Andrew Weissmann: Outlandish and Outrageous

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Speaker 14 Hello, and welcome to the Board Podcast. I'm your host, Tim Miller.
Delighted to welcome back, professor of practice at NYU Law School.

Speaker 14 He was a lead prosecutor of Bob Miller's investigation of the Russia interference in the 2016 election, which actually did happen. And chief of the fraud section at the Department of Justice.

Speaker 14 He co-hosts the podcast main justice with mary mccord he's got a sub-stack called behind the headlines he's on a little bit of a sabbatical but not too much of one to you know take a break from hanging out with me it's andrew weissman hello how are you this is kind of like vacation being with me you know is that that's sort of true right really you know i uh you know that's like a straight line for me to say you know many people say it's work

Speaker 14 no you're absolutely right look it is always a pleasure back at you my friend We have a lot happening in the news.

Speaker 15 Yeah, there is.

Speaker 14 And plenty in the legal front. And I was like going through the outline.
And I don't want to make the entire podcast about immigration law, but we've got to do a lot of immigration law, unfortunately.

Speaker 14 I think it's the nature of our moment. But we have today, Governor of California, Gavin Newsome, the Attorney General Rob Bonta, have filing a lawsuit against the administration.

Speaker 14 There's a hearing today. They are suing to end the, what they call illegal and unnecessary takeover of the California National Guard unit.

Speaker 14 They argue the takeover violates the Constitution and exceeds the President's Title 10 authority. What do you make of that? Is there anything there?

Speaker 14 The Trump Justice Department says that's a political stunt. There's nothing to it.

Speaker 15 So, you know, I've been thinking about this and sort of the best way for people to understand

Speaker 15 what is going on. And I think

Speaker 15 I try and get my blood pressure down and discussing this.

Speaker 14 Ujai breath, really quick.

Speaker 15 Yeah, exactly. I think you have to look at this and you have to look at the the way that this administration invoked the Alien Enemies Act to deport people to El Salvador in the same context.

Speaker 15 And what I mean by that is

Speaker 15 in both situations, the administration takes a tiny kernel of a fact

Speaker 15 and blows it way out of proportion and says to the courts,

Speaker 15 you have to agree with our assessment of those facts that, and we are essentially torturing the English language to be able to do things that are absolutely authoritarian and contrary to law.

Speaker 15 So in the Alien Enemies Act, the idea that we're invaded

Speaker 15 by the TDA gang is not true. There are four federal courts that have said no way that is torturing the English language.
What is going on in LA is the same thing.

Speaker 15 People who participate in a demonstration where a small fraction of them do something illegal and participate in violence is not an invasion. It is not a rebellion.

Speaker 15 It is not an attempted or risk of rebellion. It is not a situation where law enforcement cannot do its job anymore.

Speaker 15 Just to be clear, the law to send those people in requires there to be an invasion, a rebellion, or the law enforcement can't be sent in. So there take some

Speaker 15 kernel of a problem, blow it completely out of proportion in order to have an authoritarian regime where people are denied their rights. It is

Speaker 15 so outlandish.

Speaker 15 And the courts, unfortunately, have developed law in the context of thinking about normal administrations where you don't have somebody acting, in my view, in complete bad faith in the way that they're assessing the facts.

Speaker 14 I guess my question then in this case is, all right.

Speaker 14 So let's say, you know, I'm actually not sure which court, which circuit is hearing the Newsom case today, I say one of the California ones, but assuming they agree with.

Speaker 15 It's San Francisco. Yep.

Speaker 14 Yeah. So assuming they agree with that assessment from you, like, then what?

Speaker 15 Like, is this

Speaker 14 like something that you can really get emergency remediation from, from the Supreme Court? Like, that's kind of hard to imagine for me, but maybe not. I don't know.

Speaker 15 Well, assuming the court agrees

Speaker 15 that this is not lawful, they can say that you can't have 4,000 National Guard troops there. It's a slightly different issue when you're sending in federal military.

Speaker 15 So the Marines is a different legal structure, but it would be relevant to the 4,000 people there.

Speaker 15 By the way, one thing, you know, since I'm discussing this as a lawyer, it is important to remember, just as a human being, talk about a complete overreaction to the situation.

Speaker 15 I mean, the reason that I think the law point I make, which is this is escalating something and torturing the English language to be authoritarian, is because of the obvious point, which is you do not need to send in 4,700 military people to deal with this situation.

Speaker 15 I mean, this is supposed to be de-escalating, not escalating. So it just tells you exactly what's going on.

Speaker 14 Well, they want it. I mean, the politics of it, I was reading a real clear politics article this morning where like they're on the record.

Speaker 14 It's not like TDS or MSNBC talk to be like, they want disorder.

Speaker 15 They say it.

Speaker 14 Trump says it. Like the MAGA advisors are like, this will be good for us in the midterms.

Speaker 14 They're not trying to quell the disorder they they are reveling in it you know i i do think about that the other side of this political coin though right is like okay

Speaker 14 regardless whether it's true on the law you get to a pretty concerning place if it's like okay some judge in san francisco says that the president of the united states can't call in national guard troops like i do think that that is a very dicey political situation right i mean it's something that you'd really have to take up to the Supreme Court, right?

Speaker 15 Yeah. No, look, it is the kind of thing that would go up and it would go up very quickly.

Speaker 15 But, you know, let me just give you an example of something where the courts, it's from a long time ago, but when

Speaker 15 President Truman tried to take over the steel mills and said, I need to do this because we need the steel for our military to fight in Korea, the Supreme Court said, no way.

Speaker 15 This is a civilian legal system and legal structure. And you are the commander in chief, but it is Congress's call as to whether they want to do that, not yours.

Speaker 15 And so it's so easy to understand that, but we're dealing in a situation where we don't have a Congress that's doing anything.

Speaker 15 So the president has just filled that vacuum because nature abhors a vacuum, or in this case, I would say Donald Trump abhors a vacuum.

Speaker 14 A couple other things what we've been seeing in LA, and we talked about this a little bit yesterday with Mark Hurtling, but we had a general talking to somebody that had a B average in undergrad and didn't go to law school.

Speaker 14 So I don't know if we gave the most coherent description of posse comitatus for our listeners. And so that is the kind of other element here, right? There's this question of can,

Speaker 14 you know, the either the Federalized National Guard troops or the Marines that are being sent in do law enforcement. Like, what are they allowed to do? What are the limitations?

Speaker 14 Of course, when you're a DOJ, it's something you're very familiar with. So, let's talk a little bit about that.

Speaker 15 Yeah, sure. I mean, you know, this doesn't come up a lot.

Speaker 15 I mean, this is kind of thing where you, you know, I was in DOJ for a long time, never came up because we don't have administrations like this.

Speaker 15 And I served under normal or, you know, Republican and Democratic administrations. It's not a political issue.

Speaker 14 I don't recall it coming up in Republican politics that there's a big anti-posse comitatus, like kind of wing of the party.

Speaker 14 People who are very excited to, you know, take the military and policify them, but here we are.

Speaker 15 yeah so the posse comitatus act is a statute by congress that unless an exception applies says that the military cannot operate domestically in our country to do law enforcement activities when

Speaker 15 president nixon called in the national guard to help deliver mail because there was a postal strike, that was allowed because it had nothing to do with law enforcement.

Speaker 15 Here, the argument is that they're not doing anything related to law enforcement. They're just protecting federal property.

Speaker 15 But the problem is it also has to be an invasion or rebellion or there has to be a complete failure of law enforcement to be able to carry out its functions. I don't see any of that as a prerequisite.

Speaker 15 Here's the big sort of elephant in the room is that at the end of the day, the way that the the president would get around this is he would invoke something called the Insurrection Act.

Speaker 14 And you've been seeing them throw around the word insurrection a couple of times. I think Stephen Miller said it.

Speaker 15 Absolutely. This is all a precursor to that.
And to your point, I mean, politically,

Speaker 15 you raise it in the immigration context. So it makes people who are again feel like, you know, if you oppose this, suddenly it means you're for illegal immigration.

Speaker 15 And this is one where, you know, you can keep two ideas in your head at the same time, which is you can agree that the law

Speaker 15 should not be violated and should adhere to the law. And at the same time, you can think if you're in the country illegally,

Speaker 15 you can be deported lawfully.

Speaker 15 But it is simply not the case that just because there's some people in the country here illegally, that you just then get to say, you know what, we get to violate the law and extracting them.

Speaker 15 This is why you had Judge Wilkinson in the Fourth Circuit, a really conservative but highly respected jurist, saying it doesn't work that way. You have to comply with the law.

Speaker 15 If you want these people to be removed, there is a lawful way to do that that gives them due process where you can respect the process.

Speaker 15 And I think this is, to your point, this is so deliberate to do this in a way that you, when you have people, you know, saying, oh, these pesky liberals who are worrying about the niceties of the law and they're doing it for people who are potentially in this country illegally.

Speaker 15 That's what it means to be a rule of law country.

Speaker 14 Yeah, right.

Speaker 14 There's one element of this LA thing that's really, well, and everywhere now, it's happening everywhere that is, it's getting under my skin. And I saw a legal angle on it on social media.

Speaker 14 It's maybe a little fanciful, but I just wanted to toss it by you.

Speaker 14 And that is like whether just, I forget the military side of this, like whether just the way that they're doing the immigration enforcement is also illegal. This is David Beer from Cato.

Speaker 14 He says that the Wall Street Journal is reporting on the conspiracy by the White House and ICE to violate the Constitution and conduct warrantless, suspicionless sweeps of Hispanic areas of the country.

Speaker 14 This is referring to that Wall Street Journal story that Stephen Miller is like, just go to Home Depot, just go to 7-Eleven, like stop. You know, we got to get more people deported.

Speaker 14 Beer says this is criminal behavior and that the state police need to start investigating these crimes. That feels a little bit like a fantasy, but

Speaker 14 it does feel illegal. I don't don't know.
I know that's not a technical law term, but right?

Speaker 14 I mean, like, it's one thing if they're saying, hey, we're going to this Home Depot because we have a deportation order for this one person that works there.

Speaker 14 And like, while we're there, you know, we're going to do sweeps. You know, okay, I don't know.

Speaker 14 I'm not for that, but that's one thing versus just like willy-nilly going to areas where you think that there are a lot of Hispanic workers.

Speaker 15 So the Equal Protection Clause is a potential claim that people have if you are choosing to target people based on what suspect classification, so race and nationality.

Speaker 15 The Fourth Amendment is a protection because everyone in this country has a protection about not being seized or searched without there being probable cause.

Speaker 15 So that's another protection.

Speaker 14 And that's true on immigration, right? Like is probable cause like somebody doesn't have their ID? Is that probable cause?

Speaker 15 You would have to have a basis for just knowing that they don't have their ID.

Speaker 15 I mean, just to be clear, though, you can go up to anybody, assuming you're not targeting them for an improper, unconstitutional purpose.

Speaker 15 You can go up to anyone and voluntarily ask them, you know, can I see your papers, etc. But, you know, the person doesn't have to respond.

Speaker 15 The law is very liberal, though, in terms of what law enforcement can do. But here's the real problem.

Speaker 15 is that in general, what we're seeing is the administration is not giving those people their day in court.

Speaker 15 So, all of these things where you're saying, oh, well, they might have a constitutional claim about, or I'm saying they might have a constitutional claim on the Equal Protection Clause, or they may have violated various immigration rules in doing this, or the Fourth Amendment in doing this.

Speaker 15 All of that presupposes that they're going to have an opportunity to be heard. The reason that you had the Supreme Court rule 9 to 0,

Speaker 15 not once, but twice,

Speaker 15 in this area, is because this administration has denied due process to the people who have been summarily extracted from this country without due process of law.

Speaker 15 So they don't have the opportunity to raise any of these claims.

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Speaker 14 That leads me to a couple other things I wanted to get you on.

Speaker 14 Just generally speaking, I'm going to get back to some of the immigration stuff, but overall, like the Trump Justice Department's failures, and I wonder what you think and when this might come to a head.

Speaker 14 I was asking before I had you on, our

Speaker 14 very capable lesbian in-house attorney for advice on what we should talk about. And she pointed me to a breakdown of the federal district court rulings from May.

Speaker 14 96% of them went against the administration. In April, it was 76%, 51 of 67.

Speaker 14 So, I mean, like, this is not precedented, really, like just how much they're being rebuked. But, okay, like, what is what are the implications of that level of failure?

Speaker 15 So first, you know, the administration says about that, see, look how unfair the courts are.

Speaker 15 And, you know, the other response to that is, no, when you have an administration that has never done so many things that are illegal, and the reason you know it is the latter and not the administration is you can look at the identity of the judges who are doing this.

Speaker 15 And the identity of the judges is across the board. It's not just Democratically appointed judges and nominated by Democrats.

Speaker 15 It's Republican, including judges appointed by Donald Trump. And so that's a huge issue.

Speaker 15 I think there's the other thing that I think gets not enough attention is that there's a lot of things that the Department of Justice is doing that is lawful. but outrageous.

Speaker 15 So, you know, we're talking about the things that are outrageous and unlawful.

Speaker 15 But as a friend of mine said, who's a Republican and a former white-collar prosecutor, he said, this is the golden age for being a white-collar criminal. It is just a shutdown of

Speaker 15 the, you know, public integrity section, the fraud section that I used to run at the Department of Justice.

Speaker 15 They just announced essentially that Foreign Corrupt Practices Act prosecutions are being destroyed.

Speaker 14 So for those of us who aren't familiar, like what is in the fraud section? What are some of the things that you are prosecuting that now we're not going to be looking into?

Speaker 15 So one of the really big cases that we did as I was leaving was the Volkswagen case.

Speaker 15 So Volkswagen had gamed the system and was selling cars as environmentally friendly when, in fact, they were anything but.

Speaker 15 They sort of figured out a way to turn on the environmentally friendly engine when it was being tested and then immediately it went off. I kind of remember that.
Yeah.

Speaker 15 And just, you know, people in Germany are now being prosecuted for it. People were prosecuted here.
The company paid a fortune here and pled guilty to a felony.

Speaker 15 And it was an unusual corporate crime because it was actually orchestrated from above. And sort of, and the way it sort of was discovered was that people below were like, you know what?

Speaker 15 We're not down with this. So that's one example.

Speaker 15 corporations that were like Enron, huge financial institutions engaged in various frauds that affect millions and millions of people across the country.

Speaker 14 Theranos, maybe? Is Theranos in the fraud section?

Speaker 15 Theranose was not in the fraud section, but let me give you just another example of crimes that the fraud section prosecuted in the healthcare unit. This is just one example.

Speaker 15 A doctor who falsely told his patients that they had cancer so that he could charge them for chemotherapy and then also wasn't actually even treating them for what was there.

Speaker 15 So not only did they go through, you know, chemotherapy is not a benign thing to go through. So they went through all of that.
They went through the psychic issue of that.

Speaker 15 Their family went through it all for grief. Oh my God.
And so that's sort of an outrageous crime on a small scale.

Speaker 15 And then there were crimes that you're huge corporate crimes that affect people monetarily, can affect the environment like Volkswagen. All of these are really, really important things.

Speaker 15 And

Speaker 15 this administration is saying essentially, if you're a rich white person,

Speaker 15 we're not really in the business of looking out for the crimes that you're committing.

Speaker 15 I basically spent 20 years of my life, I used to say, I was basically prosecuting sort of like corporate executives. And it's just hard to see that that's going to go on anymore.

Speaker 14 Well, it's because when they talk about law and order, they're not talking about that, right? Exactly.

Speaker 14 It's just like they Donald Trump doesn't see like corporate crime, theft, scams as crimes because he committed them like many times and has been,

Speaker 14 you know, whether it be Trump University that you know, he had a judgment against him on, or all of those, right?

Speaker 14 He did a multi-level marketing scheme, an MLM scheme he was involved in. National Review did a long report on that back in the day.
So,

Speaker 14 you know, I mean, I think that's like a big part of this.

Speaker 15 Yeah. I mean, let's

Speaker 15 not forget he is a convicted felon.

Speaker 15 I mean,

Speaker 15 if you have a white collar criminal in the White House,

Speaker 15 I'm not surprised by the fact that he doesn't want to go after white collar crime.

Speaker 15 It's just, you remember on day one that Pam Bondi started as the Attorney General, she issued, it's a lawful thing to do, but she issued a memorandum basically gutting

Speaker 15 all of these areas that are so important for holding people to account and also equal justice. It should not be because you're rich that the or white,

Speaker 15 can correlate, that you suddenly are immune from criminal investigation.

Speaker 14 Yeah, I don't know. I immediately get my political hat on, you know, and I want to think like there has to be a populist angle for the Democrats here, just like listening to you talk about this.

Speaker 14 It's like these, you know, like these guys claim that they're for the forgotten man and they're going after the elites and going after the deep state, but it's like the opposite.

Speaker 15 You could go through the pardons and talk about the sort of the nature, the number of people who are pardoned who engaged in, you know, grift.

Speaker 15 And it's like, why are those people getting pardoned when you have a lot of small fry, if you were going to try and do this in an even-handed way, who don't have the, you know, the wherewithal to have influence with the people deciding who's going to get presented for a pardon to the president.

Speaker 14 Yeah. And I just think that, like, I don't know.

Speaker 14 I'm trying to cast this person in a movie, but like, the Democrats need like a character who, you know, sounds like a working man with a southern accent to start being like,

Speaker 14 they're letting all the fucking fat cats get away with everything. And they need a Huey Long, honestly.

Speaker 14 Like, that's not really my kind of politics, but like somebody that can like get this through to people, that it is the people that are screwing over regular folks that are being let off scot-free right now, left and right.

Speaker 14 And to this point, my buddy texted me yesterday about one of the U.S. attorney's offices.
And I want to kind of just get your take on this without getting into the details.

Speaker 14 It's my understanding this is happening everywhere, but that essentially at one of the U.S. attorney's offices, it's not in a border state.

Speaker 14 They're still redirecting resources essentially entirely to immigration issues.

Speaker 14 And that that they have people coming in from DC that are focused on that and the folks that are working on stuff at, you know, out in these various

Speaker 14 regional offices, maybe not all of them, but a good proportion of them are being pushed to focus their energies and resources on immigration. And is that your kind of understanding?

Speaker 14 And how does that just talk to us about how that works like from being inside DOJ?

Speaker 15 Sure. And this is an example of elections have consequences.
I mean, there's nothing, just to be put it in context of our broader conversation, there's nothing unlawful about it.

Speaker 15 It's just a question of: is it something that, as you're listening to this and your viewers are watching, are they sitting there going, hey, this is a good idea?

Speaker 15 So, a U.S. Attorney's Office is usually, that's at a federal level.
They're not that big. Even the largest are not that big.
I worked in the U.S. Attorney's Office in the Eastern District of New York.

Speaker 15 That's sort of Brooklyn and Queens. It's part of the New York sort of offices.
And that was about 100 or so criminal prosecutors. That's really big for a U.S.
attorney's office.

Speaker 15 If you suddenly take people and say, okay, 30 of you are now being moved.

Speaker 15 So the other things that are being looked at are organized crime, gang prosecutions, gangs that are sort of emerging gangs that prey on lawful immigrant groups that come to New York that are now, I mean, that's sort of traditionally how gangs start.

Speaker 15 You have white-collar crime that we've talked about, and suddenly you're pulling resources from that, all sorts of economic crime.

Speaker 15 And so, and then you have terrorism, you know, and that I think this administration is acting as if there is no domestic or foreign terrorism threat. And

Speaker 15 that is just so foolhardy to think that. And so you are pulling those resources.
And that's why the sort of a rational discussion would is about

Speaker 15 what is the cost of doing this.

Speaker 15 And so that is where it just doesn't make a lot of sense to me that you would be doing that when you have limited federal resources and there's so much that really has to be done at the federal level to prosecute these kinds of cases we're talking about.

Speaker 14 No, you got to hit your quote of with Stephen Miller. You don't want Herr Harrow Miller getting mad at you.

Speaker 14 Just as like a process, I'm trying to understand how this works and like how much independence everybody has.

Speaker 14 So when you were at the Eastern District of New York, like, do you, you talk to the Deputy Attorney General and are like, here's the kind of cases we're prioritizing?

Speaker 14 Are they, how would Todd Blanche or whoever would be the point person at DOJ influence this?

Speaker 15 You know, that is one where,

Speaker 15 as a matter of sort of what can DOJ in fact do, DOJ, in fact, can instruct and tell the local offices exactly what they have to do and how they're going to allocate

Speaker 15 within congressional bounds. But they actually have that power.
It's just that in most administrations, it is exercised only around the edges. There's an enormous amount of deference to the U.S.

Speaker 15 Attorney for a whole variety of reasons, but usually because the U.S. Attorney was selected by a sitting senator who gets proposed to the president, and then the U.S.

Speaker 15 Attorney is actually nominated by the president. So they have some independent clout.

Speaker 15 And so, usually, the attorney general and the deputy attorney general sort of are careful before they step on those toes.

Speaker 15 But, you know, Pam Bondi and Todd Blanche can just reach in and say, do this and don't do that.

Speaker 15 We saw that in the Eric Adams case, where they basically pulled the case eventually from the Southern District of New York and moved it to DC.

Speaker 15 And they directed them as to exactly what they were going to do, including saying that you're going to move to dismiss the case without prejudice.

Speaker 15 And you saw what happened, which is people both in the field in the southern district of New York and people in public integrity resigned over it, which is completely abnormal.

Speaker 15 It's just, you know, that is something the only time we've seen that in any recent time is in Trump 1.0. Yeah.

Speaker 14 Meanwhile, Andrew, Eric Adams might end up being your best option for mayor for mayor in your city up there. We'll see how it shakes out.
You got the Beret guy as a Republican. Who knows?

Speaker 14 The Democratic field is

Speaker 15 Cuomo leading.

Speaker 15 Yeah, I can't really

Speaker 15 political things, but I just, I know. I just, there are, in fact, better options.

Speaker 14 There are, in fact, better options than the Beret man and Eric Adams and Andrew Cuomo.

Speaker 15 Yes. We'll see.

Speaker 14 TBD on that. I know that's a bold statement.
We'll see how your wise fellow citizens vote here.

Speaker 15 Yeah. What I'm saying, there are better options.
I'm not sure they're polling all that well, but I'm just saying there are better options.

Speaker 14 I might as well tease it now. I have a little interview with Zoron, who is not, who's on the far left for me coming up.

Speaker 14 Maybe we might have a bonus pod for people this weekend, so keep an eye out for that.

Speaker 14 It's quite the field that you've got there. It feels welcoming for me now that I've, you know, whatever, left the Republican Party and more aligned on the other side.

Speaker 14 My favorite Republican was always the one finishing in last in the primaries and all of these things because I always liked the moderate squish. And now I just am living the same experience.

Speaker 14 My favorite Democratic person in the mayor's primary has 2%.

Speaker 14 So, you know, it's just the people and I are not aligned, unfortunately.

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Speaker 14 What else do I have for you?

Speaker 15 All right. Comey,

Speaker 14 when I come here and I asked you about this, I also want your take.

Speaker 14 I'm obsessed with this because, again, it's something that having not been in any of these agencies, I don't really understand how it works, like the process works, but the DHS is just spending way more than they have been allocated.

Speaker 14 And Christine Noam.

Speaker 14 And Chris Murphy really put it to Christine Noam on this the other day. And I want to play that for you and just kind of get your thoughts on it.

Speaker 26 I say this with seriousness and respect, but your department is out of control. You are spending like you don't have a budget.
You're on the verge of running out of money for the fiscal year.

Speaker 26 You are illegally refusing to spend funds that have been authorized by this Congress and appropriated by this committee.

Speaker 26 You are ignoring the immigration laws of this Nation, implementing a brand new immigration system that you have invented that has little relation to the statutes that you are required, that you are commanded to follow as spelled out in your oath of office.

Speaker 26 You are routinely violating the rights of immigrants who may not be citizens, but whether you like it or not, they have constitutional and statutory rights when they reside in the United States.

Speaker 14 We have covered the second half of that quite a bit, but on the first half,

Speaker 14 really strong there from Chris Murphy. But on the first half, I guess if Congress doesn't care, they can just spend what they want, but where are they getting the money from?

Speaker 14 I just, I don't understand how it's working.

Speaker 15 Yeah. So, I mean, this is, you know, the Supreme Court case that I was sort of alluding to involving Truman,

Speaker 15 the famous concurrence by Justice Jackson, where they uphold congressional authority. He ends it by saying, you know, we can do this for Congress, but, you know, it's yours to implement.

Speaker 15 Like if you, Congress, don't sort of have the backbone to do what you need to do, this is all for naught. And you know, I think that's what we're seeing.

Speaker 15 And so as much as the senator did a great job, you know, he's not in the majority. And so

Speaker 15 in terms of actually having enough money, I mean,

Speaker 15 presumably they will run out of money, but they could get it in a reoff. If they were to take it from something that was not allocated to them, again, that can be against the law.

Speaker 15 But I think a lot of people sort of watching this are going to be like, yeah, and who's going to do anything about it? You know, remember, we started with the TikTok ban.

Speaker 14 Yeah, who would have standing to even do anything?

Speaker 15 Congress. Right.
Congress. That's right.
I mean, the TikTok ban was how this started, where the TikTok ban was imposed by Congress. It went to the Supreme Court.
The Supreme Court says it is lawful.

Speaker 15 And then Donald Trump says, yeah, we're not implementing it.

Speaker 15 And Pam Bondi issues a letter to tech companies saying, don't worry about putting them on your platforms because essentially we're not going to prosecute it.

Speaker 15 And so when you start that way, this is sending a message of what are you going to do about it.

Speaker 14 Has this created any doubts for you in the American Constitutional Republic? Because I just look at this and it's like,

Speaker 14 we never had, like, never had considered really before, and I guess besides treatment of black folks, but like outside of that, never really considered before the notion that

Speaker 14 maybe Congress would just decide not to do anything and that the administration could just do whatever they want and that there isn't really a remedy for it.

Speaker 14 Like that, like that option hadn't really crossed my mind.

Speaker 15 The one thing that Donald Trump has clearly shown is that our checks and balances are

Speaker 15 clearly not sufficient? I mean, that if you have somebody who is pure id working, you know,

Speaker 15 homage to my psychologist's mother, you know, somebody who doesn't have this sort of external controls,

Speaker 15 that, you know, you're counting on Congress, you're counting on the courts.

Speaker 15 And, you know, ultimately, though, you have to, we've sort of learned you have to count on the American people caring enough they're going to do something about it because these sort of institutional checks and balances have a lot of flaws.

Speaker 15 And obviously, we talked a little bit about the pardon power, but that is a way to completely gut the legal system, at least at the federal level.

Speaker 14 Psychologist mother, that's just starting to explain things. I'm starting, the picture is starting to come into,

Speaker 14 you know, the full picture is starting to

Speaker 14 come into focus for me.

Speaker 15 That's pure nerd. Yeah.

Speaker 14 Some of my colleagues at the Borg met my mother at the Denver Live show. They're like, oh,

Speaker 14 now I get it.

Speaker 15 That makes sense now.

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Speaker 14 Rapid five through a couple of these other immigration things because we spent too much time on it. But just really quick, the ice covering faces, not identifying themselves.

Speaker 15 Okay, so I really try not to curse. Okay,

Speaker 15 the closest I'm going to get, but it's not really what I'm thinking, is what the hell.

Speaker 15 I mean, just to be clear,

Speaker 15 that

Speaker 15 is so unit so outrageous. This is not COVID.
The only reason to do that is to to both scare people and to not be able to be held to account so that you have sort of this anonymity.

Speaker 15 And I think it also has this effect, again, to channel sort of psychology.

Speaker 15 Once you do that, I think it sort of in some ways liberates you to act worse, to act with impunity, because you're sort of covered. Right.

Speaker 15 And so it is unbelievable that there aren't people like bosses. This is where, you know, this is where you want adults in the room to be like, that's not happening.

Speaker 15 And what we've seen in this administration, there are no adults in the room.

Speaker 14 Yeah. And from a prosecutor's perspective, you also have to be like, wait a minute, this is going to create issues, right? Like, as far as

Speaker 14 people having rights. I know we've seen some of these arrests.
Like, these people are not getting their Miranda rights read to them. They're not even admitting that they're cops half the time.

Speaker 15 Yeah, I mean, that's obviously if they're not read your Miranda rights, that's one thing.

Speaker 15 But wearing the mask is something that is, you know, there's no constitutional right to be arrested by somebody who's not wearing a mask.

Speaker 14 So maybe we should have thought about that.

Speaker 15 Yeah, but it's the thing. Don't worry on that, Madison.

Speaker 15 But again, this just goes to the idea that is this what you want? Is this what you voted for? That you want these people work for us, not vice versa. And that's what's just so outrageous about this.

Speaker 14 I think sadly it is what people voted for. Obviously, I can't not mention the case regarding Andre Hernés Romero.

Speaker 14 Federal Judge Bozberg ruled last Wednesday this group of Venezuelans must be provided a legal avenue to contest the administration's accusations they're gang members.

Speaker 14 I appreciate that Bozberg described the process of these removals as being akin to a scene from the Kafka novel, The Trial,

Speaker 14 which is a good read if people haven't checked that out since college. Again, I don't know what the remediation is for these folks, but it's maybe kind of good.

Speaker 15 No?

Speaker 15 It is good.

Speaker 15 You know, we just had our podcast on this, Justice, and I have to say, I'm a little exasperated. I mean,

Speaker 15 it's a 60-plus-page decision that,

Speaker 15 yes, it does say they can be a class action, but the heart of it is something that I think American citizens are like, wait a second.

Speaker 15 You said these people have due process rights and they're entitled to,

Speaker 15 you have to do something government to facilitate their release and they have a right to be heard and to be heard in court. That was already said by the Supreme Court, not once, but twice.

Speaker 15 I was just like, Judge Bozemberg, can we move on?

Speaker 15 I mean, it just read to me like you need to just get to the point where the government either is going to agree to the court order or not and just have a function. And how do you get to that point?

Speaker 15 You have to actually just say, We're doing it. And I think what he ended up saying is, okay, I'm going to turn to the government and say, what are you proposing?

Speaker 15 That could have been done as soon as the Supreme Court said for the first time that their due process rights were violated. Or maybe it could have been done right after the second time.

Speaker 15 And the reason I'm being, you're hearing this exasperation, and I have enormous respect for Judge Bozberg, is these people are still in a Godforsaken foreign prison where they were put in violation of due process.

Speaker 15 That is not me saying that. That's the Supreme Court 920.

Speaker 15 So these people's rights are currently being violated. There should be some sense of urgency about remedying it.

Speaker 14 It's not crazy to say their life is in danger. I mean, talk about urgency.

Speaker 15 These seems prison.

Speaker 14 We don't have proof of life for Andre and some of these people.

Speaker 15 I mean, can you just think about this? Let's assume that there is one person there who they put there by mistake.

Speaker 15 And we know that's already true with respect to Abrego Garcia, that he was not supposed to have been taken in violation of a court order. So that means like that person is denied their day in court.

Speaker 15 The reason for the exasperation on my part is

Speaker 15 it's hard to imagine if these were

Speaker 15 people with clout politically in a different economic and racial composition, that there would be the tolerance for the amount of delay that has gone on while they're stuck in a prison.

Speaker 14 Amen to that. Okay, last, last.
I lied, one more last immigration one, because we just have to head up with regards to Makmou Khalil. District Judge Michael Farbiars.
Farbiars, there we go.

Speaker 14 Said he could not be removed or detained based on Rubio's determination. The government has till tomorrow morning at this time, at the time of our taping right now, to appeal.

Speaker 14 I saw some folks saying they expect Khalil out in the next week. Where are you at on the Khalil saga?

Speaker 15 You know, we'll see. I mean, I could see them just appealing it on that.
I mean, we'll see. The district judge did sort of give the government time to potentially appeal to the third circuit.

Speaker 15 I'm not really sure

Speaker 15 why they wouldn't do that. The only cases I know where they really haven't appealed is in the law firm cases where I think they've gotten everything they want.
So there's no reason for them to appeal.

Speaker 14 My one piece of good news that I keep trying to bring up when discussing all these immigration cases is with regards to Khalil and Ozur.

Speaker 14 So in both the kind of whatever you want to call the bucket of State Department deciding you're a bad student and we can detain you bucket, and the DHS deciding you're a gang member based on your tattoos and we can send you to a foreign gulag bucket.

Speaker 14 And there's no reason reason to believe that they had planned on stopping where they stopped, right?

Speaker 14 Like the Khalil and Oz Turk and this group, including Andre and others that were sent to Venezuela, like that was the plan.

Speaker 14 Like they were planning on sending more people to El Salvador and they're planning on taking more student leaders and they haven't yet.

Speaker 14 Doesn't mean that they can't start again between now and when this taping comes out, but it does feel like a win for both the legal and political pushback on this that

Speaker 15 kind of we're still talking about this that same initial tranche of cases small green small silver lining there no i'd say small silver lining because it hasn't on those things it hasn't gotten appreciably worse

Speaker 15 but you know there there's an endless array of outrage to go forward i mean the la piece is just the beginning i i you know this is a point that i'm not the first to make which is i want to make sure everyone understands that president's directive was not targeted to LA.

Speaker 15 It applies to any place in the country.

Speaker 15 And so, you know, the number one sort of issue that I've been hearing from people about is

Speaker 15 if we participate in a peaceful protest on Saturday or some other time, and

Speaker 15 one person is violent or somebody, even somebody foments it to create a ruse,

Speaker 15 are we all going to get locked up? Is the military going to suddenly be brought in around the country? And, you know, the idea that that's what we're talking about is that kind of,

Speaker 15 that kind of

Speaker 15 chilling effect on the First Amendment is,

Speaker 15 I mean, it's hard for me to do the optimistic ending.

Speaker 14 Okay, way to just take my silver lining and just like throw it in the trash compactor and turn on the,

Speaker 14 like, we're shredding it.

Speaker 15 I'm basically going to like, what planet are you on?

Speaker 14 Okay, great. It's fine.

Speaker 14 It is in the spirit of the Borg podcast. A listener and fan gave me a button at the Nashville event that said it gets worse before it gets worse, which I liked.

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Speaker 14 You might not have anything on this, but every time I have a lawyer on, I'm like, because I can't follow this. Is there anything on the Doge cases, like all the firings of federal officials?

Speaker 14 Has there been any progress on any of that? Or is that all just jimmying its way through the courts?

Speaker 15 It is going its way through the courts, but that is, again, just to give you bad news. I mean, it's pretty clear the Supreme Court is going to overrule this case called Humphreys Executor.

Speaker 15 It sounds really nerdy, but it's not, because what it means is that the executive, the White House will have more power to get rid of people and to have more political operatives in government

Speaker 15 and have fewer independent bodies. And that's like the last thing we need.

Speaker 14 Two other random items just for you that are just kind of in what I would call the Andrew Wassman remit.

Speaker 14 The FBI director Cash Patel filed a lawsuit in Texas, if you saw this, against an MSNBC colleague of ours, Frank Flagluzzi.

Speaker 14 Patel is suing him for, quote, fabricating a specific lie about him in response to Flagluzzi saying that he's been more visible at nightclubs than on the seventh floor of the the Hoover building.

Speaker 14 I guess Patel is saying he's not been to a nightclub. So

Speaker 14 that's the basis of the lawsuit. I don't know.
The free speech absolutists, pretty alarming that the FBI director allowed on his plate, would be suing a pundit.

Speaker 14 So I don't know.

Speaker 14 On the other hand, sorry to Frank, but I guess I'd probably rather him be spending his time on stupid shit like this and going to hockey games than the most nefarious things he could be doing.

Speaker 14 But I don't know. What, do you have any thoughts on that, this lawsuit?

Speaker 15 So, yeah, I had not seen that, but this is what I would say, having been in government.

Speaker 15 You know, you go into government, you develop a thick skin. You're going to be criticized by people.

Speaker 14 Were you criticized at all at the Mueller, during the Mueller investigation?

Speaker 15 Yeah. Weren't you? Yeah.

Speaker 14 Any non-factual critiques of you from anyone across the entire

Speaker 14 punditocracy?

Speaker 15 I guess it might. Let's see.
Who can I think of who might have done that? Well, yeah, wait, the president.

Speaker 15 So, you know, like I've been called scum a really bad guy steve miller called me a degenerate and a moron and

Speaker 15 here's the thing when you're in government you develop a thick skin and you know you're going to get batted around on all sorts of different sides and that's why the mantra is just sort of like you keep your head down and you you have to just be trying to do the right thing all the time.

Speaker 15 And if you get called on it, that's your defense. It's like, that's what you're trying to do.
So it's just such poor form

Speaker 15 and you know i think the biggest concern i have is the chilling effect of bringing things like that again there's no adult in the room i won't ask you about that but it seems like what you're saying is that cash patel is a thin-skinned beta cuck i think that would be the technical term for it but uh i'm not going to put that into your mouth you're going to you're going to be like a what is it a co-defendant of franks

Speaker 14 now i don't think that there's any factual test i think that's true that can be objected to there i guess he could Maybe he could, maybe he's taking a test.

Speaker 14 I wouldn't put it past somebody like Cash, a little guy like that, to have taken a test that proves that he's an alpha.

Speaker 14 Maybe he's taken like a testosterone test and that he can bring to the court and say, this is not true. That I was defamed by a podcaster who said I was low T, but I had a doctor show that I'm high T.

Speaker 15 That's possible.

Speaker 14 Are you thinking about that at all when you're popping off these days?

Speaker 14 Are you feeling chilled? I'm not because

Speaker 15 my view is, I mean, I think it is more important than ever to be speaking out. And, you know, this is going to sound a little, you know, soapboxy and Pollyannish,

Speaker 15 but you and I are privileged to be able to do this.

Speaker 15 And I think the reason that like a lot of people come up to me to thank me, but I think what they're really thinking is like somebody, we're allowed to voice something that they're thinking and thinking they're alone.

Speaker 15 And so, you know, I just think that is incumbent. And obviously, we have to be, you should be careful about what you say, but that's, that was, that's always true.

Speaker 14 So I agree with this. No, I don't, they're trying to, and everybody's just more sensitive now.

Speaker 14 Like, there's just stuff I hear about stuff that I hadn't heard about, you know, like, well, is this thing exactly right?

Speaker 14 You know, like when you're using figures of speech, or I'm not going to be bullied by these little guys. If he wants to go to the Texas, I'm in Louisiana.

Speaker 14 I don't know if the Louisiana district will be as favorable to him. You'd think there's some free speech judges out there that are like, you know, I think that we can have a little little bit

Speaker 14 still in this country as of right now, as of June 12th, you can call the FBI director low-tee without worry that you're going to be jailed. So that's something that I can do and will do.

Speaker 15 Let's just remember when you're a public, you know, a public figure, and obviously the FBI director is, I mean, really, he thinks that Frank or anybody, you have to be willing to show actual malice.

Speaker 15 And there are all sorts of things.

Speaker 14 He knew for a fact he'd never been to a nightclub. He'd seen his whole calendar.
He knew that he'd never been there. And then he met right like that.

Speaker 14 And it would have to be like that level of knowledge. But we've seen

Speaker 14 other guys fold. I mean, that was true in some of these other cases with the media folks, which I don't want to get into.
Okay. Fun, final topic, which is in the Andrew Wisen remit.

Speaker 14 I assume you're a musical person.

Speaker 14 I know you're opera. Do you do musicals as well?

Speaker 15 You know,

Speaker 15 I'm more concerts than opera.

Speaker 15 But I do, since I'm a New Yorker, I go to the theater a lot, and that's like

Speaker 15 straight plays, musicals, everything.

Speaker 14 All of it.

Speaker 14 okay longtime listeners of the pod would know that i'm not a musical gay it's the one it's the one part of gay culture i just am a total zero on yesterday uh the president and vice president went to see a musical at the kennedy center and um wait there was

Speaker 15 they went to see as i understood it lay miserable yeah right i don't know what that is do you know what that's about i don't do you know what that's about i don't which is the point of where i'm going so stick with it hold on for one second

Speaker 14 i don't know what it's about about. And here's why.
And I want to demonstrate to you. JD Vance sent a tweet about his attendance.
And he wrote this.

Speaker 14 About to see Les Miserable is how you pronounce it, according to Andrew. About to see Les Miserable with POTUS at the Kennedy Center.
Me to Usha. So what's this about? A barber who kills people?

Speaker 14 Question mark. Usha, hysterical laughter.

Speaker 14 There are a couple of issues with this tweet for me because

Speaker 14 I don't understand what's funny about it because I don't know what happens in Les Miserable.

Speaker 14 And I assume maybe there was a Barbara. I don't know.
I don't know what's in the movie.

Speaker 14 And my colleague Sonny Bunch points out that this is the kind of thing that you put out if you do know what happened in Les Miserable, actually, but you are too embarrassed to admit that you're into Fancy Boy plays.

Speaker 14 And it seems like J.D. Vance is doing that.
He's pretending that he doesn't know because

Speaker 14 I literally don't understand the joke. So I'm hoping you can explain it to me.

Speaker 15 I can. And it is true that

Speaker 15 I agree with your colleague who says that he's doing this because he does does know, but it's not for the reason that you're suggesting.

Speaker 15 So one, is it about a barber who kills people?

Speaker 15 That's based on the Stephen Sondheim musical, Sweeney Todd, which was about Sweeney Todd was a barber who killed people and then they got chopped up and put into.

Speaker 14 So J.D. Vance wanted to prove that he didn't know about musicals by referencing an even lesser known niche musical that I'd never heard of.

Speaker 15 Okay,

Speaker 15 can I just say never repeat that again? Because it is like an incredibly good Steven Sondheim. Do you know who Steven Sondheim is?

Speaker 14 I've heard the name Stephen Sondheim.

Speaker 15 I know that he's a person that exists.

Speaker 14 If you said the category in Jeopardy was Stephen Sondheim plays, and then the first question was name one, I would have been unable to do that.

Speaker 15 That's right now. I could do Steve Sweeney Todd, I guess.
So, okay, for all of the people who are watching this who are shocked beyond belief, the OG is now all right. Okay,

Speaker 15 we're going to have to do a little remedial help.

Speaker 15 Okay,

Speaker 15 So that's he was referencing Stephen Santam's Sweeney Todd, which, by the way, they got chopped up and they got put into meat pies and then people ate them.

Speaker 15 So it was a cannibalism musical.

Speaker 15 Okay, that's kind of thought. But the reason he was doing this is Les Miserable

Speaker 15 is about the French Revolution. It's about the people rising up against a king who is an authoritarian.

Speaker 15 So the idea that you have him, you have tanks going through Washington, D.C. in a military parade on Saturday.

Speaker 15 He has 4,700 military people being called in, you know, let's take a bazooka to go after a fly in LA, and he's issuing all these orders and he's going off to see Lehman's Rabba is,

Speaker 15 I mean,

Speaker 15 you know, this, what do you say? Irony is now or satire is now dead.

Speaker 14 I mean, Trump is a theater queen, so he knows, like, does he not understand? Does he think that the, again, I don't know the plot, so maybe I'm missing it.

Speaker 14 Does he not, does he think maybe the people that get overthrown are the heroes? Does he think the king is a hero?

Speaker 15 The king doesn't come off well in lame as a rabble because you know what happens? But could he be confused? Could Trump be confused? You know what happens in the French Revolution to the king?

Speaker 15 Let's just say

Speaker 15 his head and the rest of him are separated.

Speaker 14 So maybe Trump doesn't maybe doesn't identify with the king and thinks he's a nicer person. I don't, I don't know.
What do you think is going through his little head?

Speaker 14 What are the little flies buzzing around up there?

Speaker 15 Does this make America have the guillotine again?

Speaker 14 I'm not going to say what I would have thought about that because I don't want Cash Patel coming after me. The guillotine.
That's something to look into, I would say. I don't know.
I'm open.

Speaker 14 It's kind of similar to my thoughts about Sikot and El Salvador. It's something that I'm against until I start thinking about sending Marco there.
And then all of a sudden, I'm like, huh.

Speaker 15 You have a future in this administration.

Speaker 14 No, Andrew Weissman, that's the meanest thing.

Speaker 14 I kept you too long. You're on holiday.
But it was enjoyable. It was kind of like a vacation.
I was circling on to the beginning. You had fun.

Speaker 15 I did. I thanked you.

Speaker 14 All right. Well, thanks, brother.
Enjoy the vacation. There'll be a lot of legal issues upcoming.
So I'm sure we'll be having you back soon.

Speaker 15 Okay. Take care.

Speaker 14 Everybody else, we'll be back here for another edition of the Bulwark podcast tomorrow with one of your faves. We'll see you all then.
Peace.

Speaker 14 the dead.

Speaker 14 Have a roll,

Speaker 14 head and roll.

Speaker 14 Have a roll on the floor.

Speaker 14 Bled her on the wet streets.

Speaker 14 Sell them over everything.

Speaker 14 The river's all wet.

Speaker 14 You're all cool.

Speaker 14 Dripping like alchemy.

Speaker 14 Shouldn't stop the shimmering. ring.

Speaker 14 The blend is all the way.

Speaker 14 You're all crumbling.

Speaker 14 The man cried out, the girls cried out, the man cried out, the girls cried out, the man cried out.

Speaker 14 Oh no.

Speaker 14 The man cried out, the girls cried out, the man cried out, the girls cried out, the man cried out.

Speaker 14 Oh no.

Speaker 14 Oh.

Speaker 14 I'm off with you.

Speaker 14 Dance, dance together.

Speaker 14 Heaven,

Speaker 14 heavy wall,

Speaker 14 heavy wall, I'm gone.

Speaker 14 The Bullard Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.

Speaker 15 She'd throw things, wander, and started hoarding.

Speaker 27 Mom's Alzheimer's was already so hard. But then we found out she had something called agitation that may happen with dementia due to Alzheimer's disease.
And that was a different kind of difficult.

Speaker 27 So we asked her doctor for more help.

Speaker 28 Seeing symptoms like these in a loved one, it could be time to ask their doctor about Rexulti, Rexpiprazole 2 milligrams, the only FDA-approved treatment proven to reduce the symptoms of this condition.

Speaker 28 Rexulti should not be used as an as-needed treatment.

Speaker 28 Elderly people with dementia-related psychosis have increased risk of death or stroke, report fever, stiff muscles, and confusion, which can be life-threatening, or uncontrolled muscle movements, which may be permanent.

Speaker 28 High blood sugar can lead to coma or death. Weight gain, increased cholesterol, unusual urges, dizziness on standing, falls, seizures, trouble swallowing, or sleepiness may occur.

Speaker 28 Learn more about these and other side effects at Rexulte.com. Tap ad for PI.

Speaker 27 I'm glad her doctor recommended Rick Sulti.

Speaker 28 Talk to your loved ones, doctor. Moments matter.

Speaker 29 Ah, greetings for my bath, festive friends.

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