On this week’s episode, Andrew and Mary start with the major capitulation of the Paul, Wiess law firm to Trump’s demands late last week, in exchange for rescinding an EO targeting the firm. This is the chilling effect they’ve been talking about in action. Then: what are the consequences of the Trump administration defying court orders from US District Chief Judge James Boasberg? The deportation of Venezuelan migrants without due process seems to be careening into that constitutional question, so Andrew and Mary break down the latest on that case, as the government invokes the “state secrets privilege”. And lastly, they detail the legal issues surrounding the now-infamous Signal chat reported by The Atlantic– an extraordinary demonstration of gross negligence when it comes to national defense information.
Further reading:
Here is Mary’s piece on Just Security: Dissecting the Trump Administration’s Strategy for Defying Court Orders
And here is Andrew’s piece, also from Just Security: The New “Blacklists” Work When Law Firms Stay Silent
And here is the criminal code Andrew and Mary referenced: 18 U.S. Code § 793 — Gathering, transmitting or losing defense information
Want to listen to this show without ads? Sign up for MSNBC Premium on Apple Podcasts.’
Note: This is a rough transcript. Please excuse any typos.
(MUSIC PLAYING)
Andrew Weissmann: Hello, and welcome to “Main Justice.” It is Tuesday morning, but it’s not really Tuesday morning where I am, but it is Tuesday morning where you are. I’m on assignment.
Mary McCord: On assignment. Okay, that’s a good one.
Andrew Weissmann: I think we both go on assignment.
Mary McCord: Yes.
Andrew Weissmann: But anyway, I’m on assignment. But you know what? I’m still so tethered to what’s going on —
Mary McCord: U.S. news.
Andrew Weissmann: — because there’s so much. But anyway, it is Tuesday morning somewhere.
Mary McCord: Yes, where I am. Where I am.
Andrew Weissmann: Yes. And it is March 25th and I am talking to the great and wonderful Mary McCord, who has been described as the Katharine Hepburn of podcasting, which is my favorite.
Mary McCord: I think we should open a podcast every single week with that. That’s what I think. Yes.
Andrew Weissmann: I’m down with that. And I know, isn’t that just the nicest thing?
Mary McCord: And it’s our only, like, levity because everything else we’re going to talk about today pretty much sucks. So, there we go. That’s the legal term, the technical legal term.
Andrew Weissmann: You’re right. This is one where I was actually thinking about that. There’s so much to talk about and it’s serious.
Mary McCord: Yeah.
Andrew Weissmann: So let’s go into it. We’ll try and figure out moments of levity. There’s not a lot of fun and light. It’s a little bit like fun and levity on the Titanic.
Mary McCord: Yep.
Andrew Weissmann: So, okay, what is on our dance card?
Mary McCord: So we will start out with a topic we have discussed a number of times, but it keeps getting more serious, and that is the government’s assault on law firms. I mean, since we covered this topic last week, we saw Paul Weiss, a major, major multinational law firm, capitulate in the face of Trump’s blacklisting executive order. And that, of course, emboldened Trump, I think, to put out a directive to his attorney general to seek sanctions and make professional responsibility referrals and all kinds of things against lawyers that she deems as engaging in things that would be unfounded or frivolous. And we’ll talk about what that means.
Then we’re going to talk more also about a topic that we have started discussing, which is the judge Boasberg’s here in the D.C. District Court. His orders with respect to the deportation of alleged members of Tren de Aragua as a foreign terrorist organization under the Alien Enemies Act. There has been a real showdown over the course of last week, even beyond what we discussed on Tuesday, over whether the government just outright violated the court’s order and we’ll talk a little bit about where that stands as well as where the merits stand and a pretty remarkable filing last night by the government invoking the state secrets privilege in order to not tell the judge the details of things that he has asked to learn.
Andrew Weissmann: There’s something new for us because we have not previously —
Mary McCord: We have not.
Andrew Weissmann: — discussed state secrets. And that’s something you and I know very well from —
Mary McCord: That’s right.
Andrew Weissmann: — our national security backgrounds. I actually teach that, state secrets.
Mary McCord: I’m sure in national security law.
Andrew Weissmann: Yeah.
Mary McCord: I did too when I was teaching that. And then finally, we will talk about the news also that broke yesterday, pretty extraordinary. Also something that Andrew and I care a lot about when it comes to national security, and that is the just unbelievable news that a Signal chat between a number of high level national security officials in the administration, including the Secretary of Defense had apparently inadvertently included a journalist on it and plans for an attack on the Houthis in Yemen were discussed on this chat right there where this journalist was able to access all of this. Just an extraordinary breach of protocol, not just protocol, but rules, executive orders, regulations, and law.
Andrew Weissmann: Wait. Wait. And law.
Mary McCord: And law.
Andrew Weissmann: And law.
Mary McCord: Criminal law when it comes to the proper safeguarding of national defense information. If people are thinking, wait a minute, haven’t we had issues before with the failed proper —
Andrew Weissmann: Mary, where did I hear that? Wait.
Mary McCord: Yeah.
Andrew Weissmann: Where did I hear that?
Mary McCord: Like maybe something stored by the toilet in a bathroom or something like that. Yes, you are right. That is what we’re going to be telling.
Andrew Weissmann: So let’s not jump too far, but here’s the through line. And the through line is very much an attack on law and the rule of law, there’s attack on law firms, lawyers, which people could think, why do I really care about an attack on law firms and lawyers? We’re going to tell you why. And it’s not just because the two of us are lawyers. We’re actually neither of us are at law firms. And it is really important to understand what is going on here. The attack on lawyers, law firms, judges is all a way of crumbling the rule of law and the people who are necessary to the infrastructure of the rule of law. And that feeds into our third topic, which is what is going to happen when the executive sees examples of potential criminal violations by members of the executive branch and is it just be completely ignored? That is what they call a rhetorical question.
Mary McCord: Yes, I was going to say.
Andrew Weissmann: So, should we start with the law firms and lawyers about the Paul Weiss?
Mary McCord: I want to say something and kick it to you because you wrote a piece that’s in Just Security on this that —
Andrew Weissmann: Okay.
Mary McCord: — I think is a great piece that people need to read. But let me also tell you about a headline in “The Washington Post” today. Law firms refuse to represent Trump opponents in the wake of his attacks. That’s exactly what I think this administration wants. It wants major law firms to start saying, not only can we not do any pro bono work, but we’re not even going to defend those who Trump is going after as part of his campaign of retribution. And that is something I’ve never seen in my long career of criminal prosecution, national security, and now doing civil litigation. And it’s something I think you foretold in your piece about Paul Weiss’s capitulation. So tell us about what Paul Weiss did after it got blacklisted by executive order last week.
Andrew Weissmann: Sure. So people will remember that Covington & Burling was the subject of an executive order because it was representing Jack Smith and still represents him. And they pulled the security clearance for one of the partners who was representing Jack Smith. Then there was an executive order with respect to Perkins Coie with various allegations with respect to them, but they went to court. And Beryl Howell, the former chief judge of that district, now a district judge, has issued a decision saying that that executive order, the provisions that were challenged, that violates the First Amendment.
So that was the status of things that last week we talked about in yet another executive order, which is in the face of that decision by Beryl Howell. Now, admittedly, the government is appealing it. They didn’t wait for that appeal. They went ahead and issued yet another executive order, this time against Paul Weiss. And what has happened since then is that we also —
Mary McCord: And we’d stop right there for a minute because that’s pretty shocking, right? That when you’ve just had a judge issue a temporary restraining order, restraining implementation of most of this executive order, the parts that said you can’t go in government buildings, you can’t meet with government attorneys, right, these kind of parts, you know, it’s really chutzpah to say, you know what, we’re just going to go march on ahead and do the same thing with respect to another law firm.
Andrew Weissmann: Right. The usual way that’s dealt with in a situation that is not urgent or desperate is that you would take the appeal —
Mary McCord: Yeah.
Andrew Weissmann: — and see what happens there, or you try and get an emergency stay —
Mary McCord: That’s right.
Andrew Weissmann: — of the decision if you thought there was really something else, but you wouldn’t go ahead and then, assuming that you’re —
Mary McCord: Keep doing it.
Andrew Weissmann: — exactly. Because assuming that you’re wrong, as a judge has already determined, you’re now violating somebody else’s First Amendment, right?
Mary McCord: That’s right. And it wasn’t just the First Amendment, also due process under the Fifth Amendment and Sixth Amendment right to counsel.
Andrew Weissmann: Exactly. So Paul Weiss, everyone was sort of wondering, where are they? Where’s the lawsuit? Because you’re thinking there’s a lawsuit that won on this. So, meaning that you know they can go into the D.C. court and they’re going to 99 times out of 100, because there was no daylight in terms of the executive orders in many ways. It seems remarkably frivolous, the executive order, because they were talking about a former partner, or they gave us an example, the fact that Paul Weiss represented people who were suing the Oath Keepers of the Proud Boys.
I mean, how is that something that a law firm should be vilified for? That’s legal. That is lawful to do that. You know, who engaged in good faith litigation? All of the people who are attacking what the Biden administration were doing in various ways engaged in litigation against it. As long as it’s in good faith, that’s their right. That is what the courts were for. No one in the Biden administration said, oh, let’s vilify the law firms who are doing that.
Mary McCord: And put out executive orders blacklisting the law firms that are doing that. That’s right. It was like, we will go fight it in court. And sometimes they won and sometimes they lost.
Andrew Weissmann: So what happened is Paul Weiss reached some kind of settlement. The terms, no one has actually seen the written agreement. There are public reports about it. There’s some parts of it that there are in dispute as to what exactly are the terms, mostly about the Paul Weiss commitment to diversity, equity and inclusion. It appears that Paul Weiss is agreeing to having an external audit of its DEI programs, but it’s not clear what, if anything, has been agreed to with respect to DEI more than that. Paul Weiss has agreed to spend $40 million, 4-0 million dollars, $10 million dollars for four years on causes that they say are of mutual interest of Paul Weiss and the administration, presumably giving them the best case scenario.
These are things that they would otherwise have supported, but we don’t know that. And, of course, what you’re thinking is, what do you think the odds are that Paul Weiss is now going to take on litigation against the administration or take on pro bono work that is partisan? One of the things they seem to have agreed to do is to not engage in partisan legal work in their pro bono affairs. And I have to tell you, having been at a law firm, that’s what law firms do. Let me just give you an example. You could have a law firm that says our pro bono work is going to be pro right to choose and or we’re going to be pro some cause that we strongly support.
Mary McCord: Gun safety regulations. In fact, Paul Weiss was a leader in promoting gun safety regulations and defending gun safety regulations.
Andrew Weissmann: So are you now a law firm routinely in its pro bono work takes on partisan matters? The idea of having an executive order that chills that taking on that kind of work is the problem. This is a shot across the bow to say, if you are on the wrong side, we are going to make it really hard for clients to stay with you. Essentially, if you sue us, you are now going to be sort of an enemy of the administration. If you take on immigration work, that could happen. So let me give you two points that I talked about in my piece just really quickly.
One is comparing the moment that we’re in to the McCarthy era, that’s Joseph McCarthy. And I remember talking to my parents who lived through that about the difference between the Joseph McCarthy era and Trump 1.0. And one of the things they said was that a big difference is that even though Trump was president in Trump 1.0, there wasn’t the same fear that existed during the Joe McCarthy period where people capitulated or were silent. They capitulated, obviously, the whole story of Hollywood and in academia of people being blacklisted, and whether it’s for monetary reasons or just fear of being called out and vilified, and it being publicized, there was silence. And they said that was really oppressive, the feeling that you were alone and isolated. And that’s something that we’re seeing now, this idea of separating to conquer. And this is not original to me. Benjamin Franklin famously said in a dire situation like this, it is important for us to hang together or surely we’re going to hang separately.
The idea that if you think about what’s in your own individual interests now in the short term, that is not necessarily in your long term interest, because who are you trusting? I mean, here, the fact that the Paul Weiss deal fell apart in ways that appears to in certain ways, doesn’t mean they’re going to be protected going forward. It doesn’t mean they’re not going to lose business anyway, including business from people who think what they did capitulating is wrong and thus don’t want to support them. They could lose partners, they could lose associates.
And the other thing that I just want to make a point is people may not remember this, but we talked about a Supreme Court decision in Murphy versus Missouri. That was a case where the people aligned with Donald Trump were suing the Biden administration claiming that the administration was taking a very browbeating approach and coercive approach to what could be aired in social media and trying to get them to take it down.
Mary McCord: Jawboning, they called it.
Andrew Weissmann: Yes, jawboning. Right. I always hated that term.
Mary McCord: I know, me too. But that’s what the case is known for now, jawboning.
Andrew Weissmann: Yeah. And the idea was to say, you need to take this down. And the district judge said, in hyperbolic terms, this was the worst infringement of the First Amendment ever because you had the administration doing this. Ultimately, it went to the Supreme Court and the Supreme Court reaffirmed the principle that you should not be engaged in sort of improper jawboning, but said that that’s not what the Biden administration was factually doing here. There’s insufficient evidence of it. But now that the shoe is on the other foot, and you have Trump in the presidency, that’s exactly what they’re doing. I mean, that is the whole idea of this.
Mary McCord: But more than just jawboning in private —
Andrew Weissmann: Absolutely.
Mary McCord: — these are very public things that affect business. And that’s one where you’re seeing —
Andrew Weissmann: It’s not jawboning. It’s a bludgeon.
Mary McCord: That’s right. It’s a bludgeon. And I think, you know, the point that you’ve made in your piece that that I think many of us are worried about that is reflected in this “Washington Post” headline and the story that follows is this is having a chilling effect and big law firms are saying, maybe we don’t want to be involved in that. Now I will say so that we don’t hear from Mr. Karp about the podcast that he claims in his letter to his law firm on the weekend, that to be clear and to clarify misinformation, he says, the administration is not dictating what matters we take on, approving our matters, or anything like that. We obviously would not and could not ethically have agreed to that.
Instead, we have agreed to commit substantial pro bono resources. And as you said, $40 million over four years in areas of our shared interest in addition to the $130 million plus that they already commit annually, he says. And he says they will continue all of the existing pro bono work they already do and continue in their long standing role as a leader of the private bar in the pro bono and public interest beer. And we will see. Right? It’s one thing to say that.
Andrew Weissmann: Yes, we will see. Exactly.
Mary McCord: We will see.
Andrew Weissmann: And so that’ll be interesting to see. I noted very carefully their wording, which is we’re going to continue our existing work.
Mary McCord: That’s right. What about new? Yeah.
Andrew Weissmann: That’s very different than new work. And so, there’s a lot of reporting that this approach by Paul Weiss was very much dictated by the corporate side and the concern about losing business. I don’t know if that’s true or not. But I agree with you that and it’s fair to say, let’s wait and see what they do. But here’s the certainty, the capitulation, the fact that they didn’t do what Perkins Coie did has an effect now.
Mary McCord: That’s right.
Andrew Weissmann: It is a clarion call to the White House saying this works. And so that is why you then saw the next order, which is about going after frivolous litigation. And when we’re getting sued, if you see frivolous litigation, Attorney General Bondi, you need to be looking at that very, very closely.
Mary McCord: Look in the mirror. That was my reaction.
Andrew Weissmann: Yes.
Mary McCord: Look in the mirror when it comes to frivolous litigation.
Andrew Weissmann: Yes, in positions. But here’s the devious part of that. This is how this works. You take something that is facially fine. There’s nothing wrong with saying, hey, I think there can be frivolous litigation, and it’s really important to stem it. Absolutely. There are processes. So in civil cases, there’s something called Rule 11 of the Federal Rules of Civil Procedure where a judge finds that something’s frivolous. And that’s a very, very hard showing that it means there’s no good faith basis for it. There’s no basis of fact. So very low threshold to meet and to bring that kind of case, very high threshold to show that something’s frivolous.
But the way this order to the attorney general is written is not in some bipartisan way that says, look through everything. It’s clearly targeted to look at our enemies and then do that. And so what it’s saying is, if you sue us, this is what you can expect. And as you said, Mary, and I’m going to stop talking because I do get triggered by this, which is if it were even handed, you’d think it might apply to some of the positions that the administration is currently taking. Mary McCord: That’s right. And not to mention, folks may recall that in some 65 or so cases challenging the results of the election in 2020, every one of those was rejected, save one on a minor point that didn’t affect the outcome of the election. And in some of those cases, judges found just this, that they were frivolous, that they were baseless. They asked for attorneys to show cause why they shouldn’t be sanctioned. And in some cases, attorneys were disciplined by their bar. Rudy Giuliani, Jeffrey Clark, right, have faced Barr and others. John Eastman barred disciplinary proceedings for bringing frivolous and vexatious litigation. And this was litigation brought on behalf of Donald Trump and Donald Trump’s campaign back in 2020.
But today, what we’re seeing in a lot of these executive orders, and this is just a directive to the attorney general, Pam Bondi, a lot of sort of narrative upfront accusing big law firms of engaging in partisan attacks through their pro bono practices. He even accuses big law firms of counseling clients to conceal their past or lie about their circumstances with respect to pro bono work done for people seeking asylum. He makes that accusation and then goes on to say far too many attorneys and law firms have long ignored these requirements referring to the roles you were just talking about, Andrew, about not bringing frivolous or vexatious litigation. He says too many attorneys and law firms have ignored these requirements when litigating against the federal government or in pursuing baseless partisan attacks. To address these concerns, I hereby direct the attorney general to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.
Now it’s not up to the attorney general to dispense sanctions, right? This is up to a court. But he’s basically saying, go play hardball in the courts. And he’s also saying in further paragraphs, make referrals to bar associations referring people for violating rules of professional responsibility. Make those referrals when you think you should. So she’s giving her this huge discretion to just basically deem whatever she thinks, and I would argue likely for political purposes, are frivolous or vexatious claims, and then seek sanctions, make bar referrals. And even though I think that courts will reject these and bar counsel will reject these, the person has to go through that process of defending themselves against what are probably going to be baseless accusations, both in court and in front of the bar. So the chilling effect, to go back to the Paul Weiss —
Andrew Weissmann: Yeah.
Mary McCord: — the chilling effect is there. And I think this is all very calculated.
Andrew Weissmann: And this is one where I’ve done criminal litigation, obviously, and I’ve done civil litigation. I hate Rule 11 type motions. I think the bar is so low, and to accuse somebody of not even having a good faith basis, I mean, you better have really strong proof of that, like they’re knowingly misrepresenting something. And on the law, it’s even harder, I think, because you so easy to have a good faith argument as to why the law should be changed or should be different. So I mean, the irony and the hypocrisy is rife. But these things that we’re talking about, the actions against Paul Weiss, which by the way, just to be clear, is a victim here, but we’re talking about its response to what’s happening.
But what the administration’s doing is really sending a chilling effect to lawyers challenging things. And what we’re next going to talk about, and this is like a perfect segue, is one such challenge before Judge Boasberg, which is the unusual invocation of the Alien Enemies Act. And now, as you noted, the invocation of state secrets to not even answer questions that get at the judge’s unique independent authority to determine whether his order has been violated. So let’s take a break and turn to that litigation and the developments that have happened since we last spoke to everyone a week ago.
Mary McCord: Sounds good.
(MUSIC PLAYING)
(ADVERTISEMENT)
(MUSIC PLAYING)
Andrew Weissmann: Mary, what’s new in the Judge Boasberg D.C. case on the Alien Enemies Act?
Mary McCord: So this is now proceeding in multiple facets. Last week, we broke it into two parts and I just want to update on that and we’re going to focus on one piece of it. So as we talked about last week, there’s the whole legal issue about whether the Alien Enemies Act can even apply when there’s no declared war and when the government’s argument is that a criminal gang, now labeled a foreign terrorist organization is tantamount to a nation state that has invaded this country for purposes of that act. That’s the legal issue. And that is the basis for the deportation of alleged members of this Venezuelan criminal gang, I guess, a week ago, Saturday, on the 15th of March in two flights that took off at some unknown exact time during the hearing that Judge Boasberg had on the legal issue. That legal issue, putting aside his order, remember he ordered no one to be deported under the Alien Enemies Act until he could get a full briefing on whether it should apply here, even if it did apply, whether the people being deported shouldn’t have also been entitled to due process, a chance to challenge, whether they were even were members of that street gang.
He said, while I’m getting that full briefing, there is no one to be deported under that authority and any planes that have taken off need to be turned around and brought back. The merits of the legal issue on the appropriate use of Alien Enemies Act and due process, the judge had a hearing on that on Friday. He issued an opinion on that on Monday morning, just yesterday. That’s really just yesterday, wow. Where he said that at the very least, the plaintiff class is likely to succeed on the argument that they’re entitled to due process to challenge whether they’re even members of Tren de Aragua and he would table for another day the other issues about whether the act applies.
Andrew Weissmann: By the way, I mean, this is going to sound terrible, but okay, I’m going to say it.
Mary McCord: Okay.
Andrew Weissmann: Isn’t this a little bit like I told you so? Remember, I said, Mary, I may be shocked you last week because I read a case. I was reading the cases in their brief and one of the key things in the hypothetical we raised was this idea that alleged Nazis post World War II, but just shortly after World War II, were entitled to a hearing. And the attorney general at that time agreed and that, by the way, led one of the judges in the Court of Appeals, which we’ll get to, making a line about, she said, you know, Nazis were treated better than what you’re doing here.
Mary McCord: It’s exactly right.
Andrew Weissmann: Because they allowed them to have a hearing because we are now hearing their reports that, as you would expect, some of the people who are deported may not, in fact, be part of the criminal gang, that there was a mistake. And that is the reason that you have due process.
Mary McCord: That’s true.
Andrew Weissmann: Because even if you agree the statute applies, you have a right to say, I’m not in the group covered by this statute, and that didn’t happen here. And so that’s the thing that Judge Boasberg said he found that there would be likely to be success on the merits of the plaintiffs, at least on that issue.
Mary McCord: That’s right.
Andrew Weissmann: He didn’t need to get to the other issues because the issue of a hearing was something that didn’t happen. And by the way, there are reports that some people who were deported by the government have actually been brought back. So everyone should understand that’s the reason that you don’t want to have a government just say, I am labeling person X as part of TDA and they’re gone.
Mary McCord: And they’re gone.
Andrew Weissmann: And if you say, oh, the government can do that and it can never be challenged, then there’s no check on that.
Mary McCord: It’s a lot of people that could just be disappeared, right?
Andrew Weissmann: Right.
Mary McCord: And this is why this is all super frightening. You did, though, lead to the other little status update before we get to the state secrets privilege being invoked, which is that there was something else that happened on Monday, which was an argument in the Court of Appeals actually on the TROs originally issued by Judge Boasberg a week ago, Saturday on March 15th. Those had been immediately appealed. So what was happening in two different places was Judge Boasberg was ruling and did rule yesterday on the government’s motion to vacate those TROs from March 15th. Meanwhile, the court of appeals yesterday actually held a hearing on whether those TROs should be reversed. And that’s where you had Judge Millett saying, even the Nazis got better treatment than this. So we will await that ruling. But in the meantime —
Andrew Weissmann: Wait, Mary. Can I raise a question that I’m sure some of our listeners may have? Because we’re in like second year law school here. So here’s the question. I thought that you and I had talked about how TROs are not immediately appealable, at least not normally, and that normally someone who wants to appeal has to wait for the full preliminary injunction. So how is it that the government here is up on appeal on a TRO when you and I have been saying to our listeners, no, no, no, that’s not usually what happens or not is allowed.
Mary McCord: Yes. Well, there are some exceptions to that. And the government is, of course, in every case where it’s appealing a TRO arguing that those exceptions should apply here because of the impact of the TRO on what the government wants to do. And, we’ve seen other situations where the circuit has just said, no, sorry, you can’t appeal that. And this is one where I was not able to listen to the argument in real time yesterday, and there’s not a transcript that’s available yet. So I don’t know if it started out with more discussion about that. That was not reported in the reports that I’ve seen, but I’d be surprised. I know there was also discussion. Another legal issue here is about whether this is the right place. The government is arguing that this shouldn’t be in D.C. at all. These cases should be brought as individual habeas corpus cases.
We talked about that for sure a couple weeks ago when we talked about the Mahmoud Khalil case, that they should be brought individually on behalf of each deportee and they should be brought down in the jurisdiction where they were detained and from which the flights departed, which I believe was Harlingen, Texas. So that leads us to the showdown, right? The showdown over whether the government violated the court’s order on March 15th not to deport anybody based on Alien Enemies Act authority and to turn around any planes that were in the air. The judge has been trying all week to get to the bottom of when the planes took off. Here’s what he wanted to know. I’ll just read it.
Andrew Weissmann: Okay.
Mary McCord: What time did the plane take off from U.S. soil and from where? What time did the planes leave U.S. airspace? What time did they land in which foreign country, including, and if it made more than one stop? And what time were individuals subject solely to the proclamation, meaning the Alien Enemies Act proclamation transferred out of U.S. custody? And actually, how many people were aboard the planes solely on the basis of the proclamation? And I want to just pause there for a minute because the judge has been clear and he was clear about this in his opinion yesterday that his TRO was only about people who were being deported solely under the authority of the Alien Enemies Act.
And he said, if you were relying on the Immigration and Naturalization Act authority or the fact that these were members of a foreign terrorist organization, it could be deported on those grounds. My TRO doesn’t apply to those other grounds. So that’s why he had to be clear. Tell me who you were deporting just on this Alien Enemies Act Authority.
Andrew Weissmann: Because that’s all that was before.
Mary McCord: Would have violated his order.
Andrew Weissmann: If you’ve got some independent lawful basis, so be it.
Mary McCord: Now there could be questions about the application of those other independent basis —
Andrew Weissmann: Of course, but that’s not important, right?
Mary McCord: — but they didn’t sue on that. That’s right. They didn’t sue on that.
Andrew Weissmann: Exactly.
Mary McCord: So this has been a back and forth all last week with deadlines set by the judge for the government to make declarations and representations, and they would come back in and resist, and I won’t go into how many orders were back and forth. But ultimately, he said —
Andrew Weissmann: Remember, the latest is you can give it to me privately. If you want to give it to me privately, you can do that. You’re just going to have to make it clear what your legal authority is for doing that and why it’s appropriate. But if it’s so sensitive, and you think you have a basis to give it to me solely, not with the other side, what’s called ex parte —
Mary McCord: Ex parte, yup.
Andrew Weissmann: — and he will review it. And so that’s sort of how it’s left. And so just remember, what we’re dealing with is that the court saying, it’s not like the public would know, but the court would know. So the concerns about secrecy and public dissemination are dwindle to infinitesimal because as the judge said he has sat on the FISA court, he deals with classified information all the time. So he’s like, you can give it to me privately, but you obviously have to have a legal basis for doing that. You’ll have to set forth.
Mary McCord: He also has been clear, it’s not obvious that there’s any classified information at stake here. The government itself —
Andrew Weissmann: Full stop.
Mary McCord: — has been putting out publicity about these flights and showing video of these flights, etcetera. He ultimately gave the government till today to show cause why they should not be held in contempt and to invoke the state secrets privilege if they were going to invoke it. And they actually did that late last night. They didn’t actually wait till this morning. And that is a privilege that is rarely used, but it’s in civil litigation when the information that would be needed in that litigation would cause the government to have to reveal something that would be so damaging to national security or foreign policy, meaning our relations with other governments that it just can’t be revealed in court.
This is called a privilege. It’s not something that there’s a statute about. It’s not in the constitution. It’s a common law privilege that has evolved over time, and there are different ways to deal with it when it’s invoked. It’s kind of like the civil side equivalent to the Classified Information Procedures Act that we talked a lot about when we talked about the criminal charges against Donald Trump for the mishandling of classified information at Mar-a-Lago. It gives the government and there’s all kinds of criteria. It has to be declarations from the heads of agencies who want to protect the information. The attorney general has to agree with that.
There’s always been a committee, a state secrets privilege committee at the Department of Justice to review every request of the government to even invoke it before it could be invoked in court because it can be so damaging to people trying to actually litigate against the government. But sometimes it’s resolved, and this is why it’s kind of like seep in some ways by the government stipulating just certain other evidence or certain other things in a plaintiff’s complaint so that it doesn’t have to reveal what are called state secrets. It really should have a different title, honestly, because I think that can be confusing to people.
Andrew Weissmann: So one thing it’s worth noting is the government, just to be fair to them, it is not making this privilege up. This is a privilege that has been long recognized by the Supreme Court of the United States.
Mary McCord: Oh, yes.
Andrew Weissmann: There is and there always has been concern about the government invoking it for improper reasons. It is not to be invoked just because something embarrassing has happened or to cover up something —
Mary McCord: That’s right.
Andrew Weissmann: — embarrassing or worse.
Mary McCord: That’s right.
Andrew Weissmann: So you couldn’t use it because you don’t want to give out information that would reveal contempt of court, for instance. I’m not saying that happened, but like, that wouldn’t be a proper use of it. But it is a recognized privilege. It’s unclear here from the government’s filing what the basis is. In other words, they put in affidavits, but it’s not clear how any of the answers really get at anything that goes to state secrets when you’re dealing with information whether it would just be made public or not, because as you said, Mary, so much about this the government has touted publicly. They want the credit —
Mary McCord: That’s right.
Andrew Weissmann: — for look what we’re doing to these gang members. Leave aside that they haven’t proved that they’re gang members. They want that credit.
Mary McCord: That’s right.
Andrew Weissmann: They’ve been touting this publicly. They have this video out there. But it’s particularly unclear how the state secrets privilege would work when you’re dealing with information that would only go to the judge. But I do want to just make one point about something that the government did do, which I do think is, I’m not going to say a fair point, but I think it’s a notable point, because they do in their filing say that they don’t see that why the court needs this information, and there’s what the answers would give the court that they are not conceding.
I have a quote I just wanted to give here. They do say the following on page seven and eight. Further, the government has not contested for the purposes of these proceedings, that’s sort of interesting language, but they haven’t contested for the purposes of these proceedings that the planes landed abroad and that the aliens on board were deplaned after the issuance of the court’s minute order. And then it says to have proceeded otherwise and turn planes around mid-air without regard to important logistical constraints, such as fuel ability or foreign airspace restrictions, would have been impractical. It doesn’t really answer once they landed and got fuel, if that was necessary, they didn’t turn around and go back.
So that is an important concession. And so it’ll be interesting to see whether Judge Boasberg sort of latches on to that because that does suggest to me that concession. To me, that sort of raises the issue of at that point, who made the decision that they were going to land and not turn around? Because at that point, they knew what’s the argument, because that’s a pretty big factual concession there.
Mary McCord: It is. I mean, he’s wanting to get more detail. And I think partly the more detail because they have a separate legal argument about what time the planes left U.S. airspace because they argue, and I think we talked about this last week, that once they left US airspace, as a matter of law, the judge could not order them to be turned around. So I think the judge is trying to get at the exact times for things like that and how many people were subject to his order so that he could say, potentially, regardless of your legal argument about U.S. airspace, which is a legal thing that he hasn’t addressed yet. He’s trying to find out were you even in violation before you left U.S. airspace. So we’ll see —
Andrew Weissmann: Can I ask you a question? Let’s assume he finds that there is contempt of his order. What do you think he could do as a sanction? Because I was thinking about this. If there’s contempt of an order, then the contempt is the fact that they were removed when he said don’t remove them, keep them in U.S. custody. And I think what he could do is he could say, bring them back. And I know they’d say, but we don’t have them anymore. But I’m not sure that’s true. I mean, the idea that these people are not in the possession, custody, or control, we have people who’ve been brought back.
Mary McCord: Although my understanding of those people is that they fell outside at least what the agreement with El Salvador was. So the agreement with El Salvador was not to take women, for example, or people who weren’t from Venezuela and I think El Salvador.
Andrew Weissmann: That’s fair. But I mean, let the government come back and say, we only had control over El Salvador to have them take them, but we don’t have any power to —
Mary McCord: To bring them back.
Andrew Weissmann: — cause them to bring them back. I mean —
Mary McCord: I think what the government will say is these are things the court can’t order. The court doesn’t have authority to order because these are just the same way they’ve argued. The court has no authority to order planes to turn around once they’ve left U.S. airspace because at this point, this is a matter of national security and foreign policy. But I want to talk more about this even when the time comes, but we probably should move on because we’ve been on this a long time. I will say there was two things in this state secrets privilege that I thought were, well, one was a snarky thing, as one was something else that we’re seeing everywhere. Before the government even got to making any argument about foreign policy or national security, it did what it’s doing in almost every case, it hammered the Trump v. United States immunity —
Andrew Weissmann: Yup.
Mary McCord: — ruling this summer because of its capacious language about executive authority. And basically is saying, judge, you got no business asking us questions about this because the president can do all of this well within his executive authority. And we are seeing this in case after case, every case. The snarky point is that when it got down to the argument you were just explaining that the government made about the judge not needing it, this is their snarky point. The court has already devoted more time to these inquiries than it did to evidence and argument on the issue of whether a class should be certified, meaning whether the case should apply to all of the alleged TDA members being deported or just the five plaintiffs. And it’s kind of like, do you have to throw that snarky thing in? Like when I was in government, you just didn’t do that. But with that, let us take a break —
Andrew Weissmann: Yeah.
Mary McCord: — and come back —
Andrew Weissmann: Absolutely.
Mary McCord: — and talk about other weird things in government.
Andrew Weissmann: Yeah. And for our listeners, here’s the teaser. If you think we’ve been triggered so far, stay tuned for this. And we’re about to talk about something which is classified information, top secret information that is being used on Signal, which is not a classified instrumentality, and it being disseminated to people who are not authorized to get it. And the thing that I’m going to ask you, Mary, this is what I want to know is, was the law broken? That’s the question when we come back.
(MUSIC PLAYING)
(ADVERTISEMENT)
(MUSIC PLAYING)
Andrew Weissmann: Well, as I think everyone knows, “The Atlantic” has a piece out from its executive editor, and he was included in a Signal chat in which he says, and as reported, and it appears to not be sort of credibly denied, that he was part of war plans, which he has not published.
Mary McCord: That’s right.
Andrew Weissmann: He has published snippets of what he was privy to. But he said because he was concerned it is in fact war plans and then it proved to be that that he doesn’t want lives to be in danger or military operations to be undermined. So he’s being responsible. But he’s reporting two things. One, he was party to it. And of course, he does not have top secret clearance and need to know that information. And two, it was happening over Signal and had the Secretary of Defense, it had the sitting Vice President and many other people. And Signal, to be clear, is a private application.
Mary McCord: Commercially available messaging app.
Andrew Weissmann: Yeah, it is not an authorized location for classified information. Now, my reaction to this was, I am not surprised, because we have a president who was accused and by all accounts, had violated something very similar because he actually was charged with having material when he was no longer president, he was not authorized to have, with the risk obviously being that it would be disseminated to even further people and it was classified information that he was not authorized to possess.
Mary McCord: And retaining it even when he was asked to return it.
Andrew Weissmann: Right. Right.
Mary McCord: Remember that piece, right? First asked by the archives, then asked through subpoena.
Andrew Weissmann: Repeatedly, over and over again.
Mary McCord: Right. Exactly.
Andrew Weissmann: And this is people who are authorized to have classified information, but are misusing it very similar to what Hillary Clinton was investigated for, but there was no prosecution for a variety of reasons determined by the Department of Justice and the FBI at the time. But here you have the use of top secret information on a non-classified instrumentality and multiple people in the government up to and including what is reported to be the sitting vice president without anyone apparently saying, we shouldn’t be doing this. Now, there were lots of reports in Trump one point zero of this kind of misuse of Signal.
I also know, Mary, that when I was in the government, there’s a requirement to be keeping documents and there are all sorts of retention laws as to what you can do with documents and what you can’t do with them. So there are all sorts of issues here about how do you retain documents on Signal for purposes of compliance with those kinds of laws? Are you violating the law with respect to classified information by disseminating it in a way that is not secure, including disseminating it to people who don’t have clearance or need to know? So many, many issues. It’s obviously just in terms of our national security. To me, it’s a piece like with Mar-a-Lago. But I have a real issue because I’m dealing with somebody who knows the law really well. Mary, do you think the law was broke, or if you were in the government, what would you want to know more about to make that decision?
Mary McCord: Yeah. So I want to go there. But I want to make sure people also understand that there are systems available to our highest level national security officials, including the Secretary of Defense, the Secretary of State, who was also on this chat, the National Security Advisor also on this chat. There are mechanisms for them to communicate securely through government approved and government created classified information systems, even on weekends, even at night, even after hours, 24/7.
Andrew Weissmann: There’s not a moment that you cannot communicate in a classified way. Certain people travel with comms equipment and people around them with comms equipment every single moment.
Mary McCord: Right. We talk a lot about this type of information should only be communicated in a SCIF, a Sensitive Compartmented Information Facility. My old office was a SCIF. At this high level of government, they have SCIFs that often are built into their own homes so that they can still manage that at home. There are classified information computer systems. So I had three, I had unclassified. I had up to the secret level. I had up to this top secret level. And guess what? There’s no way on a top secret level computer system it’s referred to as the sipper system. There’s no way you could inadvertently add a journalist because the only people who even have access to that system are people with the requisite level of clearance.
Andrew Weissmann: Right.
Mary McCord: Top secret and even higher than that.
Andrew Weissmann: Yeah.
Mary McCord: And then there’s also a special phone that you can use when you need to communicate top secret information. It’s a special phone. It’s not your regular phone. And then for people at the level that they were, they have a travel kit, like you said, a comms travel kit so that they have access to this. So the point is, it’s not like, oh, come on. This is no big deal. Signal is an end to end encrypted chat and it was after hours or on a weekend and wherever it was that they needed to be able to speak to each other and it wasn’t so bad. That is just not the case at all. Signal relies on the Internet, which is vulnerable to our adversaries being able to find a way in. Yes, it’s end-to-end encrypted, but that doesn’t mean it’s secure in the way that the U.S. government communication systems are secure. And you made the other point as well about the messages there are usually set at a different levels of disappearing.
Andrew Weissmann: One comment, the different computer systems do not speak to each other.
Mary McCord: No.
Andrew Weissmann: It’s not like you’re on one system and you know what, you could inadvertently have some of the top secret stuff suddenly appear in the unclassified. They’re entirely separate. You couldn’t even like download stuff —
Mary McCord: Nope.
Andrew Weissmann: — and somehow put it on to the other. And just to be clear, we know this is a problem because there was a reporter on this.
Mary McCord: Yeah.
Andrew Weissmann: Of course, that was inadvertent, but that is exactly the concern.
Mary McCord: Exactly. That could never happen if you were using the actual approved storage, and that’s what’s key here. National defense information, classified information has to be handled in a manner to protect it, and it has to be stored in places to protect it. And there are laws about this. And there is a law, it is the same section of the U.S. code as the offense for which Donald Trump was charged based on the mishandling of classified information at Mar-a-Lago. And this is subsection F, and it says that whoever has lawful possession, right, of any information relating to the national defense and through gross negligence permits the same, meaning that information, to be removed from its proper place of custody or delivered to anyone in violation of his trust or to be lost, stolen, abstracted, or destroyed, that is a felony and that is punishable up to 10 years.
Now there are a bunch of other things that this applies to, documents, writing, codes, books, tangible things that, right, would have a place of custody like in a SCIF, for example. But it also applies to information and the proper place for information is on the sipper system or communicated only over an approved phone system that is not via internet, right? That is made for the purpose of communicating classified information or in a SCIF. Like, those are the proper places of custody for information. So I think it’s important that people realize this isn’t just, oh, you know, they were in an emergency situation and they didn’t have access to any other means of communication. This was beyond sloppy, beyond careless. It was gross negligence.
And again, that is why there was a journalist receiving. In fact, he didn’t do anything intentional. He just was receiving it. And it’s only because he himself is concerned about national security that he did not go ahead and report on the pieces of the texts that actually really did reveal the plans related to this bombing in Yemen. And he wouldn’t have had to do that. There would have been no law broken if he had disseminated that because it’s something he was provided, which shows that the government was not being careful to protect this national defense information. Good on him not to do that. And any journalist that did anything else frankly would have been, I think, being unethical, but probably not in violation of law. So it’s a very serious matter.
And we know there’s a hearing going on as we speak where Tulsi Gabbard and John Ratcliffe who were on this Signal chat, are being questioned on Capitol Hill about what happened here. I understand maybe they’ve agreed to some sort of audit over this, but this is something that can’t be just brushed aside as unimportant.
Andrew Weissmann: Yeah. So I think there are legitimate questions as to everybody who is on the chat. I mean, there might be a scapegoat and I know that there’s a lot of press reporting about Pete Hegseth, the Secretary of Defense, but there were lots of people apparently on this, the same question applies to everybody. I do think we’re going to hear a couple things. One is it’s worth remembering what Donald Trump said about Hillary Clinton in a situation where she was using a private server, and he was saying, well, there was gross negligence and she should have been prosecuted. Well, I’m pretty sure we’re not going to hear that from him. But I do think a legitimate question that’s going to come up and we can talk about it as this scandal breaks, is the difference between the two —
Mary McCord: Yeah.
Andrew Weissmann: — because it’s worth noting. Here, this is an intentional use of Signal —
Mary McCord: Right.
Andrew Weissmann: — in the same way that she had an intentional use of a private server. The issue was that there, the biggest issue that that has been reported was that it was a minimal amount of information and it’s unclear she knew that it was actually classified because —
Mary McCord: Right.
Andrew Weissmann: — it was not marked.
Mary McCord: It wasn’t marked.
Andrew Weissmann: Almost all of it was not marked classified at the time and it was only buried in lots of material. So, here you have an intentional use of this non-classified setting. And you have, I would assume, intentional understanding by everyone there that this was top secret if you’re discussing war plans. That’s an issue about what did they know. And so, the standard only has to be gross negligence, but it may rise much, much higher given the facts here and how long this was going on and the nature of the discussions and why it wasn’t getting marked in and caught by any of the people on the call.
Mary McCord: So this, what you just said reminds me of people will recall, and I don’t know where this stands right now, but when Donald Trump first came into office, he said, basically, I can’t be bothered waiting for all of my White House officials to go through the security clearance process. So he gave everyone security clearances. Now, I don’t know if that also means that they did not get the briefings about how to protect classified information. Did they not get the briefings about what systems were approved and what weren’t? Did they not sign the NDAs, the nondisclosure agreements that tell you in great detail, because I signed many of these and so did you, all of the penalties that you would face if you inappropriately handled classified information.
That included administrative sanctions, losing your security clearance, losing your job. That included civil enforcement sanctions, and that included criminal penalties. It’s in such fine print on the back of the NDA. You need practically a magnifying glass to read it, but it’s there and you get briefed on this. So I do wonder a little bit. I’m not excusing it at all, but is that how cavalier this has been ever since they came into office that they just have never, you know, how many times has Signal been used? I guess that’s what I’m asking.
Andrew Weissmann: Right. Exactly. So this is one where Congress needs to be conducting oversight. But this is where, Mary, and I no longer say I’m shocked —
Mary McCord: I know.
Andrew Weissmann: — at any of this, but we’re talking about the Vice President of the United States, the head of the DNI, the head of the Department of Defense. We are not talking about low level people or contractors. And so this is going to be quite the story to follow. But I would like in our show notes, we’ll put the reference to the criminal statute that you cited, Mary, which is 18 USC 793 (f) as in Frank. I think it’s important for people to look at that and to be thinking about why is it that that is not being charged. And that’s going to tell you a lot about everything we’ve just been talking about, which is, is the rule of law applying in this country? And how is this administration going to be dealing with that when you have these kinds of criminal violations? Is it only if it’s Hillary Clinton that somebody should be prosecuted for 793 (f) because she’s a Democrat and was an opponent of Donald Trump? Now granted, by the way, I want to make it clear, there needs to be factual development, but I’m not sure —
Mary McCord: Right. I mean, Hegseth says —
Andrew Weissmann: — it’s going to be —
Mary McCord: — that’s not what it was, right, so.
Andrew Weissmann: Exactly. But is this going to be looked at? Because you and I know that this would be a huge deal in any other administration.
Mary McCord: Yes. So much more to come on that. And I will note, to the extent people are thinking, well, does that crime ever get charged? Yes, it does.
Andrew Weissmann: It does.
Mary McCord: Plenty lower level of people who have even mistakenly taken home or removed from their offices top secret marked things. If they did it in such a manner as to be gross negligence, they have faced those kind of prosecutions. So more to come on this, much more to come, but I think we’ve really had quite a morning.
Andrew Weissmann: We have had quite a morning and we’ve not gotten to what’s happening in the Khalil case. We will cover that next time because that is an ongoing matter. We have not covered what is happening with the universities.
Mary McCord: Which are very much under the same kind of pressure as law firms, right? And some of them, Columbia, capitulating, and that sends a bad message for the others.
Andrew Weissmann: Absolutely. There’s certainly going to be more with respect to law firms and that fallout. There’s obviously been a lot of brouhaha over Paul Weiss. So anyway, everyone, thank you so much 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.
Mary McCord: And to send us a question, you can leave us a voicemail at (917) 342-2934, or you can e-mail us @mainjusticequestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Ayesha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcasts and follow the series.