Trump’s BLUE WAVE NIGHTMARE: Key investigation LOOMS

That, just to be clear, is, I think, part of what the midterms. were about, which was. having a Congress that actually is a functioning part of our. government and reining in the. worst impulses of a president who clearly has no one around. him doing that. It is Tuesday morning, November 10th.

I am here with Barry McCord, this is Andrew Weissman, and. this is our first episode in. the new world. Yes. Post midterms. Exactly. And I was going to say, gone with the wind. So this is sort of a preview of what we're going to first talk. about, but it's essentially. our feelings, but also the actual sort of possible. ramifications. of the incoming Democratic majorities in the House and the. Senate.

-And... -In a lot of states. Exactly. Which is that, you know, people forget, and definitely people have their eyes on what the consequences. federally are, but in so many ways, there's, you know, an equal story. in terms of what was happening in the states. So, Mary, before we start emoting about my feelings, how are we going to divide up our segments today? Sure. So we will spend really probably quite a bit of this. episode.

talking about what this change in direction on Capitol Hill. as well as in a number of states means for the Department of. Justice, Congress, and the judiciary, because it has implications for. all, And they're all really relevant to the topics that we discuss, you know, every week on this. podcast. And so that not only includes things like a number of. resignations or firings or forced. resignations of high-level people at the Department of.

Justice already in this very first week. post midterms, but also just how, you know, what the impact. this has on the courts, on. the litigation that the department has in front of the. courts and congressional oversight, right? Big deal. You might be thinking, well, isn't that about Congress? Oh, there's going to be a lot of oversight of the Department of. Justice, I guarantee. And of course, we already have articles of impeachment that. have been filed. So we'll talk about-. >> Where they're stuck to Pete Hexeth. >> Yes, yes, that's right.

Not with respect to the president, with respect to the. self-described Secretary of War, who. we call the Secretary of Defense. Yes, who we call the legally required and appropriate name, Secretary of Defense. Anyway, like that's thing one. And we'll close out kind of like what's happening still in some. of the cases we've been tracking. a little bit on where things are in Alaska, where things are in. Mississippi. The case, I can just say it right now, the whole California. segregation of the ballots.

case that we talked about for three weeks, gone. After the Supreme Court, after we recorded on Monday night, said, "Nope, we're not going. to review this," the administration on its own. voluntarily dismissed the case, I think, on Friday. Because there's nothing, there's no more there. The election is done. >> Yeah, this is, talk about snow and winter. I mean, it's like, yeah, it's like, guess what? When the Supreme Court shuts the door, it's like, "Oh, you know. what? I think we'll dismiss our case.". >> We're done. We're done. get to some cases we've been following where there have been. rapid developments.

The Arch, the triumphal Arch, is now enjoined, at least. temporarily. We'll talk about the golf course and the appointment of a special. master, a lawyer that I know. quite well, you probably know her pretty well as well. Me too. Her firm actually represented me. So I can talk about it. Also, you know, just full disclosure, I practiced law with her at Chanterham Block. But anyway, we'll talk about Jessie Liu. - Yes, that's right. - Wonderful,

wonderful person and lawyer. - That's right. There's another case that we wanna talk about. Well, we'll talk about what happened also just yesterday. when the Supreme Court let proceed the building of a wall. in a national park, Big Bend National Park. on the border with Texas, which as someone who actually spent a week there. a very long time ago, this bothers me significantly. So let's jump in because we just have so, so much to talk about.

Okay, Department of Justice, do we start there? So I think I wanted to start with, there's so many ways to. read the midterm vote. And there are so many things that the administration was. doing wrong. I mean, there's no question it is a repudiation of Donald. Trump, period, the end.

But how you decide what, you know, there's probably a bell. curve of issues. And even within one voter, there may be an amalgam of issues, and there's no reason for them to decide which one. In other words, whether it's rule of law issues or the. economy or the war or immigration or. the mistreatment of human beings or the corruption, right? The corruption. All these I think are important to people. Yeah.

And so I don't think you can ever totally know because not. only are there people who. may say, "Yes, that was important to me.". But even with, as I said, even within one person, there can be. a multitude and there's. no reason for them to differentiate and figure out, oh, this is the percentage, or but for. this issue, etc. So for you and me, rule of law issues are so important because. that's why we were in. the Department of Justice.

And it stays with you whether you're in the department or not. in the department, because. you care about sort of integrity and fairness and treating people. with respect and dignity. And just to be clear, both of us were criminal prosecutors, both. of us worked in the national. security space. And that's true even when, and in fact, when you're doing that.

work, invariably the people. on the quote "other side" of that are people who may have. committed heinous crimes, may. be true terrorists, and you still are adhering-. Respect the rule of law. Exactly. They're entitled to due process, all the things. It's not the blow them up on a boat in Venezuela because you're. a bad person. This is you're entitled to all of that integrity.

And so what happens in terms of what Congress can do in terms of. the Department of Justice? And just to be clear, the Department of Justice is one. thing, but they can do this with respect. to and as we are seeing with respect to Pete Hegseth, for. instance, and the entire executive. branch. And I sort of divide what they can do into two. buckets. One I think is getting.

more attention than the other. One bucket is oversight. And. that means hearings, hearing. from witnesses, getting documents. And there's a lot of. power there, but there are also some. issues in terms of how much power the Congress will have. But the other bucket is spending. And that's one where I think probably because I was for so. long I was a manager in the Department.

of Justice where, you know, one of your jobs is, you know, the. fun stuff and the stuff. that people know about and, you know, think about the Department. of Justice, they think, "Oh, you know, Andrew, you worked on the Enron case, or you. worked with special counsel Mueller, or you know, you were doing really interesting work on Enron. or the FBI.". I mean, all that sort of stuff. But you know what you do as a manager? You spend a lot of time worrying about personnel and money.

It's like, how do I get enough people and the money to do what. the people need to do? Like your job is facilitating the people below you to do their. job. And so buckets of money, um, and what it can be spent on is. something that. you become really an expert in. And buckets of money come from Congress with all sorts of. strings attached in. terms of what you can do with that money.

And so that's an area where there's so much that Congress. can do because they don't have. to give out a dime and they can put strings on that. Yeah. Well, so let's just get into some of the legal issues like. you alluded to. So we do expect there will be more robust oversight, right? The majority in each house, the House and the Senate, is now. going to be controlled. by Democrats. They really want to hear from people like Todd Blanch and also. leaders of other departments. and agencies, Mark Wayne Mullen, the secretary of DHS, Pete.

Hegseth, the secretary of defense, etc. And they want to conduct real oversight. That means asking questions about the way that these cabinet. members are using their. power and their authority and whether Congress needs to do. legislation, appropriations, cut. off funding for things, right? Like, they could cut off funding for some of the worst types of. ICE enforcement that. has been abusive and uses of excessive force and is not. targeting criminals, for example.

They could cut off certain funds to the Department of Justice for. doing things that it's doing. that Congress disagrees with. But part of the oversight requires issuing subpoenas to. various government officials, not only for them to testify, but also to provide records. And I will say, typically, at least when I was in positions of. testifying as an official. of the Department of Justice, we usually did it voluntarily. In other words, it didn't start with a subpoena.

It usually would start with the oversight committee or the. judiciary committee or what. have you, or in my case, a lot of times like an intelligence. committee, saying, "We'd like. to have you come and testify.". And you didn't want to be subpoenaed because you wanted to. express that, "Okay, yes, we're. the executive branch. We're going to come in and--. And it's part of your job. It's part of your job. And we'll provide records. But that's not to say that there weren't lines and guardrails. and things that we wanted to say, you can't ask about this, but you can ask about that.

So typically, it hasn't required a subpoena. Things have gotten a lot more, I think, adversarial, to say the least, in more recent times. And so I suspect that it will probably. require subpoenas to get some members of this administration. to come in, and if they then refuse to produce documents, if. they then refuse to testify, we could see litigation. And this is an area that is still a fair amount of. uncertainty.

Back in the first Trump administration, some people may. recall that the House wanted to. conduct oversight and have Don McGahn, right, the former White. House counsel, testify. And this is one where, of course, you know, the president. is talking about executive privilege. and asserting executive privilege over his. communications with Don McCann. And there was litigation about that. And in all candor, ICAP, my organization, was co-counsel. with the House at the time. in that litigation.

And the litigation resulted in, yes, Congress had standing to. bring this case. That was a D.C. Circuit en banc decision. Then there was an issue of, well, was there a cause of. action? And we've talked on this podcast before, you know, to go into. court, you also need like. a cause of action. You can't just sue always about anything. And that is an issue that was pending in the DC circuit on. Bonk when that Congress ran. out because one of the issues with subpoenas is a subpoena. issued by the House, a little.

different on the Senate side because the Senate is a. continuing body, only one-third of the. members change over, right, with every election. But the House, the entire 435 members turn over every two. years. And so if litigation over a subpoena is not finished by the. end of the term, it expires. and would have to start, well, the litigation doesn't expire, but the authority to litigate, the Congress as the plaintiff, would have to start over with. the new Congress.

So sometimes things like what happened with the McGahn. subpoena got tied up in litigation. for so long that then Congress turned over, and ultimately they resolved that, and it kind of went away. So it's one of the things I think we will see. a lot of litigation over subpoenas. I think we'll see it over appropriations, too. - So one of the tools that when Congress wants something. and the party in power in Congress wants something. and controls the Department of Justice, meaning that it's the same party,

then, although it should happen regardless, any Department of. Justice should be taking. this look. If you do not comply with a valid grand jury subpoena, then. Department of Justice moves. to enforce it and there can be civil contempt and criminal. contempt, see e.g. Steve Bannon. By the way, an aside, which is that this current administration. is taking the position that. the Steve Bannon prosecution, where there was a verdict, should be completely dismissed. and thrown out.

But this is one where that tool of thinking that Todd Blanche is. going to in any way enforce. subpoenas if there's not compliance seems to me to be. fanciful. And one of the ways around that is that sometimes documents are. the hand of third parties, not. the government. So, for instance, if you are looking at the extortionate. activity with respect to, let.

I mean, just, you know, the media companies and law firms, they're going to be documents. that are not in the hands of the government. Same if you're looking at corruption, right? Same if you're looking at some of the corruption, the self-enrichment, the pay to play. Absolutely, and so that's an area where those people. do have real, one, they're more likely to turn it over. and not fight it, and two, there's sort of longer term consequences to them. in terms of what may happen.

You know, if you are in criminal contempt, unless you get a pardon, that lasts for another five years. Well, you know, Donald Trump ain't gonna be the president. in five years. So anyway, this is one where we're gonna see. a ton of oversight and there still are tools, but not exactly the same tools. as where the Department of Justice was truly impartial. - And I wanna, you know, because we talked about third parties. This is a place, too, where, don't forget, a few months ago, the Office of Legal Counsel came out.

with opinion that said even outside advisors. to the president, if they are talking to the president. about things that are sort of within the president's. official acts, that those presidential communications. are things that the president can assert executive privilege. over. And I think many of us saw this opinion come out, thought, OK, we know what's happening here. They're getting ready for the potential to have a midterms. turnout the way they just. turned out. And knowing that there's going to be oversight and they're. already, you know, putting out.

this legal opinion, that is going to mean that third. parties, if they get subpoenaed, you know, may be asserting at the request of the president, executive privilege. And that is something I think we may also see some litigation. over because if they assert. that, we can see litigation. And remember, executive privilege litigation was a big, big deal during the first Trump. administration. In fact, even after the president was no longer in. power, it was sort of the basis for the. Trump v. Thompson litigation when the House Select Committee.

was investigating January. 6th. And President Trump said, "No, no, no, you shouldn't be. entitled to my presidential records. I'm asserting executive privilege.". Joe Biden said, "I'm not.". And the courts ultimately said that yes, although a former. president could assert executive. privilege, that in this case, because of the demonstrated need. of the committee to get. a hold of those documents, that those documents could be. produced and they weren't produced. So-. Yeah, here we're not gonna have that because we're gonna have a. sitting president who's. gonna be asserting it.

So one of the things that we're seeing, Mary, is sort of two. things. One is the president of the United States, after telling the New York Times. that he accepts the results of the midterms, one is, guess what, going back to the tried and true view. that there's fraud in the election. I mean, that's one where it's like, good luck with that, because one of the things that the midterms showed is, really, you think from California to New York,

Maine to Texas, at the federal and state level, there's a wipeout. And by the way, guess what party is in control, like in so many. ways of the federal government. and of many of the states where they lost. And so that's one where it's like, you know, those Democrats. have to be really wily that. they managed to do that under their nose. So it's just sort of, to me, fanciful. Two, we're seeing the president saber rattle and say, which and. I think this is one where.

Just like the president saying there is fraud in the election, it's like we've normalized, like, wait a second, we have a. president. in the United States. It's like this is like frigging Russia. Well, if you think this is like frigging Russia, how about the. second part, which is his saying that I think Democrats who engage in. oversight. should be investigated and prosecuted? And when Todd Blanch is asked about it, it's so partisan about. this, attacks the Democrats, attacks the Democrats' approach. Instead of just saying the Department of Justice is. independent, obviously if there were to.

be criminal abuses by anybody, whether they're sitting in. Congress or not, we'll look at. it. But you cannot support an unfounded claim by the. president, but that's not how we've. used this job. And so you have the president saber rattling saying that the. Democrats have to be essentially. be careful what you wish for because you could end up like. Mark Kelly. And we could be seeking to either have the Department of. Defense take retaliatory action,

and or worse, we could seek to indict six sitting members of. Congress, one of whom was. Mark Kelly, for engaging in constitutionally protected. activity. That just to be clear is, I think, part of what the midterms. were about, which was having. Congress that actually is a functioning part of our. government and reigning in the worst. impulses of a president who clearly has no one around him. doing that.

And specific with, you know, as to the Department of Justice, right, I think Congress is going. to be very interested in political prosecutions, right? It's going to be interested in things like the complete, complete change, of course, of the Civil Rights Division. And when we come back, we'll talk about, you know, the. assistant attorney general. of civil rights was the very first person to leave after the. midterms. You know, it is no longer doing traditional civil rights. cases that try to expand people's rights.

It's instead, you know, attacking universities and and. others for their DEI. Mary, you don't think you don't think trying to prosecute a. Cassidy Hutchinson. is a traditional civil rights prosecution? I do not, as a matter of fact. So I think we'll we'll hear about that. will, you know, there'll be oversight about the corruption, about the slush fund, right? There'll be oversight about, I think, also misrepresentations to judges. - Is that your plight for you of lying? - Yes, that would be called lying.

Now, I mean, the reason I fudge a little on that, right, is those are things to drill down on, right? Is an attorney in front of the court lying. because they know that what they're saying is untrue, and we don't really know that. And so that's why I'm being careful. because I don't want to call anybody a liar. without further investigation. But they are saying things that objectively are not true. The question is, do they know that? At the time they're saying that? Like, for example, in the golf course, when they were making representations. about what in their view was happening,

at the same time the president was saying something else, is that a knowing misrepresentation or not? So I want to start, Andrew, with the resignations. And first of all, I'll premise this by saying, It is not unusual in the last two years of administration for. people to start leaving. People start thinking about what their next job is going to be, etc. But it is interesting that so quickly we've had so many people. in high-level positions. leave the Department of Justice, and I haven't been seeing these.

exoduses at other departments. and agencies. I will say, however, the first one we just mentioned before the. break, Harmeet Dhillon, the AAG for civil rights. I do believe it is the case that she was thinking about resigning. well before the midterms and. stood around. >> She has said that she was intending to, but that the White. House asked her to stay. on until after the midterms. Just a quick list though of key people.

In addition to Harmeet Dhillon, who is the head of civil rights, you have Jason Redding. who is the U.S. attorney for the Southern District of Florida. and was overseeing the so-called Grant conspiracy case. One unusual thing there is he has been the U.S. attorney there. for a little over a year. So that is unusual to leave. And the reporting on that is essentially. he was asked to leave by Todd Blanche. The inference, Andrew, that that investigation. is not moving fast enough? Absolutely.

Essentially, every single leader of that investigation left. The career person who was initially in charge of it, there. was an attorney who was brought. in to oversee it. Joe DiGenova. Joe DiGenova, exactly. Then the next person who came in for a New York Minute left, and. now Mr. Quinones is. left in the reporting, as I said, is that he was asked to. leave. John Eisenberg, who is in the position that you know very.

well, the Assistant Attorney. General of the National Security Division, he has resigned. And again, the reporting there is that it was because of. frustrations that he is a stickler. for rules. Yeah, imagine that. And was sort of nicknamed pejoratively about that by Todd. Blanche and Emil Bovey, and they. were concerned about he was moving too slow on the New York. Times leak investigation.

That was the leak that had to do with the president going in a. food cart from one plane. to another plane and that being leaked out and that apparently. the Department of Justice. leadership thought that should be moving at a different pace in. spite of the fact that. there are specific Department of Justice internal rules that have. been created to slow those. kinds of things down so that the last resort is going to. journalists because of the concern. about the First Amendment.

And that's something I also know a lot about because these were. big deal issues during. the Obama administration when I was at the National Security. Division. Right, and I was at the FBI. That's always and should be a huge issue. the journalist obviously would be the easiest source. to get the information about a leak from, right? But it really butts up against these First Amendment. fundamental constitutional rights. And the reporting here is that leadership wanted. it basically be subpoenaed journalists first.

as opposed to as a last resort. And then we have another one. - Yep, so Brett Shoemate, who is the assistant attorney general. in charge of the civil division, huge, huge job. He has been asked to leave. And he is somebody who oversaw all sorts of very, very. controversial cases. And then there are people around Mr. Whitaker, who was around. Deputy Attorney General, now. Attorney General Todd Blanch, who was left. So you're seeing a lot of senior people.

And the one thing I will say, Mary, is that's not good. If you had a traditional running department, you do everything. you can not to have that. happen. I mean, expertise and continuity and historical experience. does not seem to be something. that this administration cares about. You know, CEG, the Tundin of the mass firings. This is not a good thing. Now, I will say, I was gonna say, it's not a good thing if you actually cared.

about a normal functioning Department of Justice. In this situation, makes them a whole lot less effective. And so this is the malevolence, fortunately, married with incompetence, and this is gonna be sort of malevolence, incompetence, and inexperience. I was noticing, and a friend of mine pointed this out, that sometimes a huge litigation, you look at who's standing up for the government, and it's somebody who's been an associate in a law firm. No offense to associates in law firms,

but they're then at the department for a New York. minute, and suddenly they're standing up on a huge litigation. That is just unheard of. Yeah, yeah. I mean, I do think you're, you know, a lot of what you said. about continuity and experience. would normally apply. I mean, some of these people, Mr. Quinones, for one, I think. was totally unqualified to. lead the U.S. Attorney's Office in the Southern District of. Florida. The reporting is he'd been an assistant United States attorney. there a few years ago and.

really had pretty mediocre, if not worse, reviews. So he wasn't really in a position to show real leadership. there. People like Harmeet, I would just say, are just unqualified to have been. the head of the Civil Rights Division, given her own history and where her priorities were. that are completely at odds. Civil Rights Division, policies change. Elections have consequences. They're going to prioritize different things. I understand that. But this sea change is something that I have never seen,

And even where I've seen Civil Rights Division prioritize. different things under Republicans. than they do under Democrats throughout my career, this was. just an utter, you know, bloodbath in the division. More than 300 attorneys left, replaced with people who. basically were pledging a loyalty. to sort of this new direction to restrict civil rights as opposed. to expand civil rights, to restrict, you know, voting. She was a huge force in the litigation and efforts to.

suppress voting. And I don't mean necessarily by suppressing like forms of. intimidation, but all the litigations we talked about recently, getting. the voting records. because they wanted to search for non-citizens voting, are people not qualified and all of this kind of thing. And by the way, her track record was abysmal. I mean, just in terms of her, like her batting average was, yeah, was just like losing, losing, losing. But also, as I mentioned, it was her division. that was given the responsibility to investigate.

and seek the prosecution of Cassidy Hutchinson. And that, you know what, tells you everything. >> On the theory of like conspiring to violate. the civil rights of the president, right? Because it's like, why would this be in civil rights? Because that theory is getting a lot of traction. in this particular administration. >> Exactly, but it tells you everything about weaponization. and that people would be willing to do that, and in my view, completely violate their oath of office.

It's why you are seeing cases being thrown out. for vindictive and selective prosecution. That is something we're gonna come back to. when we talk about the Alaska criminal investigation, because I think there's sort of a built-in. selective and vindictive prosecution, And if that ever gets off the ground, if they can ever come up. with a legal theory, it's. also one which they are, you know, to me, they have. completely bought into vindictive. and selective prosecution because under their theory, it's.

something that everyone under. the sun has done. Even if you don't like it, everyone's been doing it. And guess what? You're singling it out only with respect to the Democratic Party. when it's something that. seems exactly the same as been done by the Republican Party, even in the same Senate. race. Yeah. Well, actually, since you've just introduced us, let's go. there and then we'll move to. other things. What, of course, you're talking about is the fact that the. Department of Justice not only. sent a whole bunch of FBI agents up to Alaska to start knocking.

on doors and talking to. people who they think might have some sort of information about. the recruitment of Daniel. Jay Sullivan to run for Senate when Dan S. Sullivan is the. Republican incumbent, but. also issued lots and lots of subpoenas. And subpoenas are a tool of a criminal investigation in this. case. And there is, as Lance said, that there is a criminal. investigation open. Not sure there's been any crimes committed, but that's what. they're looking into.

And a lot of these are to targets, the people who are said. we are actually looking into. you. Maybe not a lot, but some of them are. It's a bunch. I think most of them. By the way, Mary, have you-- there's this tool that I think. it might be worth taking. a beat on, which is a target letter. And those were euphemistically referred to in the department as. heart attack letters. Because you get it and it says you're a target. So you know, hence the name. And that's part of the obligation.

DOJ is supposed to let you know that if you are a target, versus. people get subpoenaed. for things all the time who are not targets, as we talked about earlier, they just might have pertinent information. to a criminal investigation. And so then it's very clear, you're not a target, it's a subpoena for documents, for your testimony, what have you. No one really likes to get it, but it's a very different thing to get it. knowing you're not a target, you're not a subject of the investigation. And these, many of these were accompanied by targets.

- And usually it doesn't come out of the blue. And I have to say, I have never ever issued one. because the way that it happens. when you've got a long-term investigation is, let's say, Mary, you're the lawyer for somebody. You and I would have been talking. and you would ask the question, which you are entitled to an answer to. at least at certain point of, is my client a witness, a subject or a target? Those are sort of very defined terms. under the justice manual.

And if you're a target, I would tell you that. But I don't need to send a letter out of the blue to your. client. I would have a discussion with you and you would have a lot of. follow-up questions about it. Here, the idea that this is being done, one, I just don't. see how there's any crime here, especially because we have the Alaska Supreme Court saying that. this is a candidate who is legitimate and can run,

and we're clarifying how the ballot will read so that there's. no confusion. Once you have that, what's the fraud? What's the civil rights violation? Because the state court has actually at the highest level. said, this is fine. That it's not unlawful, right? I mean, I don't know that this is not unlawful. What you're talking about is whether there was an effort for. a person to be on the ballot. who was not a serious candidate to sort of siphon rates off from. the DNS Sullivan. I will say I've read reporting, though, that says based on rank. choice, it appears that.

actually the people voting for Dan J. Sullivan were not. confused. They actually want they want Mary Peltola to win. And so they're putting like her first and Dan J. Sullivan second. or him and her. That's a great point. So if there actually was a legal theory here, if there actually. was a statute that made. this illegal, you could have in theory a crime and ultimately it.

would not matter that people. weren't confused. In other words, it would be enough that you attempted it or. conspired it, but it wouldn't. have to be successful. But what Mary, what you're talking about, just so everyone. follows, is like we both. of us are saying we don't see what the crime is here. And if there in fact is a crime, why are you only targeting one group, which are Democrats, when it could be, you could be targeting Democrats and Republicans. sort of around the nation for--. - Every time this happens. - Right. But now for the reality check,

which is the reporting so far is, if the theory is that the voters for Daniel J. Sullivan. were confused because they meant to vote. for Daniel S. Sullivan, What the New York Times has said so far, what they're seeing in the ballots, 'cause it's ranked choice voting, is people who voted first for Daniel J. Sullivan. voted for Mary Patola second. That makes no sense, they weren't confused, because you wouldn't be going from the Republican.

to the Democrat. And so you are seeing such a small group. where there could be potential confusion. And even there, it's an assumption. that there's only potential confusion. as opposed to just a protest vote. - Yeah, that's right. - And also everyone who voted for Daniel J. Sullivan, who has their second choice, Daniel S. Sullivan, well, he's gonna get those votes, right?

'Cause he's the second on their list. So the sort of Donald Trump, DOJ view, which is, oh, you automatically should have pulled those out, take the Daniel J. Sullivan's and just shove them into the Daniel S. Sullivan camp is factually wrong. But obviously, we'll see what happens. But, you know, right now, as we're recording this, there's a lot of speculation and there's studies, but we don't actually have a declared winner yet. That's right. And on that, I was just looking at notes.

So because Alaska is so huge and a lot of rural roads. and it relies on mail-in ballots. Mail-in ballots that can arrive, if they're domestically postmarked, they can arrive up through this Friday and be counted, and if they're from overseas, through November 18th. So this is partly why this certification is taking so long. Jumping to Mississippi, and there's not really litigation. to talk about there right now, but that is also a place where. the ballot counting is ongoing.

Today, the 10th of November, is the last day for people who had. provisional ballots, maybe. with an issue with their voter ID, the last day for them to. cure those ballots. And then I believe certification is required by Friday. So we will have some sort of answer on Friday. Last I've seen, Mr. Colum is winning by something like 2,500. votes, although that was data as. of yesterday. And there may be litigation that comes from that. And if so, we will talk about it when it happens. Exactly.

Should we talk for a moment about the articles. of impeachment that have been filed by Congressman Thomas. Massey, who is an outgoing Republican congressman? It's fascinating to me that these. are being done in this Congress as opposed. to in the next Congress. This is something that would carry over. But, this is also one where there is supposed to be a vote. within 48 hours on this.

There's some mechanical ways. >> You're supposed to take it up, right? >> Yes, exactly. There are ways to sort of put that off. And then if majority of the House votes for impeachment, then Pete Hexeth is impeached, but it goes to the Senate for the trial. people probably remember this from the two impeachments of. Donald Trump. And then there is a trial, and that is before the senators, and. the senators will decide. that on a two-thirds vote.

And that is one where, again, it's unclear whether that would. happen if he is impeached, whether it would happen under this Senate or the one coming in. in January. But the key articles, there's so many. So the first three are about the Iran war, and that is important. But honestly, the ones that I really thought were in many ways. the most significant here, because I do think there is at least an issue when we're. talking about the Iran war of is this.

really on Hegseth or is it really on the president? Doesn't. mean that Hegseth can't be impeached. But isn't it both? Right. I mean, I agree with you. I read these and I said, you. know what, this is about the war and. worth taking a beat on this, which is there's no question you. read that this is like you. carried on a war which only Congress has the ability to. declare and there's lots of nuances. to that. And I read it and I said, well, this could, you could just cut. out the name Hegseth and. add in Trump. Put in the name Trump, exactly. And that is true, but that doesn't mean that the Department.

of Defense head doesn't also, I mean, complicity is also a problem. Agree, 100%. The ones after that though are the ones that read really, I. think they're really significant. Article four is about ignoring laws that minimize civilian. casualties. And it starts out by telling the story of on that first day of. the Iran war, Secretary. of Defense Peter Hedseth directed the Department of. Defense in a manner that resulted in the.

death or injury of more than 200 civilians at the elementary. school, right, in Iran. I mean, it talks about that this being a result of a culture that. he cultivated, dismissing. "stupid rules of engagement" with a preference for maximum. lethality, not tepid legality. He fired the judge advocates general, which we've talked. about before, the head lawyers. who would be the ones saying, "Look, we have all kinds of. rules about minimizing civilian.

casualties and making decisions so that those are minimized.". He sort of dismantled that structure. He even calls out, these articles of impeachment say he, thinking of Massey because he was. the one who drafted them, calls out the attack on the press and. the banning of the press. from the Pentagon unless they were willing to sign an. agreement to basically only report. what the Pentagon spoon-fed them. Even blames that on Hexeth, rightly, but says some of that. also created a chilling effect. on actual doing real reporting on the Pentagon.

I think it's a really important article. I couldn't agree more because you know what it's talking about. is this idea of hollowing. out the checks and balances within the Department of Defense. leading to a violation of the Constitution. and the laws of war because you have innocent civilians, in this. case children, who die. as a result of that.

And so, I just thought that tying that together. was so eloquent. And I couldn't agree with you more. I mean, the others are-- It's also outrageous, but this was so beautifully done. And by the way, you could replicate that. for what Robert Kennedy did at HHS. You could replicate it for DOJ. -What Tudge Blanche has done. -Exactly. And so, it's beautifully, beautifully written. He also has an article related to the extrajudicial killings,

what you and I have called, you. know, murder on the high seas. And this is the strikes of swift votes in the Caribbean and the. Eastern Pacific. And here's one of the things that the article says, "By. subjecting persons merely suspected. of criminal conduct to lethal military force without judicial. process, without congressional. authorization and without establishing a lawful basis for. treating such persons or vessels.

as military targets, Secretary Hegseth irrigated to himself and. the executive branch the roles. of judge, jury, and executioner and asserted a unilateral power. to determine who may live. and who may die.". Couldn't have said it better, really brilliantly written, and. I don't know what the results. will be, but these are serious charges in here. And folks should know, when it comes with impeachment, talks about as high crimes or misdemeanors, the impeachment clause, right, was baked into our constitution at the founding. before we even had a criminal code.

So it doesn't necessarily mean it has to be a violation. of the US criminal code. It was thought that it was up to Congress. to determine what is a high crime and misdemeanor. So you don't have to match up an article of impeachment. to a crime. That said, I think these extrajudicial--. So yes, killings are crimes. OK, Mary, arches and golf courses and East Wings and all. of this sort of like recreating.

Washington in the image of Donald Trump, putting on as much. gold leaf as possible. Let's talk about the arch. This is before Judge Tanya Chutkin. People will remember her name because she was the judge who. had the Trump insurrection. case, and she has issued a temporary restraining order with. respect to the arch. And that means that it is halted based on two lawsuits that were. consolidated in front.

of her, and she has issued a TRO for the moment. She has put off the preliminary injunction. She doesn't have to decide that now, saying that under her view, there's a likelihood. of success on the merits that the plaintiffs have showed. that the Trump administration has not complied. with all of the congressional statutes. that require approvals and oversight. And she lists a whole series of ones that she says.

that the administration hasn't even tried to comply with. And so she says, "They're standing here. "These are the right plaintiffs. "They have an actual harm that is sufficient for standing. And they have shown that there's not been compliance. with congressional statutes. And the reason I keep on saying congressional statutes. is because she makes it absolutely clear. that the law is that this is an area. that is regulated by Congress.

And so the president cannot unilaterally do these things. It has now been enforced temporarily by the judge. And that means the incoming Congress has the ability to, one, step into the lawsuit, but really they have so many tools here. because one is the power of the purse. So I think the arch may be dead. Can I just say my favorite part of this case. was looking at what I'll call cockamamie arguments.

that the government made here were just, to me like a shell game of ridiculousness. The judge talks about that in a much more legal way. - Yeah, just this is like, here's an example. One of the laws that she said they didn't comply with. is a law that says if they're gonna do. any commemorative sort of construction, then you have to have Congress's approval. There's also like five other laws. that say you need Congress's approval. to build on park surface land and blah, blah, blah. And the government actually argued.

This is not a commemorative project because--. Did we say commemorative before? Because I didn't mean commemorative. Yeah. To celebrate the 250th anniversary of the Declaration. of Independence, wasn't that supposed to be what this article's about? Mary, you're so literal. Yeah. So she's like, basically said that's laughable. She also said, you know, it's completely improbable that a. statute passed like 100 years ago. ago that said we could have some columns that would not obstruct.

the view of, you know, the mall from this memorial circle and from Arlington. Cemetery, that that authorized a. 250-foot arch that totally obstructs the view. She's like, "Nah.". And then remember the last minute, you know, actually, this. is for national security. It's going to be like a counter drone facility, and it's going. to store ammunition. It's a tourist attraction with a restaurant and a military. complex.

It's like that old Saturday night live skit where they had. fake commercials. where they were putting a topping on a sheet cake. and they spilled some of it on the floor and they said, "Don't worry, it's a dessert topping and a floor wax.". -I love this one, actually. -So this is like, wait a second, it's a tourist attraction with a cafeteria and a military. installation. Well, she doesn't go for it. In fact, as we've discussed before, that was a very sort of. last minute sort of addition.

I read the declarations from Hegseth and Mullen, and they. don't even actually say it's going. to be used that way. They actually say that there's the potential that it could be. used this way. And here's what Judge Shutkin said. She said, "The court appreciates the government's significant. interest in national security, but these recent and unsupported attestations of security aspects. of a structure that has. has been extensively discussed over the last year, appear nowhere in the planning documents. on which the project was reviewed and approved. Indeed, they materialized for the first time. when defendants filed their opposition brief last week.

When asked at the hearing about the security aspects. raised in the Hegseth and Mullen declarations, the government responded that it had no further information. other than what was contained in the declaration. Basically, I got nothing, your honor, I got nothing. This is one where judges are doing something very smart. And I just want to like foot stomp on it, which is when these. affidavits are submitted, judges are increasingly saying, I want to actually hold a.

factual hearing with live. witnesses. Right. And I want to put seats in butts. No, butts in seats. I want to put butts in the seats. Yes, I want to put a seat and a butt. Yes, exactly. What is that? I'm crossing my eyes and dotting my Ts. Dotting my Ts. I love it. Well, a friend of mine says that's the way the cookie. bounces. So I'm like, I'm like, I'm filled with my malapropisms.

Yes, you need to put butts in seats, meaning you want to hear. from them and make them actually. have to testify. And one, because it creates a really good record. Two, there can be consequences to them if they are lying. Three, you could push them back. In other words, taking an oath. and actually having to go to court. could be one where you really, somebody would be like, "No, I'm not gonna subject myself to that.". And the truth can come out in a better way. So there's all sorts of good things. that can happen from that.

Well, that is the perfect segue to the golf course. Perfect. Because that's exactly what Judge Reyes is saying. Exactly. You know, you know, right now there's a whole new TRO pending. before her, because again, the president's like, we're closing everything. November 15th. My son and husband just played there yesterday. It is not closed yet. And I don't think it's going to be. That's my prediction. I hope I hope. But, you know, at the same time, remember, this is where we've. had. the people in court in front of her saying, oh, no, no,

this is not about making a PG tournament golf course. Originally, it was about this is about going back to the design. from 1923 and just clearing. some trees. Now, new argument is, oh, the seawall is crumbling. This is all about fixing the seawall. I will tell you, there is a seawall around Haines Point that. has been in a bad state. for a number of years. I run there, I bike there, and sometimes water will flood onto. the sidewalk.

And it does need to be repaired, but it has needed to be repaired. for a long time. That is why, you know, it's really interesting to repair it. I mean, the government obviously took the position and it seems. so rational. that you would, by the way, this is all of my like sarcastic. snark. comes out because it's such bullshit. It is. Which is, I'm sorry, to repair this. You don't have to close the birth course to do it. Or take out 500 trees. Yeah, exactly. I mean, it's so preposterous. Judge Reyes is ready to get to bottom of this.

And what she did, and I'm going to just read from her minute. order. As for the reasons stated at the October 30th hearing, the court intends to appoint a special master. to investigate whether Department of Justice. or Department of the Interior Council. have committed ethical violations in this matter. through October 31st. And in doing so, she is appointing former United States Attorney, Jessie Liu as the special master. And as you and I talked about, she served as the US attorney. in the first Trump administration in my old office,

the District of Columbia. Having been appointed by Donald Trump. That's right. So, I mean, just to be clear, this is not the judge saying I'm. picking some, quote, "rogue Democrat.". You know, this is somebody who is a very good example of you. can be a Republican, you can. be a Democrat, and you can completely adhere to your oath. of office. She also, like I first met her when we were both AUSAs in that. office, right, many, many, many years ago.

She also held positions in the National Security Division of. Maine Justice, where I ended up. many years later. She was, I believe, a Deputy Assistant Attorney General in. the Civil Rights Division. So she has a long history at the department. And the notice of intent to appoint her, the reason it's a. notice of intent is because. the parties have the opportunity to contest it and contest her. And in fact, the US government has already said, "We can test that there should even be a special master.".

And she's like, "Putting that aside, tell me if you got any complaints about her.". And Judge Reyes seems intent to do this, and I think this is really important. because we've seen judges trying to get to the bottom. of whether they've had lies, falsehoods, misrepresentations, whatever, made to them, and they've been stymied, right? as Bozberg is still trying to have his contempt proceedings. about things that happened, you. know, a year and a half ago, regarding the flights that took.

alleged members of Trinidad. and Tobago to a terrorist detention facility in El. Salvador. And that's awaiting a ruling from the DC Circuit. Yeah. And Judge Perry is in Chicago. In Chicago. It's the same thing. So I think this is such a welcome sign because as Mary, you and I have talked about, we both. served in the Department of Justice. collectively for decades. And none of this behavior would have been tolerated.

for a second, not just within the department, but certainly by the courts. And so I think that the courts have been incredible, but they have bent over backwards. But at some point you have to lower the boom. Now, granted, there needs to be due process, which you are. seeing, but we should point. out that in the Judge Reyes case, she has made a credibility. finding with respect to.

the most senior person who testified, whose butt was in a. seat. I think I got that right this time. Before her and said that she found him to be not credible. And so that is what the sort of impetus is to find out exactly. what's going on and more. on that. And it's also one where now the court can be helped by Congress. because Congress can. look into this as well, as well as Congress has the keys to the. kingdom in terms of these.

projects where this is so much congressional money that's being. used, congressional statutes. that oversee things, where the government's position is not. inherent presidential power, at least in the first instance, maybe they'll get there, but. they're saying, "Oh, this is. power that we were delegated to us by Congress.". Well, that means that the incoming Congress has so much. power to put a stop to these things.

And it's one where, just to put a political hat on, at a time. when you are seeing such. problems with the economy, and you have the war exacerbating. all of that. The idea that you have these vanity projects that are going. on that are worth millions. and millions and millions of dollars, when that money could. be better spent. Yes. Absolutely. You know, it's just, this is one where that contrast is so. useful.

And, you know, I've been listening to this series on the. French Revolution. And, you know, this is it is it is sort of like Donald Trump as. Marie Antoinette. Yeah. Yeah. Well, speaking of Congress and money, I you know, the Congress incoming Congress can fix what the Supreme Court. just did last night. when the Supreme Court said we are staying a lower courts order.

prohibiting the building of a wall through Big Bend National. Park on the. border between Texas and Mexico. The lower court had said it's. prohibited. because the Secretary of Homeland Security waived all. kinds of requirements. for, you know, environmental reviews, cultural reviews, all. sorts of things. that Congress has said these reviews need to take place. before you do certain. construction projects, and there is a provision, I will say, in. immigration law that does allow.

the Department of Homeland Security Secretary to waive. those requirements when it's really. necessary sort of to take on, to build barriers and roads. But the lower court had said, "You know, this is a major. question here, and I think that. this, if Congress expected you to be able to wipe aside. everything in a situation like. this, that they would have been more explicit about it and. enjoined it. The Supreme Court stayed this yesterday, found, and I think it. was a precurium decision with.

a noted dissent by Judge Justice Jackson, although she did not. write on it, she just. noted her dissent. And one of the things that really bothers me about this. decision is the Supreme Court, again, on an emergency motion, no full briefing, no oral. argument, saying the government is. exceedingly likely to prevail on its argument that the district. court lacked jurisdiction. to adjudicate respondents so-called major questions. doctrine claim because they say.

the major questions doctrine is not a constitutional doctrine. It is a statutory interpretation doctrine, and this is not a. constitutional case. That is a pretty significant thing to say in this emergency. posture, and we are talking. about a wall being built through like one of our treasures, a. national park. And so this is something where Congress could, day one, say we. are revoking any money to. be used for the building of a border wall at Big Bend National. Park.

And I hope that they will do that. And just to be clear, you and I have seen Congress do things. where they say no money. can be spent for X. That's right. >> And did this on part of the wall in the first Trump. administration? >> So that is one where I hope that there's so much politics. involved and there's legal. issues and you're seeing now they mesh where Democrats I. think have been so reluctant to.

take on immigration issues. But you can be for sort of an immigration policy that is to. get out the so-called worst. of the worst that is actually aimed at that. and not people who are not the worst of the worst. and also doing it in a completely legal, humane way. I'm gonna channel my inner Nicole Wallace. when this all first was happening. and she saw the Bozberg case, she was like, "I don't really understand. Couldn't this all just have been done legally?".

And so she's like, "The cruelty is the message. because there actually is a way to have done this. in a way that just doesn't cause this kind of controversy. and they courts everybody due process. and the government can't carry its burden, so be it. And if they can also, so be it. Then it's just a policy issue. So I hope that you are right. - Yeah, so I do too. (laughing). And it's, we've seen it before. So I know we need to close.

and this justifies a whole segment of its own. But I wanna close with people thinking. about how in another way the world has changed. We have seen over the last several administrations, groups of blue states bringing litigation, right, against the Trump administration. Groups of red states bringing litigation, remember, against the Biden administration. Oftentimes those groups of red states. were led by the state of Texas, whose tech name would be on that litigation. Texas has now gone blue, not just in the Senate,

not just in the governor's office, but also the Attorney General's office. And so can you just picture some litigation, the latter half of this administration, by a coalition of blue states headed by Texas? Let's leave that to soak in, and then we will talk more about that. - That is such a lovely way. (Danielle laughs). Okay, it's like deep breath and centering,

And it is just a lovely, lovely thought to end on. Not that we're being partisan here. We're just talking about, you know, elections have consequences, so. Absolutely. (upbeat music). (gentle music). (upbeat music). (gentle music). you.