Checks and Balances
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Hi, welcome back to Maine Justice. We're back to Tuesday mornings, Mary. We are. It's Tuesday morning, June 3rd. I'm Andrew Weissman, and I spoiled the punchline. That's Mary McCord.

Surprise! Everyone will be shocked that I'm on this podcast with you. Yeah, it's only been two years. A little more, a little more. I know, it's two years and counting. And we're still friends. It's an amazing thing. Well... I'm just joking. It's easy to be podcast co-host with you, Andrew. It is. The easiest thing in the world. Actually, what I think I have to say is that, as we've talked about, it keeps us both sane. So I actually love what we're going to do today. We're going to do something that's not

totally ripped from the headlines that we've been meaning to do. Mary, what is on our dance card? And it's not like any of these are sleeper issues, but we will start with something that has been in the headlines. But I think we're going to be talking about it in a way that mostly has not been what's

been in the headlines, and that is to talk about the two different decisions on Trump's tariffs, one out of the Court of International Trade, one out of a federal district court here in Washington, D.C. We'll talk about sort of the legal basis for these decisions because there's been so much conversation about the economic impact and how the world trade is going to be affected, etc., etc.,

and far less about what was the legal basis for these rulings. Then we will talk, and this is something that, you know, for us, I think is really important because of the work we've done as prosecutors throughout our careers,

We'll talk about the pardons. And we're not talking about the pardons of the January 6th attackers. We talked plenty about that. This is the slew of pardons that we've been seeing over these last few weeks that are kind of hard to chart a path through, except that there seems to be transactional activity when it comes to the pardons. Yeah. I wish people could see Andrew's face. You would see agreement and with, you know, that kind of like

questioning in his forehead. And then we will talk about some reporting about what's happening within the FBI. And I think there has been a real lack of transparency about what's happening in the FBI. And so we'll, at least based on some good reporting by The New York Times and others, we will talk a little bit about that. And then we'll round up a few things that we are watching that have been happening in the Supreme Court and elsewhere.

If we have time, if we have time. So, Mary, let's start with the tariffs. As you mentioned, the first of the cases to drop in the sense that the first case that came out was out of the United States Court of International Trade.

And that has to be one which I think even for practitioners, and I have to say, I even had to remind myself, even though I've had occasion to deal with them, I had to remind myself, like, what is it? Yeah. What's their jurisdiction? Exactly. Are they Article III judges? Yes, they are. So they're Article III judges. Like a lot of courts, it was created by Congress. It is dealing with, guess what? International trade.

And so there's an interesting issue here because in the decision, they say, you know, they have exclusive jurisdiction over things like tariffs. Now, when we get to the second case, which dropped the very next day, which was a district judge, District Judge Contreras out of D.C., your home base, Mary, the natural question, which I will spoiler alert, is how is it that he had jurisdiction in

if exclusive jurisdiction for something like tariffs is in the Court of Interest Trades. So stay tuned because we will answer that. The other thing that I learned, which I didn't know, was why there was a panel of trial judges of three because normally at the trial level, it's just one judge

And then if you appeal it, the appellate court is a panel of three. But here it turns out in the Court of International Trade, the chief judge has discretion on an important matter to have the panel of three decide it.

So there is this sort of random panel of three that was selected. It's Judge Katzmann, Judge Reif. I'm not sure I'm pronouncing it. I think that's right. And that is the Trump appointee, I believe, correct? He is. But there's something I also learned about that. So there's Judge Katzmann, Judge Reif and Judge Rustani. And so one of the things that's interesting is that there is sort of a

politics in the construction of the court, of the Court of Industrial Trade, because there can't be more than five of the nine judges appointed by one party. And so even though Judge Reif was appointed by Donald Trump, he is a Democrat. In other words, he fell into that category of

They ran out of slots. But obviously, he was a selection and he had to, you know, he chose him. And just to be clear, even if you were playing politics in this and thought, you know, remember, it was 3-0. All three judges. And one of the judges was a Reagan appointee. So you have a Reagan appointee. I think it's an Obama appointee and a Trump appointee. But it's 3-0. But now that's all sort of the background of like why you have this particular court doing it. Right.

who the judges are. It's sort of a very interesting, specialized court. You're right that it is a limited jurisdiction court. And that's what's so interesting, I think, about these two decisions, because the law that provides for the Court of International Trade to have exclusive jurisdiction says that the Court of International Trade has exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers that arises exclusively

This is the key phrase out of any law of the United States that provides for and then it has a list of things.

The pertinent one being tariffs, duties, fees or other taxes on the importation of merchandise for reasons other than the raising of revenue. OK, so the key word I said there is any law. What the Court of International Trade held is that because the challenge executive orders invoke. Now, remember, now I should back up just a little bit myself. The tariffs we're talking about here were imposed by executive order by the president himself.

under supposedly under the authority of IEPA, the International Economic Emergencies Powers Act. That is a national security authority given to the president by Congress that does not specifically provide for any type of tariffs or taxes or anything like that with respect to international trade. It does allow the president

president when there is a national emergency of, you know, an extraordinary threat to national security to impose certain economic sanctions on other countries and to do some regulation. And that becomes

important when we start to talk about who has exclusive jurisdiction. Doing some regulation over, well, the words are investigate, block during the pendency of an investigation, regulate, direct, compel, nullify, void, prohibit, many, many other verbs I won't get into, transactions involving any property in which any foreign country or national thereof has any interest.

Right. So that's IEPA. So what the Court of International Trade held is that because the executive orders invoke IEPA to impose tariffs on merchandise from both specific countries and a list that includes all trading partners, this is a presidential act.

action that imposes tariffs, and that means it arises from a law providing from those measures. In other words, they focused on the presidential action instead of the law, AIPA. Right. And Judge Kutcheris, there you go. No, no, no, no, no. He basically says he says it's the merits are the same as the jurisdictional argument, because he said, let's look at the law right here. And just because you governments say this law is

provides for regulating tariffs. That's what you say. But if I find that it does not, then I'm not going to strip myself of jurisdiction on the ground that tariff laws can only be heard by the Court of International Trade, because if he concludes that this law doesn't provide and allow these kinds of tariffs, which, by the way, spoiler alert, is what he ended up saying. Yeah.

He goes, then I have jurisdiction. As did the Court of International Trade, right? Right. So it's sort of very interesting. This is sort of funny because I'm sure most of our listeners are like, we're like totally getting off on this jurisdictional point because it's so interesting because you have two courts and you have one saying we have exclusive jurisdiction and you have another saying.

where Judge Contreras is, and they're sort of looking at different things, but this is why you can have Judge Contreras saying, no, no, no, because I find that this law that you're relying on does not provide for

for permitting these kinds of tariffs in this situation, then you can't say it strips me of jurisdiction. One of the things he says, just to be clear, is there's a difference between a law that allows regulating, right, and a law that allows tariffs. And this law, AIPA,

does not provide for tariffs. Regulation is not the same as tariffs. And moreover, IEPA has never, ever, ever in history, he said, has an IEPA case been handled by the Court of International Trade. And that's in part because never, ever, ever in the history of IEPA has it been used by a president to impose tariffs.

So, yes, jurisdiction. And that's one where just because Trump has done this for the first time, you know, that's not the sin here. I mean, you know what? Being innovative or testing a law, that's not the issue. But here you do have two separate courts, both district courts in the sense that you have three judges in one and one judge in another. So you have four district court judges unanimously saying, no go. There are no dissents here.

That's right. Before we go to the merits, I think people are like, well, how will we resolve this question? Right. So this Court of International Trade, the appeals go to the U.S. Court of Appeals for the Federal Circuit. It's this one that's separate from all of the first through 11th circuits. The appeal from Judge Contreras in the District Court for D.C. goes to the D.C. Circuit. So both of those appellate courts will have to

deal with this issue. Who's got jurisdiction? And in fact, one of the appellate courts has actually sort of temporarily stayed. That is, the federal circuit has said we're putting on hold the lower court decision temporarily. They asked for briefing to say that they're going to hear that.

So the ruling of the district court is not in effect right now. And then there is that same request for a stay that is pending. I'm expecting a decision at any minute. It could be even as we talk. Well, actually, they called for a response by June 4th. What's today? The 3rd? So tomorrow. Yeah. So at least it won't be while we record. Right. Yeah.

Mary, shall we get to the merits? Yes. Like what was the problem here? We've had a big buildup, but... I know, but I have to say the procedural things are really interesting. And important. And important. But the main issue, I just want to maybe frame it because it's easy to get very much into the weeds

is big picture. This is not about unelected judges. This isn't about the courts sort of usurping some role. This is about congressional authority. Both decisions, it's like a lesson and a primer on constitutional law. And I do feel like, you know, this is like we're probably now in our podcast. We might even be in third year of law school. But like this is like what they're saying.

The Constitution of the United States gives the authority to impose tariffs to Congress. That's right. So this is explicit in the Constitution. So you might, I'm sure people are saying, well, if that's... Article 1, Section 8, Clause 1. You can look it up. Love it. And so many people say, well, if that's true, then what's going on here? How can the president do it? And the reason is...

that there's a certain amount that Congress can delegate to the executive branch. And so that's why, Mary, when you were saying IEPA, that's the delegation. And the issue is how much you can delegate and under what circumstances. And everyone agrees, I think even the Supreme Court would agree,

It cannot be limitless. It can't just be, hey, you do my job. There have to be standards. There has to be findings. There has to be procedure. Otherwise, it's a violation of the Constitution because the Constitution has checks and balances. And there's certain things that just cannot be delegated. In other words...

As much as we're living through a time when it feels like Congress has given all of its power to the executive or isn't using it, the courts are saying, you may want that to be the case, but we have a constitution here. And so what they're trying to do is figure that out, this separation of powers. And so I do think the big picture of this is,

That's right.

People will hear lawyers talk about this and both cases talk a little bit about this, the non-delegation doctrine, this idea that one branch of Congress cannot delegate away all of its power. And so if Congress is going to delegate something to the president, it has to lay down by legislative act an intelligible principle to which the person or body authorized to fix something.

in this case, tariff rates, is directed to conform. In other words, if you're going to give the president some power, you've got to have principles that bind it. And in fact, there are other statutes by which Congress has delegated some tariff powers to the president. And that is one of the reasons that the Court of International Trade concludes that the president's exercise of authority

over these sort of worldwide retaliatory tariffs was in excess of the delegations under IEPA because they say there are other statutes that do give some power and they constrain him. And so it could not be that Congress intended to just have those laws have no meaning by letting him do anything he wants under IEPA. So he has gone beyond because there are other statutes that directly apply here. His authority is not unbounded

under IEPA that the court concludes, the Court of International Trade concludes with respect to those worldwide and retaliatory tariffs. They also look sort of separately at the tariffs that were imposed on Canada and Mexico and China, supposedly in response to this emergency that has to do with drug trafficking and human trafficking and cartels and that kind of thing, and ended up concluding there that

Even if IEPA could be used to address that type of emergency, IEPA says that the measures taken under IEPA must deal with the emergency. And there's no suggestion here that these tariffs actually deal with the drug trafficking and human trafficking emergency. These are just pressure points to try to use leverage against those countries to get them to take actions that

our president wants them to take. And I thought that was really interesting because in many ways, some listeners might say, well, imposing tariffs is a way to deal with the problem because obviously if you impose

impose heightened tariffs, it's going to incentivize the country to do something that you want because they want to get out of the tariffs. Let's leave aside that the fentanyl issue may be very, very, very real with respect to China. Yes. Absolutely. The precursor chemical issue is a real one. It is.

But the idea that that would be used for Canada is, let's just say, not so much. That's right. But I thought this idea of deal with was interesting because it is something that there is a connective tissue. But the court says if you use the English sense of it, the English language sense, which is deal with, which is we're just going to put more pressure on, that's not a limit. Under that theory, you can do anything that would pressure somebody and

And so it's not providing that constraint in any way that is necessary. It'll be interesting to see, I think, on appeal the arguments on that particular issue. Mary, should we take a quick break and then maybe come back and talk just briefly about Judge Contreras? Because he has a slightly different rationale for what he did. And then move on to our pardon issue. Absolutely. Absolutely.

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Welcome back. Mary, Judge Contreras, the district judge in D.C., one day later, a day after the Court of International Trade, what was his basic rationale? Yeah, I mean, it was quite similar. He essentially ended up saying that the president's actions, because IEPA itself, as we alluded to when we talked about the jurisdictional question, does not provide for

for the assessment of tariffs at all by the president, then his executive orders were ultra-virus, meaning outside law and have to be enjoined. And he says, I don't have to get to issues like whether Congress delegated too much, right, in violation of the non-delegation doctrine or principles of non-delegation because—

because just as a matter of the statute and the text of AIPA, it doesn't give him this authority. Therefore, not only did I have jurisdiction, right, to make that ruling, but he, the president, did not have authority to issue tariffs. Full stop. The end. Exactly. The key phrase, the court agrees with plaintiffs that the power to regulate is not the power to tax. As Chief Justice Marshall put it in an early leading case, quote, the power to

the power to regulate commerce is entirely distinct from the right to levy taxes and imposts, unquote. So that, you know, obviously a great site. Well,

We'll see whether this when this gets to the Supreme Court, what they do with Chief Justice Marshall. By the way, that's going back to our founding. That is not that is a good Marshall. That is the earlier Marshall. One last point on this is one other big difference between Judge Contreras' opinion. In that case, it was brought by two companies and his ruling applies only to those two companies.

The Court of International Trade ruling was more back on this idea of universal injunction. They're saying these tariffs are enjoined, period, everywhere across the country. Yeah. And I love the fact that the lead plaintiff, by the way, is a wine importer, which is sort of dear to my heart. Yes, of course. I'm with you.

So I did a little data on this, which is we are not going to go back over the January 6th pardons on day one. But I just wanted to give people a sense of the numbers here, which is by far Donald Trump has issued, if you look at pardons and commutations, and I'll discuss in a second what the difference is, by far,

If you add up the first and second term, he has issued more pardons and commutations than any other president. Pardons are sort of getting rid of the whole case, the whole criminal case. Obviously, it doesn't apply to civil cases. It doesn't apply to state cases. A commutation can be where you've served your two years, but you were supposed to serve eight years and your sentence is commuted.

So it doesn't get rid of the guilty finding or the sentence you've done, but it commutes the sentence. The only person who comes close to that is, and I thought it was a useful framing for the discussion, is President Obama, who issued a number of commutations.

And the reason I think it's useful is because that was based on a change in the law and the sentencing guidelines related to drug calculations, where people likely would have received a very, very different sentence had they been sentenced under the current law. And so he set up an entire robust process with a lot of requirements in.

in order to receive that clemency. You had to have served a certain amount of time. You had to have had good conduct. You had needed to not have significant criminal history. You had to be a nonviolent person. And all of that went through the pardon attorney. It all went through DOJ processes. There was a lot of procedure and process to make sure that people were being treated equally and fairly with clear standards.

And so when you look at the numbers of commutations, President Obama has a lot more commutations, but under this process. What President Trump has is what, as you said, appears to be, I'm not going to say all. No. Because that's certainly not the case. But it seems like a lot of these cases are without any process at all. Obviously, the huge group is the January 6th cases.

But, you know, I can relate it to my prior life working on the Mueller investigation. Paul Manafort, Michael Flynn, Roger Stone, George Papadopoulos, all pardoned. Indeed, almost everybody who did not cooperate but was convicted was pardoned. Yep. So, yes, to all that. And, you know, I lived those Obama pardons at the end of his term when—

I remember the deputy attorney general, Sally Yates, going home every day with a whole stack of folders from the pardon attorneys to go over case by case the many people who were serving really, really long sentences for drug crimes, nonviolent drug crimes.

that under the former sentencings before Congress sort of relaxed these a little bit and the sentencing guidelines were getting really in some ways draconian sentences. And so a lot of care put into those. What we're seeing here seems to be in multiple different categories,

There are sort of the white collar criminals who it seems like Trump is pardoning with this theory that they were unfairly prosecuted. Sometimes they were the victims of a weaponized system. And sometimes it's celebrities. Sometimes it's former government officials. People may be familiar with the Chrisleys. They apparently had some sort of reality TV show and they were convicted of

Of fraud. You're not watching that, Mary? I'm not personally familiar. You're not a reality...

You struck me as a reality TV person. I'm sure that that's shocking to know that I don't watch that or didn't watch that. But they were convicted of bilking banks out of tens of millions of dollars in 2022. They got sentences of 12 years for Todd Chrisley and seven years for his wife after a jury found them guilty of fraud and tax evasion and conspiracy to defraud.

But, you know, they have now been pardoned. Now, notably, I believe one of their children, one of their daughters, an adult,

had been very involved in sort of lobbying the president and people in the president's orbit for this pardon. Yep. And so the other is, to your point that, you know, the claim is that some of these people may have been the victims of weaponization. It's important to remember with respect to the Chrisleys, just let's take that example. One, the case was brought by a Trump-appointed U.S. attorney. Two, the case was appendicitis

held by the 11th Circuit on appeal. Three, the accountant who was convicted along with them is still there, like his conviction stands. So if you really thought this was just weaponization, one, it was your own U.S. attorney, but two, what about the other person who is clearly a lesser player

And this seems like all of those facts, let's just say they are, just put it in the terms of what we used to do, it's evidentiary of something else is going on here unrelated to the merits and would support the idea that this is transactional. Obviously, there are lots of other examples of people who have given money to Donald Trump or

Or people in their families, right? Yes. The money is either coming directly or indirectly and going to, not directly to Trump, but to Trump-related things like institutions or PACs.

And so that is the phenomenon that is like, I mean, unfortunately, the pardon power is so capacious. That's right. That all there really needs to be is some sort of arguable good faith reason. But this is why any normal administration, Republican or Democrat, has processes in place. But just I just want to make one point about to be fair. We have seen abuses of the pardon power in other administrations, Democratic administrations.

and Republican. And many people would point to Joe Biden as an example of that. And certainly... The administration currently is definitely pointing to Joe Biden, so that he basically changed the waterfront in pardons when he pardoned his son, and then pardoned his family. That's right. But there's no suggestion that it's random and higgledy-piggledy based on money that's being given. Yes.

But Bill Clinton is, there's a real concern about Mark Rich. That's right. And what was done there. This is, you know, as steeped in, as a law-abiding citizen, as somebody who is in the Justice Department, as a

As a defense lawyer, where I'm concerned about fairness and so that your client is being treated the same as anyone else. And will have a fair shot. And it wouldn't feel that way to someone who does not have the connections or the financial wherewithal to be able to get to the White House. It would feel like they're just stuck. And to be really fancy in my thinking, two wrongs don't make a right. Right.

Yeah. What kind of principle is that? Before we move on, I just want to, you know, one thing, I want to take us back to the immunity decision, right? Because you're right, and the Supreme Court has reiterated it last summer, that the pardon power, it is exclusive to the president. It is right there in the Constitution, and it is capacious. And there's this very interesting issue where this is like, welcome to being law professors, which is if you had a bribe for a pardon,

There's an argument that the pardon would still be effective, but the bribe could be prosecuted, both the person paying it and the person receiving it, which seems like, you know, crazy. But I just want to just also point out, I don't want people to think that what we're saying is that Donald Trump has used them in any way consonant with Bill Clinton or Joe Biden.

Here's just a rough list of some political corruption cases where people have been pardoned or received commutations. John Rowland, the Connecticut governor, Rob Blok-Goyevich for selling a Senate seat, Chris Collins, a Republican member of Congress, Duncan Hunter, another member of Congress, Randy Duke Cunningham, Brian Kelsey. All of those are political corruption cases, and there are more. White Collar, you

You know, so many, I already talked about many cases from the Mueller investigation, Bernie Kerik, Mike Milken, Ellie Weinstein, the Chrisleys that you mentioned, Trevor Milton, Maude Zabary, apologies if I'm mispronouncing it. And then Paul, is it Walziak, whose mother allegedly gave lots of money just before the pardon was issued. And then there are a lot of violent criminals who've also been pardoned.

This is so interesting to me. Like the head of a major drug trafficking ring. Exactly. He was convicted not only of trafficking offenses, but murders, right? Yeah, exactly. Larry Hoover. Crazy. In Chicago, the gangster disciples. Now, apparently the artist who now goes by Ye, who used to be known as Kanye West, apparently this was a big deal to him that Mr. Hoover be pardoned.

But it seems fairly inconsistent with the president's purported wanting to crack down on drug trafficking, right? I mean, he's invoking drug trafficking as a reason for tariffs. And just to continue the sort of hypocrisy, there are major health care, I'm going to use the term criminals because they were convicted,

But major health care convictions that were overturned in the first and second terms of Donald Trump, one is Philippus Formas in Florida. That was a fraud section case that was done with the Miami U.S. Attorney's Office. Major fraud. I mean, that's supposed to be a big priority for Donald Trump is health care fraud. And so and again, that's the same thing that is happening today.

in this term, so there's a real inconsistency. And the reason, Mary, you and I wanted to talk about this is

This guts the justice system. If you have a president who's saying, we're only going to prosecute people who are disfavored and enemies, and we're going to use the pardon power to get our friends out, or as Ed Martin, who is now the new pardon attorney, has said in discussing this, his quote, which is from a tweet, is, "'No bagger left behind.'"

That is the quiet part out loud. I mean, that is shamelessness. Yep. And I believe that was with respect to the pardon of a former sheriff in Culpeper County, Virginia, who had been convicted of accepting over $75,000 in bribes in return for appointing a bunch of Virginia businessmen as auxiliary deputy sheriffs. Brought

bribes, cash payments and payments toward his election campaign. He was just sentenced in March by the Trump Justice Department to 10 years in prison with a press release by the Trump Justice Department. Now, his prosecution would have occurred before that, but he was sentenced.

During the Trump administration, only two months ago, and already has been pardoned with the comments by Ed Martin, the newly appointed pardon attorney, saying no MAGA left behind, and Trump saying that this former sheriff had been, quote, dragged through hell by a corrupt and weaponized organization.

unquote, Justice Department during the Biden administration. Interestingly, when his own Justice Department then went in and advocated for this sentence. Exactly. And this is Scott Jenkins is the name of the defendant who received that pardon. Another example of sort of public corruption. I mean, you sort of have to sit there and say, gee, what is Trump getting at where he's aiming pardons at public corruption? Those are cases that, Mary, you and I, when we were in the Justice Department,

had special significance. It's like crimes involving civil rights crimes where they so undermine sort of who we are as a people and our trust in government. And so that's where those public officials should be held to a higher standard, not a lower standard. We want to have faith that our government works for us and not...

just engages in self-interest. Exactly. And it shouldn't be like if you're a Republican who engaged in crime, you're going to be out scot-free. But there's a lot of that that is going on. And we really wanted to take time out to focus everyone's attention on what is happening. It is a prime example of lawlessness. We've talked about it in so many other contexts. We've talked so much about what's going on in the immigration context.

And that with the court saying, what's violation of due process? What is a violation of a statute? But this is core also. And even though it can be lawful to issue a pardon, it doesn't mean that this is good policy and that this is not leading to lawlessness in the way that if you tell people, you know, no MAGA left behind, what is the message to politicians?

And people who think, you know what, I can I have a get out of jail free card and it just requires a certain amount of money or a certain affiliation with a certain party. Yeah. And, you know, that's a perfect transition to our break in our next topic, because as we talk about changes in the FBI, the reporting that is recent has said that in recent weeks, the FBI disbanded the Washington field office's elite federal public corruption squad.

which was best known for investigating Mr. Trump's efforts to overturn the 2020 election, among other sensitive inquiries involving prominent government officials. That is reporting by New York Times reporter Adam Goldman. And we will come back to that after the break.

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Welcome back. Well, as we were just ending the last segment, talking about some of the moves, let's say, and changes within the FBI, one goes directly to the point you were making about pardons, Andrew, which is taking emphasis away from public corruption. That's just one of the changes within the FBI. And that fits really well, I think, with things that we talked about several episodes ago regarding changes made within the department itself.

the Department of Justice. Absolutely. And this is one where I want to make sure people understand that this may fit very well in the idea of elections have consequences, but it doesn't mean that the policies you have to agree with. And so if you're getting rid of one of the

leading public corruption squads, it's right to ask why? Like, for what? What is the other priority? Now, it is fair. You could imagine someone going, well, our priority is going to be fentanyl. I mean, by the way, good luck telling me this is like that you're doing more than Ann Milgram, who is the head of the DEA and how much they did on fentanyl. But yes, if you're going to focus on the fentanyl problem, great. If that's where you think resources are

But it's hard to view the article about getting rid of this group not in conjunction with our last conversation about pardons for people who engaged in public corruption. Like, I mean, Rob Bulgojevich, I mean, selling a Senate seat is what he was not only accused of but convicted of. And by the way, many of the people who got pardons didn't go to trial. They pled guilty. They said it out of their own mouth. Right.

And so I wanted to focus on one thing that I thought in this article that was in the New York Times that you were referring to with Adam Goldman, which I thought was sort of interesting, which was it was reported that many of the people who were being asked to sort of leave or step down or be reassigned were senior women. Female agents. That's right. So.

Obviously, I was at the FBI as the general counsel. There are wonderful, wonderful female agents and female analysts and obviously female lawyers that I worked with. But in terms of proportion, it is striking compared to like the U.S. Attorney's Office, the dearth of women in leadership. It was something that when I was there working for Robert Mueller, he was very focused on that.

Because for him, and by the way, he was a Republican, DEI and diversity was something that was important and was not a bad word. And I just want to make sure people understand it is also critical to the mission and the success to have a diverse workforce, particularly in law enforcement, where some of this is making sure that you can talk to communities, that they have trust,

And so there's a whole variety of reasons. But I thought that was an indication of this sort of anti-DEI that we're seeing outside of the world writ large, at least reportedly having an effect in the Bureau. And that is not a place where...

let's just say white men don't really have a problem in being represented. I can attest to that as well, having worked with the Bureau for decades. Yes. Mary, can I tell you one quick anecdote? When I got to the Bureau the first time and I called a friend of mine who is an Asian American woman and I said, wow, it's pretty, like, it's a little surprising. You show up at a meeting and it's a lot of white shirts and white men

And Sheila said, Andrew, in Washington, you are the diversity. Right. Yeah. Oh, gosh. That's pretty resonant. And I think there's another important point about this, which is a couple of things I think are happening. There are these ultimatums and the reporting is that a number of these senior female agents were given an ultimatum, take a different post or be asked to retire.

So if you retire because you've been, you know, suggested that you go to take some position you're not interested in taking. An example here was a senior agent who had been in charge of intelligence at the L.A., Los Angeles field office, was asked to relocate to a Huntsville, Alabama office where she would take on fewer responsibilities or she could retire. Right. This is also a way to avoid doing an actual firing. Right.

and to sort of avoid getting more review. Now, review of firings in the FBI is already highly circumscribed. And I think that's something that people- Yeah, tell people about that. Yeah, this is a really interesting thing. Mary, turn it over. Why is the FBI different

than sort of your normal DOJ attorney. Because remember, the FBI is part of the Department of Justice, but different rules. That's right. The FBI, like other parts of the intelligence and national security community, are exempt from the Civil Service Reform Act. That's the law that allows for protections for federal employees

from being fired without cause, without having committed some misconduct. And also it provides an adjudicative procedure for even if you are accused of misconduct or something like that, that would be cause for firing. But FBI, as well as many in the intelligence community, are exempt from that. So they cannot, if they're fired,

go and file a claim under the CSRA or take that appeal up to the MSPB, the Merit Systems Protection Board, there are some internal procedures.

all within the FBI to appeal a firing or even just any discipline, but it's all internal to the FBI. And one thing I was reading yesterday is the inspector general's report from just a couple of years ago, looking at discipline within the FBI and finding that there are these procedures...

And there are various ways these procedures should be appealed, even though, again, they're still limited to the FBI. So if at the end of the day, the director, things go to the director and the director says, nope, this person's out, you're still out and you can't appeal this anywhere with one little caveat I'll come back to. But one of the things the inspector general pointed out was

A large number of the firings are these summary firings that are not provided for in the procedures at all, the internal procedures. So there's no criteria for when there can be a summary dismissal. People who've been summarily dismissed have been told there is no appeal even under the internal procedures.

And one of the things that the inspector general recommended is that if you're going to have a summary dismissal, then you need to say what people can be summarily dismissed for and what process they have to contest that. Because right now, you can imagine the misuse of that, because even if you have a bunch of internal procedures, if there's this thing, a summary dismissal, which apparently originated in a 1996 or 1997 memo from former director Louis Freeh,

and isn't otherwise memorialized anywhere other than a newsletter from a few years ago that referred to Louis Freeh's memo, nobody even knows that they could be subject to that summary dismissal. So why do I say all this? I say all this because that means a whole lot of stuff can go on within the Bureau by a director and deputy director who wants to kind of clean house, first of all, without really the public knowing and without giving these people a real chance to make decisions

arguments about why the discipline against them is unfounded. The caveat, the asterisk is constitutional claims. Right. Right. So when I was thinking about the ultimatums given to these women, like, do they even know that it's happening to others to be in a position to think, hey,

This might actually be an unconstitutional, you know, equal protection violation that we could actually make a case on. And I'm not saying there is or there isn't.

But by doing it in this way, it's even hard for the, I'm going to call them victims, the victims of these ultimatums to be able to pull a case together to know whether they have a potential constitutional claim. I will say that is a big issue just in general in employment law is that an individual person doesn't know that they're actually part of a class, that this is a procedure. I absolutely agree with you. There's a couple of things. One is, you know, Kash Patel during his confirmation hearing

you know, I know everyone's going, Andrew, well, that's that and a token are going to get you on the New York subway. Actually, even with a token, you're not even going to get on the New York subway anymore. But I mean, he said that he's going to adhere to the FBI internal policies. And so he's not going to, he said, I'm not going to be removing or doing something that's against FBI policy. So

At his confirmation hearing, the senators were quite aware of this issue, or at least some of them, so that they were focused on this.

So he had said he was going to adhere to it. But Mary, your point is that some of it is a little loosey-goosey in terms of how it's done. And the other issue here is something that we have seen writ large, which is that a lot of this gets rid of institutional knowledge. That's right. And you're getting rid of the people who are going to actually be instrumental in getting your adjudication

agenda accomplished. So some people might be thinking, well, that's great. But no, because the people who are doing this could make all sorts of mistakes and violate the law and violate rights if they don't have a really good sense of what is the way to get it done. And also some of these cases you really want to have done well, such as

The case that we're going to make mention of, which is the sort of homegrown terrorist case happened, where you want to make sure that that is handled rapidly and well. That's right. And that's where the history matters. And then final and last point on this is

We're seeing, and we talked about it, I think just last week, the Wilcox case and this whole idea of when can the president sort of get rid of people and whether he's going to ultimately be saying, you know what, I don't even have to comply with the civil service rules. But with the FBI, the people who are being affected don't even get to that point because they aren't protected by the civil service rules so that the administration doesn't have to win anything.

that argument as well in order to be able to take action. So they're in a much more precarious position. And these are people who, unlike a lot of people in the department, these are career people who are doing this for their whole lives. And they've been doing it for 10, 20, 30 years. When I got to the Bureau and

talking to my lawyers there, they had been there for so much longer than people in the U.S. Attorney's Office. This is what they do for a living, is very patriotic and give their life to public service. And, you know, they're not making what they would make in the private sector out as a sense of patriotism. And it's really not a great way, let's just put it

put it mildly, in terms of how you treat them. Yeah. And the institutional memory is so important here because, you know, initially when Trump came into office, you know, a lot of the assistant directors over places, important areas of the bureau, I think pretty much bureau-wide were removed. And so we're talking about also like in national security,

the counterterrorism and counterintelligence experts, not only do they have the institutional experience and they know, you know, what has happened over 20 years in terms of

terrorism, both international and domestically, and also, you know, what our adversaries are doing in the intelligence area, right? Who's spying on us and how they're spying on us and what their interests are and what their techniques are, all of that institutional memory. They also have the contacts, right? These are the people who've been working in the field for decades. So they know everyone, of course, within our government, the intelligence community, the State Department, et cetera, the Department of Defense.

But also they know they're, you know, similarly situated people in governments of our allies. And they have those relationships. So if they need to call upon somebody in one of the five eyes or five, you know, closest partners on national security, they know exactly who to call. You bring in people with just a couple of years of experience or maybe who've never done kind of terrorism work.

Not only do they not have that experience, they don't have those relationships. They've got nothing to draw on. Exactly. And that happens in the criminal context and the national security context as well. That's probably like a really good segue to the Boulder case where there has been a criminal complaint.

But as you know, that is one where there are just so many issues that crop up in terms of trying to determine what law governs. It's complicated when you've got a national security matter. Is there a connection to a foreign terrorist organization or are they inspired by a foreign terrorist organization? What kind of warrant you can get, whether it's criminal authorities or national security authorities?

All of that is the kind of thing where if I were in government, I'd be like, where's my Mary McCord? And I'd be, where's my Andrew Weissman? Right? Like...

Like, and where am I, you know, Andy McCabe and the people I worked with and you worked with for years? You know, this case, listeners by now, I'm sure, are well aware that a person threw a couple of Molotov cocktails at a crowd of people who were peacefully demonstrating, and they're protesting against the hostages that are still being held by Hamas. And so these are people, not necessarily Israelis or Jewish people, but people who are in support of

Those hostages being freed. And I know that courthouse, I was just in Boulder last year walking along this lovely pedestrian mall called Pearl Street, this pedestrian street close to traffic where the courthouse is. And I know exactly that area. And this man has now been charged federally with two hate crimes.

at least based on the affidavit in support of the criminal complaint, he was pretty clear about what his intent was. He was yelling, free Palestine. He told police in his interview after he was arrested that he had been plotting this for more than a year, that he wanted to kill as many as he could, and he had also intended...

to die himself and had doused himself with gasoline, but he did not die. So I think there's a sound basis if we assume those allegations are true for a hate crime, right? And that means basically committing this attack, causing bodily injury because of, and those are literally the words in the statute, because of race, religion, or some other protected class in the statute. He's also charged with multiple state law offenses, right? Because obviously,

When you're causing that kind of bodily injury, that violates state law as well. So we've got both of these things going on. Clearly, the FBI got in there. It's an FBI agent affidavit in support of these hate crime charges. We would expect them to be working together now, the FBI and the local, and they'll kind of decide who's going to go first or both of these things going to happen, et cetera, et cetera. But there's so much, to your point, so much investigation to be done. It appears he's acting solo, but you can't just

Leave it at that, right? They'll be looking at social media, talking to family, et cetera, et cetera, to see if there are any connections. And to relate it to our prior discussion about the Bureau,

One of the things that happens in a situation like this, and I know firsthand it comes up all the time, came up during the Boston bombing, it comes up every time that there is some terrorist event, whether it's, you know, a so-called lone wolf or not, is an after-action response.

Yes. And that is where you want to know what could we have done differently? And this is where my hat goes off to Robert Mueller over and over and over again. I don't have time to tell so many anecdotes and stories of it, but that's where you want a clear eyed,

truthful assessment by senior people. And if necessary, you bring in outside people to help do that review because that important and you have a public accounting and comment about what could have been done differently so that you get better. And that is something I really think has been sorely missing, but is

So integral to, you know, if you were just doing normal sort of corporate, good corporate behavior. You would do that. Yeah. You would do that. And so these are people who work for us. This is and, you know, I was trained by Robert Mueller, which is there's always an after action.

that's needed. And by the way, I'm not saying that to say that there was any fault here. Right, right. But you don't know and that's precisely why you do it. And they may do one, right? They may do one. It just happened. But yeah, it's important. Well...

As we predicted, we are not going to have time to get into more. I will just say we will talk more about this. The sort of the retribution continues. We've seen now PBS and NPR both file suits based on First Amendment and due process.

because of the retaliatory executive actions directing the Corporation for Public Broadcasting to cut off their funding. These suits actually I thought would have happened a week or two ago, and it took a little bit longer for them to file, maybe because it wasn't something that they had to do in an emergency because they had funding for the moment, so they wanted to get their cases together. These are very well-pled complaints, which we'll talk more about. Mary, you don't think they did it because they knew we were really swamped?

Oh, right. So they wanted to wait so we would have time to talk about it. I'm sure that's why. Because we can now do it in the next episode. And, you know, the NPR one is brilliant. This wolf comes as a wolf, meaning the retaliation for, you know, the viewpoint discrimination. It is not veiled. That's a great teaser.

Stay tuned for next week. And that's very much like what Judge Leon said in granting the third permanent injunction against Trump's executive orders against law firms. He's like,

And in fact, filled with exclamation points. He's very, very adamant. I could have done it without those. Yes. And I know Judge Leon. And actually, I was surprised to see that many exclamation points. But he feels very strongly this was blatant retaliation, not veiled at all. And, you know, this this is unconstitutional. So this pattern continues. Actions against Harvard continue. And we'll talk all more about that when we next get the chance.

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