have extracted Mr. Abrego Garcia from the United States in the face of a court order.
Just to be clear, this Solicitor General of the United States said virtually the same thing and maybe slightly different words, but said the same thing in the Supreme Court of the United States. I mean, look, you have to explain it. There was a court order and he was removed. Like the most innocent explanation is it’s a mistake. The only other explanation is that it was intentional. So I mean, it’s one or the other that it is.
And he describes in here that he was ordered to say, and he was asked, why did you not describe Mr. Abrego Garcia as a terrorist? And he said, because there’s no evidence of that. And they were like, essentially, when you read these allegations, and again, they’re just allegations so far, is that it was essentially doesn’t matter.
So again, this is quite a read. We will attach the actual submission to our show notes. For anyone who cares about the rule of law, it is worth reading this. And then, obviously, because this is just one side of the story, keep your eye out for how it is responded to, or how it’s not responded to, because epithets, just remember epithets are not facts, and epithets are not arguments. And calling somebody a saboteur or a Democrat doesn’t actually mean anything in terms of its validity.
Mary McCord: Yeah. And this is actually the perfect segue to talking about what is happening in the case of Mr. Abrego Garcia.
Andrew Weissmann: Perfect. What’s happening, Mary?
Mary McCord: Listen, well, remember, he was finally brought back from the terrorist detention center in El Salvador, where the government had said they could not bring him back. But he was brought back only after the Department of Justice had indicted him on charges of human smuggling. And a federal magistrate judge just ruled it at a detention hearing that she would not detain Mr. Abrego Garcia, because there was just not sufficient evidence to show that the government was entitled to have him detained pretrial on these human smuggling charges, or that there was no condition or combination of conditions of release that could reasonably ensure that he would appear again in court. In other words, he wouldn’t flee, and that he would not be a danger to the community.
Now, mind you–
Andrew Weissmann: Mary, Mary, can I just say something?
Mary McCord: Yeah.
Andrew Weissmann: You read that two days ago, because it was issued on June 22nd. It just feels like a million years ago.
Mary McCord: Yes, it does. Oh, my gosh. Okay. Good thing I highlight things, because otherwise they’d be like, what did that say again?
And I think what’s notable here, given our segue from the whistleblower complaint, and you can’t just call Mr. Abrego Garcia a terrorist, because there’s not evidence of this, one of the issues that this magistrate judge has, and the government has already appealed this up to the district court judge, which is a lot of the evidence in the criminal charges in the indictment is not really well supported. At least the evidence that we go to a reason to detain, right?
So the government said you should detain him because his crimes involved minors. And so she says, look, first, human smuggling and human trafficking are different. And even our government and the guidance put out by our Department of Homeland Security says these are different. Human smuggling is really a crime of transportation, where the people are usually very willingly being moved into the country. Human trafficking is a crime against the person, where people are being trafficked against their will, right? Sometimes for sexual reasons, other reasons, but smuggling is a very different crime.
So she analyzes what does it mean for there to have been a minor involved, and says this evidence is, first of all, not sure what involved means when we’re talking about smuggling, but the evidence that the government has put forward that there was a minor involved is incredibly weak. There is an allegation that when Mr. Abrego Garcia was stopped by the Tennessee Highway Patrol back in 2022, driving a van with nine people in it, that somebody in the Highway Patrol who did not testify at the detention area, did not submit an affidavit, supposedly passed around a piece of paper, had everybody put their name on it and their date of birth. And one of those dates of birth was 2007, which would have made that person–
Andrew Weissmann: Allegedly 2007. Wait for it. Wait for it.
Mary McCord: Yes, wait for it. Which would have made the person 15 years old. However, that seven, and it’s in the opinion, you can see the little handwriting, it is clearly a written over, appears to be written over a one, but also what it did, it added a little, what do you call that? Just a little tail.
Andrew Weissmann: Like a little top.
Mary McCord: A little top. And then she looks the manager just looks at what some of the other people in the van had written. And when they used a one, they put that little caret top or that little tail on the top of the one and says, it’s not at all clear that this is not 2001 and not 2007. And that is not enough.
Andrew Weissmann: And if it was 2001, the person would not be a minor.
Mary McCord: That’s right.
Andrew Weissmann: So that’s the issue. Is it one or seven? And she’s like, it’s just too ambiguous. And also, why didn’t you call the guy?
Mary McCord: Exactly.
Andrew Weissmann: And then she’s like, and where’s the passport that you say you took and looked at? Like she’s sort of like, you need more here.
Mary McCord: That’s right.
Andrew Weissmann: And maybe it is 2007, and she’s not saying it’s not, but she’s like, I just don’t see enough of it.
Mary McCord: That’s right.
Andrew Weissmann: So that’s on this issue of a minor.
Mary McCord: I want to talk about the witnesses too.
Andrew Weissmann: Yeah, exactly. So one of the things I found really interesting was it really became clear that the government is doing something here that you normally don’t do if you’re a good prosecutor, which is they’re cooperating down.
Mary McCord: Yes.
Andrew Weissmann: So when I did the Enron case like a million years ago, in the place to see years, you work your way up and you cooperate people lower to higher. Why? Because when you cooperate somebody, they’re going to ultimately, if they do it well, a judge is going to give them a lesser sentence. And you want the lesser sentence to go to somebody who’s less culpable. Like it’s not fair to allow the head of the crime organization to testify against the lower people.
But here, it’s really clear on page 26 that they say that this was a cooperator who was at the head of the organization.
Mary McCord: Can we just read this? Cause I think this is so incredible. ‘Cause she says, you know, I can’t credit this person and some of the other cooperators too.
The first cooperator who provided interview statements and grand jury testimony has two prior felony convictions, has previously been deported five times and was released early from a 30 month federal prison sentence for human smuggling as part of his cooperation in this case. He is the purported domestic leader of the human smuggling organization in which Abrego is accused of participating. He has been granted deferred action on deportation in exchange for his testimony.
Special agent Joseph acknowledged on cross-examination that the first cooperator will likely be granted work release as part of the conditions of the halfway house in which he currently resides following his early release from prison.
Andrew Weissmann: Note, to be clear, that does not mean–
Mary McCord: He could still be telling the truth.
Andrew Weissmann: Exactly. I mean, we have both put witnesses on who have very, very long so-called rap sheets and they still could be telling the truth. What’s remarkable here is they so wanted to bring these charges that you’re willing to cooperate down. That is just, you have to ask yourself, what does that tell you about what is going on here?
The other thing that I thought was remarkable is one of the government’s arguments here for why the court should find that Abrego Garcia is a risk of flight. So one of the reasons you might not give somebody bail is because you think they aren’t going to return to court, that they’re going to flee, is the government took the position. I mean, like, it’s laughable if it weren’t so serious. They said, well, he’s a risk of flight because we made we, the government, may deport him.
Mary McCord: Yeah, you heard that right.
Andrew Weissmann: Yes, the court said, guess what? That’s your action. That’s the government’s action. That is not a flight from the jurisdiction. That is the government’s position. I kid you not. That is the government’s position. You can go to page 35 of the decision.
And then final quick point, and Mary, I’ll turn it back to you, is one of the cooperators actually said, when asked, Abrego Garcia is not, you heard it, not a member of MS-13.
Mary McCord: That’s right.
Andrew Weissmann: So the government is required, just to be clear, to turn over Brady information. That is information that would tend to exculpate or impeach. And so presumably that was turned over to the defense team, has required under due process. And that is directly contrary to what we have been hearing from the administration and the Department of Justice as to, he’s like one of the leaders of MS-13.
Mary McCord: Yeah. So, way more to come on this. And again, neither of us can prejudge this case. But this opinion and this magistrate judge was very particular. And people might be saying magistrate judge, you guys don’t usually say that. So a magistrate judge is appointed not by the president and confirmed by the Senate. A magistrate judge is appointed by the district court judges for a term of years, and they can be reappointed after that. And they will handle things like detention hearings and also summary judgment hearings in civil cases, sometimes even criminal trials if the defendant and the government consent. But their decisions, their recommendations can be appealed to the district court judge, which of course the government has done here. And the government has said, vacate this opinion and you should be detaining Mr. Abrego Garcia. So we will see what happens there.
Andrew Weissmann: Mary, there’s another case. So just to be clear, the magistrate says that bail is granted to Abrego Garcia. Granted, he has an immigration hold. She was deciding this in the criminal case. There’s a separate issue with the immigration.
But that’s maybe a perfect segue to the Columbia student that I think sort of started this all off, because this Columbia student who is engaged in, at the very least, protests, and it remains to be seen whether the government can prove that it’s more than just pure First Amendment activity, but protests in connection with Gaza and what is happening in Gaza. And again, remains to be seen whether there’s more to it.
But it certainly on the face looks very much like First Amendment activity. And he is seized in New York. His wife is eight months pregnant. He has been in jail. His wife has actually had the baby and he was not allowed to go and see her. But the judge has ordered his release and he is released. And there is a, I think a really lovely interview of him.
And again, regardless of whether he ultimately gets deported or not, it’s like, just like Mr. Garcia, whether Mr. Abrego Garcia, whether he gets convicted or whether he gets deported, it’s all sort of from our perspective, it’s a question of due process.
And so, Mary, what did the judge do here? Like, why is he released and what happened here?
Mary McCord: Yeah, and just to be clear, he was never charged with any crimes, Mahmoud Khalil. He was picked up in New York. And so he was put into immigration detention and eventually told, although it wasn’t immediately, eventually was told that the Secretary of State, Marco Rubio, was taking away, remember he’s not just a student visa holder, he is a lawful permanent resident.
Andrew Weissmann: You can kind of delete the term permanent from that, given what the administration’s doing.
Mary McCord: Yeah. So eventually it was revealed that the Secretary of State had determined that Mr. Khalil’s continued activities and presence in the United States would compromise a compelling foreign policy interest. So then he was held, because the idea is, well, I’ve taken away your lawful permanent resident status, so now you’re removable, right?
This was challenged, he had immigration proceedings going on, but also challenged in federal court and a district court judge there. Originally back, we could go back all the way to May 28th, had said that he was very likely to succeed on his challenge to the statute that gives the Secretary of State the authority to take away lawful permanent resident status because it is so vague, like no one would know what it means to be compromising a compelling foreign policy interest, and that vagueness doctrine is especially demanding where we’re talking about First Amendment protected speech.
Andrew Weissmann: Right, right. In other words, like how do we know if all it is was that he was saying, I support Palestine and I oppose what Israel is doing in Gaza, that is, by the way, listeners may disagree with that, that’s not the issue.
Mary McCord: It is protected speech.
Andrew Weissmann: That’s protected speech. So the issue is, did the Secretary of State act on that alone or was there more than that? And so, it’s such a vague thing to have a statute that says you get to decide someone’s fate based on your view of someone’s “national interest”.
Mary McCord: Yeah. And with extensive briefing, right, the government really hasn’t given anything else other than an allegation that he wasn’t forthcoming about something on his original application for lawful permanent resident status.
So to get us up to present, the judge then on June 11th actually granted him habeas and joined the government from removing him based on the Secretary of State’s determination, said, look, if there’s removal for other reasons, my ruling doesn’t apply to that. And he said, I’ll decide after some more briefing in consideration whether to actually order him physically released on bail. Because if you want to give me something, government, about these other allegations, about the application that would cause him to remain in detention, give it to me.
This is what on June 20th he says, you gave me nothing, basically. I mean, I’m paraphrasing here. He didn’t say. But basically, he says, there is no reason to detain Mr. Khalil based on the Secretary of State’s determination, as I already ruled, and now no reason to detain him based on these allegations about his application. And all of this implicates First Amendment rights. So I’m ordering him released. And he indeed was released. He flew back from detention in Louisiana to his family in New York.
Andrew Weissmann: And this is a judge in New Jersey who was a long-time terrorism prosecutor in the Southern District of New York. So this is somebody who’s–
Mary McCord: We both knew him when he was a prosecutor.
Andrew Weissmann: Absolutely. And so this is somebody who would be very sort of friendly to the government in terms of, there’s no sort of bias there.
Mary, should we take a break and then come back to something you flagged at the outset, which is the Ninth Circuit ruled on the LA issues and sort of what their reasoning is, and then we can move on from there?
Mary McCord: We will do that. But before we do that, we’ll talk about the Supreme Court’s decision in yet another immigration-related case.
Andrew Weissmann: You’re right. Oh my God, you’re right. I can’t even keep up. Wait, and I even have notes in front of me.
Mary McCord: Yeah, I do, too. I almost never do, but I actually have notes.
Andrew Weissmann: Today, not only do I have a million screens up, but I also have like a million pages in front of me.
Mary McCord: Yes.
Andrew Weissmann: Okay. Let’s take a quick break. And we’ll come back.
Mary McCord: Enough of our problems.
Andrew Weissmann: Okay.
(BREAK)
Andrew Weissmann: Mary, you made reference to the Supreme Court. So the Supreme Court, was it yesterday, last night?
Mary McCord: Yesterday, yes.
Andrew Weissmann: It issued a very detailed comprehensive decision in the DVD case. Spoiler alert, I’m joking.
Mary McCord: Yeah.
Andrew Weissmann: Mary, what did the court do? In what case? What is its ramifications? And then I know that there were three justices who dissented. They actually wrote something, so there was something to talk about because we don’t actually know why the court did what it did. But what happened in the DVD case?
Mary McCord: Yeah. And the not-actually-knowing is really perplexing given the court’s other rulings involving the removal of immigrants without due process. This case is not about the Alien Enemies Act. It’s not about students being picked up on campuses. This is a case about people who do have removal orders. That’s not contested, but the government is wanting to remove them, not to their home country, but to some third country, a country where perhaps they could face torture, other physical abuse, persecution, and is not giving them the chance to challenge that removal to the country where they might be unsafe. They’re doing it super-fast.
And this is where a court came in a few months ago, a judge out of Massachusetts, and said, no, you have got to give people notice before they are deported to a third country, meaning third country, not their country from which they came, and give them that opportunity to seek review of that and say, I am worried under the convention against torture that I will be persecuted or tortured in that country. You’ve got to give them that chance.
Andrew Weissmann: This is one where, Mary, if you or I were in the government, we would go, what’s the big frigging deal?
Mary McCord: Just give them the opportunity.
Andrew Weissmann: There’s a lawful way to do this. Tell them what you’re planning on doing. Give them sufficient time. It doesn’t matter if it’s a week, two weeks. Give them time so that they want to challenge it and say that they have a reasonable fear of persecution in this country, which clearly need to tell them. Tell them it’s like that. And our job is to assess that and either agree or disagree.
Mary McCord: That’s right.
Andrew Weissmann: That’s what you do in the government. I mean, that’s what’s so remarkable here is like, my view of this is this is all about cruelty.
Mary McCord: And I think we had an episode that had cruelty in the title, and it’s also perplexing, right? Because in the Alien Enemies Act cases, the court, all nine justices, have agreed that before people were deported, removed, extracted under the Alien Enemies Act, they had that right to notice. That’s the authority being used to remove them from the country and to challenge it, to bring a habeas petition. Remember, in time, with enough time to actually have a hearing before they’re removed. That was Judge Boasberg’s case, JGG. That was the AARP case that we’ve talked about. All nine justices agree.
So it is perplexing when what the Supreme Court did on the government’s application was stay the district court judge’s injunction, preventing them from removing people without that kind of adequate notice and opportunity to be heard. It seemed to fly completely in the face of what they’ve already made clear. But of course, the stay was issued on the emergency docket and with no reasoning whatsoever.
Andrew Weissmann: I mean, when Mary says there’s no reasoning, it literally just says stay as granted. So you don’t know the basis. And that is actually causing some issues because the district judge has taken the position that this could just be about the class action component of what he did, but with respect to the named plaintiffs, with respect to certain people, that wasn’t before the court, that the court still has jurisdiction to bar them being extracted until they have an opportunity.
Now maybe, by the way, just to be clear, they may not be able to show that whatever country they’re going to be taken to.
Mary McCord: The reasonable fear.
Andrew Weissmann: Exactly. So it’s like this all could be sort of easily resolved, but there is ongoing litigation about this.
Mary McCord: There’s also litigation in the Court of Appeals. By staying the injunction means you could theoretically, except for that footnote caveat you just made, you could theoretically, the government could start deporting people without adequate notice, removing them to third countries. The merits of that, of the district court’s decision, are currently in the Court of Appeals. So what the Supreme Court is saying, the stay is granted pending disposition of the appeal in the Court of Appeals for the First Circuit, and disposition of a petition for a writ of certiorari should one be filed.
The most we know is really what we know, and it’s not a reason for the other six justices’ decision, if it was all six, and there is no count, right? There’s no count.
Andrew Weissmann: All we know is it’s at least five.
Mary McCord: At least five, that’s right. Could be that somebody else disagreed, but just did not join the dissenters. But we do have a dissent written by Justice Sotomayor, joined by Justice Kagan and Justice Jackson. And I just think it is worth reading the introduction of this, and then I know we need to move on because I think it will show pretty clearly what these three justices see as such a problem, which is pretty consistent with what we just said.
Here’s how it starts. In matters of life and death, it is best to proceed with caution. In this case, the government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an immigration judge found he was likely to face torture there. Then, in clear violation of a court order, it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive district court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya.
Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires, this court now intervenes to grant the government emergency relief from an order it has repeatedly defied. I cannot join so gross and abuse of the court’s equitable discretion.
Andrew Weissmann: And I should note that the whistleblower complaint that we talked about addresses this case as well. So again, it’s in the show notes.
Mary, let me ask you about the Ninth Circuit. We spent so much time talking about what Judge Breyer was going to do. But I think everyone who’s listening to this knows that the Ninth Circuit actually ruled against him with respect to the temporary restraining order, the TRO. And so what was its reasoning? How did it get to it on the issue of there was no notice to the governor, that didn’t seem to be consent to the governor? How did the court deal with that?
And then if you remember the two other statutory provisions were this issue about a rebellion, or the sort of risk of a rebellion, or whether the federal government could still do its functions, its law enforcement functions. How did the court go about solving for that when the district court opinion, I think both of us thought was pretty solid on all of that?
Mary McCord: Pretty well reasoned, yes. So the Ninth Circuit, and again, this is not a final decision. This is a stay of the lower court. Now, of course, a stay means the National Guard, federalized, can still continue to be doing whatever it is doing. Well, with a caveat to that, it can still continue to be federalized in Los Angeles. And there’s no mention of the Marines.
So the first issue was, can the court even review this? Or is this a political question that means a court can’t even review what Governor Newsom in the State of California argued?
Andrew Weissmann: What was the government’s view?
Mary McCord: Of course you can’t review that, your honor. No judicial review. Political question, committed to the executive’s discretion, no judicial review. That was rejected.
Andrew Weissmann: Yes, that’s the best part of their decision, actually. I want to point out that one of the judges who was appointed by Donald Trump in the first term asked that question, said, are you saying if there was no violence whatsoever in Los Angeles or anywhere in the country, that you would still be able to do this and we couldn’t say anything? And the government’s answer, okay, everyone’s sitting down, the government’s answer was, yes, we can, and you can’t do anything about it. Even if there was no violence whatsoever, even if the statute clearly was not being applied.
Mary McCord: There was no good explanation. In fact, I think his question was, assume that the government says, the president says, we just don’t have enough immigration enforcement agents, and so I’m going to federalize the National Guard to do immigration, and that’s the rationale of you can’t adequately execute the law because we just didn’t have enough, and Congress hasn’t appropriated enough money for DHS to hire more. And you did it that, and so we just federalize the National Guard to do it. Would that be also not reviewable? And you’re right, the answer was not reviewable, and also that would be okay to do.
So it isn’t important because it says this is reviewable. And we had predicted that based on even the Supreme Court in the Alien Enemies Act cases saying that interpretation of statutes are reviewable. The court made it a point of saying that political question non-reviewability is usually limited to constitutional cases, not statutory cases. And this case, as presented in the Ninth Circuit, was about authority under a Congressional Statute 12406 that we talked about last week.
And then I think also very importantly here, and this goes to the examples we were just talking about, the court said it’s also reviewable for good faith. Is it a colorable assessment of the facts and the law within a range of honest judgment? Is that what’s happening here when the executive uses this authority? And if that use of the authority really is not within that range of honest judgment because it’s maybe not done in good faith, that is something that could be reviewed. And I think that’s important.
Andrew Weissmann: It is. Although, Mary, would you agree with me that that standard, the good faith standard, if you’re in the government, you’re almost like, great, that’s the standard you want to apply because it’s such, I mean, it should be a very easy standard for a normal administration to meet.
Mary McCord: That’s true. But what we keep seeing in this administration is statements outside of court, right, not matching statements made inside of court, facts on the ground, not matching representations in court.
Andrew Weissmann: We’re seeing what could easily be viewed as bad faith. I’m just making sure people understand that the good faith standard is one that normally you’d be like, great, you want to evaluate this on good faith. The standard that would be tough is that they said the government has to meet strict scrutiny, you know. It’s like it needs proof beyond a reasonable doubt.
The standard, which is, oh, you just have to be acting in good faith. If you’re the government, you’re like, great, bring it on. Of course, I’m acting in good faith. Like you might disagree with me. You might think it’s the wrong choice. You might think they haven’t cited the law correctly, et cetera, but I’m acting in good faith. In other words, I’m not a liar.
Mary McCord: That’s right. And so other important points. The Ninth Circuit did not even review the district court’s decision that this was no rebellion. You know, we talked a lot about this last week because he said there were two bases for federalizing the National Guard. One was rebellion. We don’t even have to address that because we think the other bases that the executive was unable to execute the law with regular forces and they don’t really get into what regular forces is, but unable to execute the law, that that one was a legit basis. And so they don’t even address rebellion.
And then with respect to the point you raised about the statute requiring orders to be issued through the governor, the Ninth Circuit said that is merely a procedural requirement, not a consultation requirement. It’s good enough if the memo went to the adjutant general with the memo letterhead saying through the governor. And they even said, hey, the state could change that. They could legislate that it must go directly to the governor because the adjutant general is, you know, works for the governor and is appointed by the governor. They could change that. But that’s good enough to meet the requirements of the statute. So those are the rulings.
But here are the things that are left open. They explicitly say we are making no decision about whether either Federalized National Guard or the Marines are engaged in domestic law enforcement that would violate the Posse Comitatus Act, or even whether this Statute 12406 is an exception to Posse Comitatus Act.
Andrew Weissmann: They just basically are like what they’re actually doing on the ground was not before the Ninth Circuit.
Mary McCord: That’s still in front of the district court. And then they actually never discussed the Marines at all. You know, they didn’t say whether Federalized National Guard or Marines are in violation. Actually, they didn’t even talk about the Marines. That is now the question, though, back in front of the district court.
One of the questions that the district court just had briefing on, and we both just read those briefs filed yesterday afternoon, is can I go ahead now and have my preliminary injunction hearing on these questions about whether what Federalized National Guard and Marines are doing is in violation of the Posse Comitatus Act because it is domestic law enforcement. Of course, the State of California is saying, yes, you can do that. That was explicitly left open by the Ninth Circuit for you. And it wasn’t part of what they have ruled on.
The government basically agrees that it is not part of what was ruled on, but says they’re just doing protective activities, nothing that is domestic law enforcement, nothing to see here. So, all of that is going to still be in front of the district court. We’ll see what he does now that he’s had that briefing and then we’ll come back to this issue.
I have so much more I’d love to say about the way the Ninth Circuit gave deference based on the history of things and there’s just not time. And so maybe we’ll get time another time.
Andrew Weissmann: Yeah, I think we’ll have to come back to that also, because I do think the government’s position here also was a little bit of a shocker. That’s the papers that, Mary, you were referring to that were filed yesterday. Again, they constantly are taking this maximalist view of essentially Congress can’t control us and courts can’t control us. I mean, that, I think in some ways is sort of the theme for almost everything that we’re seeing here, including the whistleblower context. I mean, they sort of rampant.
Mary McCord: And I’ll say also, the court hearing this morning, government said in court, no judicial review, your honor. And this was about the Secretary of DHS’s decision to rescind, take away temporary protected status for Afghans and Cameroonians. And the government’s position was no judicial review. So, it’s a theme.
Andrew Weissmann: Okay. So, Mary, thank you.
Mary McCord: Okay. My heartbeat.
Andrew Weissmann: Yes, thank you. Thanks everyone for staying engaged, staying with us. Thanks for listening. Remember, you can 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 one we’ll be releasing next Monday with our colleague, Tess Bridgeman, who is fantastic. So you’ll definitely want to hear that. And that will be the deeper dive into war powers and international law issues in connection with what is happening in Iran.
Mary McCord: 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.
Andrew Weissmann: Search for Main Justice wherever you get your podcasts and follow the series.