TF 26: Who Fights for The People When The Government Won't?

Harry Litman [00:00:07] Welcome back to Talking Feds. The third of our six live programs from Washington D.C. We've heard in the first two programs from different vantage points but I think both detailing a kind of tough time to be at the Department of Justice. Today in this podcast, we focus on some ex-Feds who've responded to these and similar challenges by acting -- putting their experience and skills to work in the service of the institutional values of the justice system and the Department of Justice. But as a kind of pushback. Against the administration's abandonment of aspects of its traditional central mission and these people are also our co-sponsors for this entire series and to them we owe -- all their hospitality has made us welcome here in D.C. just a few blocks from the Capitol. 

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Harry Litman [00:01:06] The Georgetown Law School Institute for Constitutional advocacy and Protection and there -- well let me let me stop right here and ask about their main mission. Turn to Mary McCord who's a Visiting Professor of Law at Georgetown University Law Center. She's also notably the former acting assistant attorney general for national security and maybe even more significantly for talking feds. A federal prosecutor for some 20 years here in the district. Mary, thank you very much. And I propose because you have a few of your colleagues here that maybe you could tell us a little bit about yourself and then pass the baton on to a colleague. 

Mary McCord [00:01:53] Thanks for having me here Harry and talking Feds were glad at Georgetown to host the program this week. So I along with my colleague Josh Geltzer who's the executive director of the institute which we call I kept left government early in 2017 shortly after the transition and helped to start this institute which was the brainchild of Neal Katyal who famously argued the travel ban case in order to use the power of the courts to defend and protect constitutional rights and norms. 

Harry Litman [00:02:21] Now I assume I mean since you were a USA for 20 years this is not your first presidential transition was even in early 2017. Did you have the inkling that you might be more satisfied or effective on the outside it's kind of a daunting thing to leave government when you've been there so long. 

Mary McCord [00:02:40] Sure.  I expected to retire from government and although a lot of people think that's what I did I was not old enough to retire. So I just want to set that straight right off the right off the bat. Yes, I went through many different transitions, served under Republican and Democratic administrations, never felt it difficult to do my job as a prosecutor under different administrations coming into this administration. I certainly, at that point,  was the acting head of the National Security Division at DOJ. It's an important position. Thought I would stay through a successor being nominated and confirmed but that became increasingly challenging once Jeff Sessions came to the Department and it became pretty clear by March or April of 2017 that I could do more good at, really, sort of protecting the values that I'd spent my career working to protect from outside the government rather than from inside. 

Harry Litman [00:03:33] OK. And you're going to introduce the gentleman on your right but I ask everybody here when you were introduced to just give a couple words about just that mindset at the time. 

Harry Litman [00:03:43] What made you decide to leave and to sort of pursue the things that had brought you to the Department of Justice outside the DOJ. 

Mary McCord [00:03:54] Yes I I'm happy to introduce Josh Geltzer.  He's our executive director. He worked with me at DOJ in the National Security Division and was also had been on detail to the National Security Council and the legal advisers office and later as the senior director for counterterrorism. My colleague, my friend Josh.  Thank you Marian. 

Josh Geltzer [00:04:13] Thanks Harry for hosting this and let me also give listeners a sense of the rest of the ICAP team that's here and who will be chiming in throughout the course of this conversation. We have Amy Marshak, a litigator at ICAP a veteran of the National Security Division at the Justice Department. Annie Owens, also a litigator at ICAP who served in the Office of Legal Counsel as well as in the Solicitor General's office at DOJ. We have Nic Riley a litigator at ICAP who came to us from the civil division and in particular civil appellate within the Justice Department and we have Seth Wayne also a litigator at ICAP and a veteran of the Civil Rights Division at Justice. And briefly, I was honored to work at the Justice Department and, when the transition rolled around, was honored to be on loan from justice to the National Security Council as Mary mentioned and in some sense I had a fulfilling transition, my successor as Senior Director for Counterterrorism, Chris Costa, was a wonderful person to hand ove the work of counter-terrorism coordination to and he has remained a friend since. But if you zoomed out from that there were things happening that concern me. The travel bans we mentioned already. There was a broader clear departure not only in substance but also in process that was occurring and it made me feel as Mary felt as well that I could continue the sort of mission I had signed up for from a different vantage point. And that's what led me to come to ICAP and to try to do work that would defend constitutional rights and values in the courts and elsewhere. But from here at Georgetown Law. 

Harry Litman [00:05:53] Let me zero in a little bit more on that time. You know we've had this war of words even dating to today where the president and Press Secretary will assert that there's either terrific morale or terrible morale at the FBI and DOJ when Comey was fired. We were supposed to have understood him to have been very unpopular within the bureau. There's been a back and forth. And so we've it's great to have a sort of inside vantage point. What was it like there before you left? 

Harry Litman [00:06:26] What was it like at the water coolers?  Were you guys really sort of outliers, you know deep state Democrats? 

Harry Litman [00:06:33] Or was there a general kind of anxiety among the career staff for what was happening and I'll just arbitrarily ask Nick to, you know, if you were at DOJ in early 17 right? 

Nicholas Riley [00:06:49] That's right I actually left after everyone here. I left in April of 2018. 

Harry Litman [00:06:52] So did it feel like something fundamental had changed. 

Nicolas Riley [00:06:57] You know my decision to leave was was highly personal. I know that there were other people at the department who felt uncomfortable with some of the cases that were coming down the pike. They were being asked to do things that were different from things they'd been asked to do before and it made them uncomfortable. 

Harry Litman [00:07:09] Things as in take legal positions. 

Nicolas Riley [00:07:11] Exactly. Take legal positions on on cases that they hadn't anticipated. I think even, you know, I left, as I said, in April 2018 and I think, you know, there were cases that were still arising at that point that people wouldn't have even predicted in April 2017 that they would be having to take certain positions on. For me it was a much more personal decision and it just came down to the fact that you know I was for the first time in my career at DOJ -- found myself more excited about hearing the kinds of cases that my friends were working in the civil rights world like that at ICAP were working on it right then the cases that I was working on and that was new. 

Harry Litman [00:07:44] ICAP was already a going concern?  When did you guys really become a place that someone leaving the department would think about going to. 

Josh Geltzer [00:07:52] Well we launched in August of 2017. We'd been building over the course of 2017 and beginning to put a team into place and beginning to figure out what our mission should be. But we launched in August 2017 already with the desire to have the identity that we're talking about now. To have a role in which those who had been part of the executive branch, who at times had stood up for executive branch authorities, could take that expertise, take that experience, take the credibility it might offer them in court and elsewhere and put it to use patrolling the exercise of executive authority, among other elements of our work. 

Harry Litman [00:08:29] And there are six of you here who all are sort of refugees from the department. 

Harry Litman [00:08:33] But I gather you're at least nine people strong in the litigation unit that is I get. 

Josh Geltzer [00:08:39] That's right. We have a team of nine lawyers and a paralegal and even more than that we have students here at Georgetown Law who plug into our work and get to train and what we hope will be a path that leads them to becoming the next generation of impact litigators. 

Harry Litman [00:08:55] And of course we want to come to your work and soon but just to pause another minute or two on where things stood in 2017. So Nick you mentioned that some of your colleagues were asked to take positions different from what they'd taken before. You know, you could argue that's a routine concomitant of a change in administration. Was that basically it? Was there a sense of kind of either harshness or a lack of collegiality to it? Or the people who were here -- I will just ask Amy to speak to it. Were they feeling in, some ways, less integrated into the leadership than they had before. 

Amy Marshak [00:09:38] I imagine what you've just said is absolute correct, Harry, which is that in any transition there's going to be some role for the career staff to rebuild the trust of the political appointees who come in and then their more political staff to understand that everyone is trying to work toward the same common good. 

Amy Marshak [00:09:55] It seemed that in this administration there seemed to be a continuing a little bit more of a disconnect between the career people who had been working there, I worked in a policy related job at national security and in terms of policy matters there seemed to be a continuing effort to do things more at the political level than there had been at the end of the Obama administration. 

Amy Marshak [00:10:16] That said there were eight years the Obama administration to build that kind of trust with people to know that your career staff is representing what it is that you want to do as a policy matter. So it may just be a matter of time and I left before having that opportunity to build that relationship. 

Harry Litman [00:10:30] OK so I mean part of this could be then substantive and, you know, is it largely that?  Would people either on the inside, you know basically say "Oh ICAP They're just a bunch of, you know progresses and we were going a different route," maybe. Seth What what was it like? I know when I have been there under Republican and Democratic administrations and felt a real difference in emphasis, say, in the civil rights area where you worked. Did you feel a sea change there? But again was it, to the extent there was discontent, was it something greater than a change from one political party to another? 

Seth Wayne [00:11:11] Yeah that's a that's a good question. I think a lot of what my experience was had to do with the specific unit I was located within in the Civil Rights Division. 

Harry Litman [00:11:20] You were in special lit, is that right? 

Seth Wayne [00:11:22] Yeah, I was in the Special Litigation Section but even more specifically within the police practice group and what we did was work on reforming police departments that were engaged in a pattern of civil rights abuses. Usually, those reform efforts involved something that's called a consent decree that a lot of people have heard about which is a binding agreement in court to institute certain reforms. Now there was both kind of an atmospheric and a practical aspect that affected how morale was within the within that section after the election. You know, there was a lot of rhetoric by both Jeff Sessions and Donald Trump during the election cycle and immediately thereafter, essentially undermining the work of police reformers --- talking I think Trump spoke specifically in favor of police committing what we would consider to be brutality or excessive force which is something that we had actively within the section been working to prevent. And then as a practical matter there were a couple different things: First Jeff Sessions instituted a review of consent decrees and expressed open skepticism about the work we were doing which undermined our effectiveness and our ability to work with the communities. 

Harry Litman [00:12:36] Undermined your effectiveness because the communities you would go into would know,  "Oh, but the big boss is going to roll you when the time comes.". 

Seth Wayne [00:12:43] Exactly. I mean police reform is a challenging prospect to begin with but it relies so much on the participation and the involvement of community of folks in the community. That's activists and regular people who work with the police on a day to day basis and and the police departments themselves and then when you have the leadership of your department openly expressing views that are contrary to what you're trying to do, it really affects your ability to work with folks on the ground. And then also we we weren't sure at the time what the internal review that was ordered by the Attorney General would do as a practical matter for what we were allowed to do within the department. 

Harry Litman [00:13:23] Well let me stay with you for a minute because on substance something very important happened, right? Didn't sessions make an order that all the consent decrees would have to be signed off on by the political leadership? So in the past I think the special section had authority to sign these for the Civil Rights Division and for DOJ but Sessions wanted that to be done only at the political level. First of my accurate about it and what did you what did you perceive that motivated that that step?

Seth Wayne [00:13:55] I think there was always political participation of one sort or another in the consent decrees whether that had to go all the way up to leadership of the Justice Department or could remain within the civil rights division itself and the leadership there. I'm not 100 percent sure I wasn't very high up myself. I was just a line attorney but it did. There was a couple different things. There was a mandated review of every consent decree by leadership of the Justice Department that I think we all believed was with the intent of rolling back kind of the obvious intent of rolling back and diminishing efforts to enforce those decrees. And then there was also that new decrees would need to receive approval in a way that we all believed was with an intent of stopping those new decrees from occurring. So as a result of those things kind of getting back to your original question, there was the wide perception within the department that we were being -- or within that specific section -- that we were being actively targeted by leadership and that we would have difficulty doing our jobs and the things we were committed to. 

Harry Litman [00:15:04] All right. So we have a pretty good picture of why different among you might think things might be more hospitable or attractive outside the department. Now when I thought of leaving the department a place like ICAP didn't exist. So for everyone here it's pretty fortunate.  As I sort of see it -- Mary, is this fair? -- You basically created this whole new litigating model that that has, in fact, permitted you to, in a real concrete way, pursue the objectives that brought you to the Department of Justice but from outside. I mean, is that right and can you give us a sense of how that works in practice? 

Mary McCord [00:15:48] That's exactly right, Harry. And it works in a variety of different ways. Josh mentioned that we kicked off in August of 2017. Our first brief there was a brief,  an amicus brief, which is a friend of the court brief, filed in the 5th Circuit in a bail reform case. It was a class action challenging the detention of people accused of crimes before they get trial detention solely because they couldn't pay money bail. Sort of an obvious constitutional violation, equal protection violation, because -- based on their poverty. And having spent almost my entire career as a prosecutor. 

Harry Litman [00:16:20] So I've got to stop for a second because poverty not being a suspect class. Give us give us another sentence about why that was an obvious protection violation. 

Mary McCord [00:16:29] So in the area of incarceration in criminal cases the Supreme Court has sort of expanded the doctrine which, you're right, normally would apply just to suspect classes like race and gender and things like that but has applied it to originally in cases that said you couldn't extend someone's sentence of incarceration solely because they were too poor to pay a fine.  For example, because sometimes if people were fined and couldn't pay their fine-- 

Harry Litman [00:16:56] Almost like debtor's prsion. 

Mary McCord [00:16:57] Exactly. It's a debtor's prison. So the idea here was the same, that a person who could afford to pay bail, paid bail, went free, awaited their trial. A person who couldn't afford to pay bail which is many many many people were just detained pre-trial which might be weeks or months or even longer. And so having been a prosecutor most of my career I thought, "Well that's pretty awful and that doesn't exist in the federal system." So quickly drafted up an amicus brief and within a very short period of time had sixty seven current and former prosecutors federal state and local sign on to that amicus brief that we filed in the 5th Circuit. This is something that showed that we could bring people together. Some of these were Republican officials. Some of these were Democratic officials. Some were actually current elected officials, the actual sitting D.A. of Harris County Texas the very place where the case had been brought in Harris County signed on to our amicus brief and that showed that there is this area of intersection where people even who on many issues their views diverge could come together to agree that there's something here to fight about. And, in fact, the Department of Justice had in some of these bail reform cases had filed its own briefs in support of the plaintiffs and and after-- 

Harry Litman [00:18:11] Oh, you mean pre-17. 

Mary McCord [00:18:13] Pre-17. That's right. 

Harry Litman [00:18:14] And in through what section would that have been? How would the Department of Justice have entered into that? Also as an Amicus and-- 

Mary McCord [00:18:23] Well, they just file a statement of interest, generally speaking, and have done that in a number of cases and they had done that in a case in Georgia. Calhoun Georgia. And then, after the change in administration, they at the next stage of that litigation, still entered a statement of interest but it wasn't in support of the plaintiffs there. It wasn't in support of the people who had been detained unconstitutionally. It was in support of neither party. 

Harry Litman [00:18:50] And did they change their constitutional position? I presume the first one said there's a constitutional problem and the second lawful? 

Mary McCord [00:18:57] So they didn't change the position that there was an equal protection violation. They changed the position about how long a person could be detained before they got an individualized hearing and that's where they took up the sides. 

Harry Litman [00:19:10] All right. Well, you're taking a federal constitutional position that is exactly the kind of thing that the department might have -- that you might have done and, you know, Mary McCord for the United States -- except this is Mary McCord for the United States but not for the United States. (Laughter) So this is a really remarkable kind of practice.  Annie, could I just ask you for something that you've worked on and that's another concrete example in particular of either the work or the position that you feel would normally or previously have have fallen to a Department of Justice lawyer to assert. 

Annie Owens [00:19:48] Well sure and I will begin this answer with a caveat that I have been with ICAP for about three weeks now. So I'm the newest member of the team. 

Harry Litman [00:19:56] How's it going? How's the food? (Laughter) 

Annie Owens [00:19:56]  It's going great. Great.  But one of the things that drew me to ICAP initially was some of these creative theories that they were employing in litigation, including in Charlottesville, to sue militias for unlawful paramilitary activity under state law-- 

Harry Litman [00:20:19] So I wonder, I just want to ask you quickly, so three weeks ago you come here. You were leaving the department did. Where else did you consider? I'm just thinking a year ago there wasn't such a thing or two as an ICAP. So did that leave you--you know what else would be out there for someone who wants to do progressive work?. As a litigator?  Everyone here are litigators, right? I mean, that's your--. 

Annie Owens [00:20:42] So I have been a litigator on and off during my career. I began my career as a litigator actually as a Bristow Fellow in the Department of Justice in the Solicitor General's Office in 2007/2008 during the George W. Bush administration. And then I went to a law firm and after that I went back to the Department of Justice and I was in the Office of Legal Counsel until February 2017. I left and actually, before coming to ICAP, I spent the last two years working for the ranking member of the Senate Judiciary Committee. And that was a way for me to continue my government service and still work on issues that I really cared about and tried to effectuate change that I really believed in. 

Harry Litman [00:21:28] I would think they'd be pretty valuable sort of rounding out experience just how things go on the Hill, not pure litigation but almost kind of strategy and policy. 

Annie Owens [00:21:37] That's right. 

Harry Litman [00:21:37] But I'd like to go back to -- and maybe Josh you can frame it for us --  Charlottesville. To people out there we have the basic recollection of the events there and the President's shocking ambivalence or on the one hand, on the other hand kind of reaction-- what legal opening did it provide you guys and how did you exploit it? 

Josh Geltzer [00:22:06] Well let me tee it up and then turn things over to Mary who's really masterminded this litigation in Charlottesville and since then beyond. But the experience of that weekend was the horror of the news--. 

Harry Litman [00:22:18] Remind us a little for people, give us the basic, uh--

Josh Geltzer [00:22:21] Yeah, so this is this is, you know, August 2017 and I think around the globe people watch as this, in some ways, quintessential city embodying American democracy right? This is a college town, the college is founded by Thomas Jefferson of all folks. And on its streets it's it's violence breaking out. It's, in a sense, rogue armies pitted against each other, fighting including with with some pretty serious weaponry at times. And Mary and I I remember coming into the office Monday morning, I think there were just three of us at that point at ICAP. We had just launched the week before with the filing of that amicus brief Mary talked about and then the bell reform case and we sat down a little bewildered and a lot chagrined by what we'd seen that weekend. Then we began to say,  "it's not enough to just say the first amendment protects hateful speech." Though that's true. "And it's not enough to say that the Second Amendment protects in certain contexts the right to bear arms." Though that's true. "What more is there that law can do to try to push back on what we saw?" And maybe that's why I'll invite Mary to talk about it because she's the one who began to figure out an answer to that question. 

Harry Litman [00:23:26] By the way how cool. There are three of you. Something like this just happened and you go in, like, well, why don't -- You're just making it into the sort of small time law firm but the huge kind of goals and you know basic mission of the Department of Justice. 

Mary McCord [00:23:46] Well, you know one of the things I was outraged about as we watch James Field's ram his car into a group of counter protesters killing Heather Heyer and seriously seriously injuring dozens of others and having just been head of National Security a few months before. It's like, I know what this is. This is terrorism. 

Harry Litman [00:24:02] Yeah. And by the way, when you were head of National Security that encompassed domestic nat -- that encompassed the sort of McVeigh's and Unibombers of the world not simply correct--? 

Mary McCord [00:24:12] Well, theoretically, yes but, but, you know, the focus since 9/11 has been on international terrorism and that's where the most resources have gone. We were very concerned about domestic terrorism, we knew it is on the rise. But what was really unique about this is just in the previous two years we'd been seeing all over Western Europe and other places the use of vehicles to commit terrorist attacks which would be prosecuted as terrorist attacks. Yet here in the United States because we don't have a domestic terrorism statute, we saw James Fields do the same thing and not be prosecuted as a terrorist. So you're probably wondering how am I. How am I getting to Charlottesville? So I went actually on to lawfare --It's a national security blog -- to write a piece calling for a domestic terrorism statute saying we need to treat James Fields as the moral equivalent of the terrorists who have done similar attacks and saw this really interesting post by Philip Zelikow a history professor at the University of Virginia who used to be a constitutional civil rights lawyer in the 70s and 80s and had used along with the Southern Poverty Law Center had used state anti-private paramilitary law and anti militia law. To get court ordered injunctions against the militia wing of the KKK. So back in that year, and these had gone to cases in both Texas and North Carolina, and SPLC and Professor Zelikow had been successful in getting these court orders. And, literally, I called Josh-- we're in a very small office so all I had to do was say,  "Hey Josh!" (Laughter) And I said, "Look at this." We could do this in Virginia because these groups who came whether it was the self-professed militias, the Pennsylvania Lightfoot, the New York Lightfoot, that came looking like the National Guard, dressed in full fatigues, AR 15s, helmets, flak jackets, boots, etc. Or whether it was the white supremacist groups who came with their shields and their clubs and their bats and the batons. They were acting like little private militias and that's unlawful. 

Harry Litman [00:26:04] And more than that, wasn't one sided literally masquerading as wearing the, and in which of course, that would be a federal crime. So my immediate question had been what, into what breach were you stepping? How would the DOJ normally go about it? But that would -- if you impersonate it's the same thing as if you pretend to be in the FBI that the feds will come after you. But here they were not? 

Mary McCord [00:26:27] There had not been early on.  No granted, this is just a couple of days after the, after the event.  There had been very few arrests made and certainly no federal charges at that time and it wasn't for many many, maybe a year later, before there were any federal charges brought against James Fields and those weren't hate crime charges. 

Harry Litman [00:26:44] And when did Trump weigh in? 

Harry Litman [00:26:46] He weighed in the very day, the very evening of saying that there were "very fine people" on both sides which we disagreed with vehemently. But anyway, we gathered together and one of our colleagues who's not part of this podcast because he's not a former fed, Daniel Rice, spent literally hundreds, if not thousands, of hours watching videos from the events. We made multiple trips back and forth, interviewed people there and we filed our lawsuit two months to the day after the Unite the Right Rally on October 12th 2017. 

Harry Litman [00:27:19] And the lawsuit said what? Because I thought you had a legislative initiative in mind. What was your lawsuit. 

Mary McCord [00:27:24] So the lawsuit was to to use these state anti-paramilitary laws, bring private causes of action representing-- 

Harry Litman [00:27:32] Did they provide for them?  So private cause of action -- Oh, they didn't provide for them. Oh this is really McCord's genius here. Wow. 

Mary McCord [00:27:36] Not explicitly -- Everybody's, everybody's--.

Harry Litman [00:27:40] So there's a law that just says you can't have them and you said we want any citizen to be able to. So you had a standing argument, among others--.

Mary McCord [00:27:46] So more specific than that. One was a constitutional provision that says in all cases the military shall be strictly subordinate to the civilian authorities, meaning no rogue militias. The others were criminal statutes, saying you can't engage in paramilitary activity. And then we used a public nuisance theory. So we represented the city of Charlottesville, went down, met with all of the council members and the mayor. They voted to join the lawsuit. We represented small businesses who had been subjected to the militias coming along and really threatening their shops and their shopkeepers. And we represented  neighborhood associations. And so, one of the first things we had to do, of course, was make arguments that you could bring such a cause of action for an injunctive relief for -- not for money, this wasn't for damages done -- this was to prevent them from coming back in the future. And it was also important because of the First and Second Amendment, to use a theory that was not based on content or viewpoint, right? So the beauty of this is that this is about conduct. It's about violent conduct and paramilitary conduct that's not protected by the First Amendment. And even though these are people who, in many cases, were bearing arms, the Second Amendment only protects, as the Supreme Court has told us, the individual right to bear arms for one's own individual self protection and not to form a militia. So we used those theories successfully. 

Harry Litman [00:29:05] I gotta say, as a former Fed, it's like, sort of stunning to think that you would take a criminal law that just applies and try to find or find -- assert a private right of action under it. That would make your head spin within the department. But it also points out, you know, a kind of fabulous nature of your practice that it's, you know, I love being in the Department Justice. Most people love being in a department justice. On the other hand, it's this huge bureaucratic place and there's ways you do things, and go tos, indictments, and you guys are just, like, making it up and beautifully like like a scrappy little little litigation firm. 

Josh Geltzer [00:29:52] And Harry I wonder if we might invite Amy to say a few words too because Amy was with Mary and me and others from the team that day and just I wonder if Amy you talk about what the experience was like because having the City Council vote and walking over to the courthouse it really was, I thought, quite a remarkable day. 

Amy Marshak [00:30:07] Yeah it was. It was a lot. 

Harry Litman [00:30:10] By the way, did you win? 

Amy Marshak [00:30:11] Yes we did. I can start with that. We did win. We have gotten, basically, consent decrees with each of the defendants. Most of them, all through settlement eventually and by settlement we got the consent decree that they would not come back and do the thing that we didn't want them to do. So it wasn't much of a settlement on our side. It was getting the decree that we asked for. 

Harry Litman [00:30:31] Now, I just wanna -- because you weren't threatening them with money damages or anything.  You were just, you asked for an injunction and the settlement was they said we won't come. I mean that's pretty total victory. 

Amy Marshak [00:30:42] Yes. Ah, so, we did have to litigate some of the legal issues with two of the defendants, ultimately litigated through the motion to dismiss stage. In Virginia it's called the demur stage. Some of the key legal issues in the case. Interestingly, those were not the main militia groups who were the ones fighting it -- that you would think of -- it was a left wing militia and Jason Kessler, the organizer of the Unite the Right Rally. The trial court judge in the state court in Virginia ultimately ruled in our favor on pretty much everything. That there were plaintiffs who had standing, that these were viable theories. You could bring them under criminal statutes and the constitution. 

Harry Litman [00:31:15] Did the other side have lawyers? 

Amy Marshak [00:31:16] They did have lawyers. Some of them were colorful. They were actually two people. One is a gentleman who regularly represents the sort of right wing causes and one is the one who represented the left wing militia group, generally represents left wing militias, and they commented to us that they've never shared a counsel table before and litigation. So that was an interesting pairing. But after that the trial court judge ruled in our favor on all these legal issues, those two remaining groups entered into consent decrees without going to trial, ultimately. 

Harry Litman [00:31:49] And Annie, I don't know if you would know this but, relatedly, did you try it anyway or is it part of your normal practice to get the department to come in on your side to file a brief and, you know, was that part of the idea Mary? 

Mary McCord [00:32:03] We did not seek this in this case, partly because we were in state court very purposefully-- 

Harry Litman [00:32:08] What percent -- are you mainly in state court, by the way? 

Mary McCord [00:32:11]  No, we are in state and federal courts in many many states across the country. We've been in almost every circuit by this point because this is just one of the cases we've brought and we've we've brought many others and we are litigating now in the 6th Circuit in a case that does involve the U.S. government that is--

Harry Litman [00:32:29] That was the one I rem -- is this the Nagarwala case?

Mary McCord [00:32:32] Yes, yes. 

Harry Litman [00:32:32] Yeah, this is an unbelievable case. And here you really are weeding in their garden you could say. I'm sure. I wonder if we should have a rebuttal panel but an amazing case -- Who can sort of set that the tone for us on that one? 

Josh Geltzer [00:32:51] Well I'm happy to start. So, to give a little bit of the backstory here, for a couple of decades there's been on the books a federal law criminalizing the practice of female genital mutilation and a couple of years ago the first major prosecution was brought under it in the Detroit area. A number of defendants, a number of years of activity. 

Harry Litman [00:33:14] This was a federal case?

Josh Geltzer [00:33:14] Correct. Federal prosecution and the defendants in resisting the charges, specifically the female genital mutilation statute charges, made an argument in the District Court that the law was unconstitutional and a district judge ruled in the defendant's favor. Found that the law that had been passed exceeded Congress's authority under the commerce clause as well as under the treaty clause combined with the necessary and proper clause. 

Harry Litman [00:33:45] So not a religious claim. Their argument was just no legislative power. Like a Lopez case. 

Josh Geltzer [00:33:53] That's right. That's right. And the Department of Justice filed a notice of appeal as you would expect when a federal judge has invalidated part or all of a federal statute. And after some a number of extensions--. 

Harry Litman [00:34:07] Not only would you expect -- this is what-- I can't think -- when a district court invalidates a duly passed congressional statute. That's that's appeal. The solicitor general has to approve it but it's almost an automatic kind of thing you have to defend. 

Josh Geltzer [00:34:22] So that's sort of their job right. That's what the taxpayers pay for among other things. But it's to defend the constitutionality of federal laws. And after a protracted delay this Justice Department indicated that it was not going to be defending on appeal the constitutionality of this law. That it believed that it had no plausible arguments to make in defense of this law. And this struck us as wrong, we'd followed this case since seeing the district court's ruling. It strikes us that the law--. 

Harry Litman [00:34:54] Now when did this happen? 

Josh Geltzer [00:34:56] The letters...they're called 530 D letters, the statute that requires the executive branch to inform the Senate and the House when the Executive Branch -- it will no longer be defending or implementing a federal law because of a belief that it's not constitutional or some other grounds. And this was a few months ago now that those 530 D letters were sent. 

Harry Litman [00:35:14] But the prosecution itself in Michigan had been before 2016 is that right?

Josh Geltzer [00:35:20] You know, the investigation began before the change in administrations. The charges were brought after the change in administrations and the defense of the statute by the Justice Department in the District Court was under the Trump administration who was under the Trump Justice Department. 

Harry Litman [00:35:36] I mean,  such a reflexive thing to do that, yeah, right. 

Josh Geltzer [00:35:38] Right. It's Assistant U.S. Attorneys wanting to keep working through a prosecution that they had surely worked very very hard to put together that advocacy groups had been urging for a long time that they wanted to see this law utilized and this sort of way to make a statement beyond mere rhetoric about what an awful practice this is--

Mary McCord [00:36:01] And we know that the bureau had been very very intent in investigating, had been ,you know, really looking for opportunities to investigate FGM because it's such an abhorrent practice so lot of resources and efforts of the federal government had gone into this--

Harry Litman [00:36:15] What's FGM? 

Mary McCord [00:36:15] Female Genital Mutilation. Right. 

Josh Geltzer [00:36:15] So just to zoom forward, that's where we at ICAP have gotten involved and we are representing the U.S. House of Representatives in moving for the House to intervene in the case for the limited purpose of doing what the Justice Department should be doing and defending the law. 

Harry Litman [00:36:36] Well OK. So that that last bit is really interesting. Annie, maybe you can speak to that. I mean normally you know, the Congress passes something and then it's to the Executive to enforce. Is this a maneuver you've experienced or tried before? Have you been involved in trying to make what the lawyers would call a standing argument, an argument that ICAP has a right to be in there -- or really that the Congress has a right to be in there arguing for the law when the department will not. 

Annie Owens [00:37:07] Sure, I personally have not been involved in that kind of litigation but I will underscore that it is exceedingly rare for the Department of Justice to refuse to defend a law passed by Congress when it struck down on constitutional grounds. You almost never see that. 

Josh Geltzer [00:37:25] Annie I wonder if you could say a word from your time in the Solicitor General's office. How would you characterize the bar for trying to defend federal law. 

Annie Owens [00:37:33] I would say that the default presumption is that it is the Solicitor General's job to defend that law. And there really have to be strong strong arguments that the law itself is not constitutional. 

Harry Litman [00:37:48] Of course it happens. This happened with Sally Yates, right? And the immigration order.

Annie Owens [00:37:53] And it happened in the DOMA case. But I feel like we are seeing it a lot lately. It's happening in the ACA case in Texas right now. 

Mary McCord [00:38:04] Well, certainly, you know, there's been a portion of the Affordable Care Act, otherwise known as Obamacare, has been challenged by a number of states and the Department of Justice changed its position in that case from defending the statute to agreeing with the states that at least parts of the statute will entail basically the whole statute had to be invalidated on constitutional grounds. The House of Representatives also intervened in that case and their intervention and other arguments are being argued today. So it's another situation where the Department of Justice changed positions which again is not unheard of. 

Mary McCord [00:38:43] I mean, when administrations change sometimes that can happen, but usually the department proceeds with great caution in that because, you know, the integrity of the department, the integrity of the law and the rule of law is based on not just it changing with political whims, right? And so it's very rare to see this even though oftentimes with a change in administration political people coming in might think, "Boy if I have been here when we started litigating this, we might have litigate it differently." But they don't, they don't necessarily change up positions. 

Harry Litman [00:39:17] But so and this is really I just want to emphasize this from having been involved in some things. I mean, it's it is close to unheard of and it's nothing like just taking the position that something is unconstitutional. You really have to have no good faith reasonable argument. What I recall is the many many people went to law school studied the case in which the Supreme Court struck down a flag burning statute that Texas had passed Texas versus Johnson. The next month, the federal government came in and basically passed the exact same statute. So under Texas versus Johnson that statute was unconstitutional as the day is long. But the Solicitor General's office felt exactly this obligation that Mary is speaking about and went forward and went to the courts and tried to defend it and got you know the Solicitor General, Ken Starr, got his head handed to him. But it was it was -- by discharging the responsibility that you have to Congress, basically, to make any reasonable argument in favor of the constitutionality of a congressional provision. All right. But so back to Nagarwala. What's now on your plate? Are you guys the main people sort of carrying forward the constitutional argument and is the department just completely AWOL on it. Where do things now stand? 

Josh Geltzer [00:40:47] I prefer a department that was AWOL on this rather than what we have, instead the Justice Department has opposed the House, even intervening in the case for the purpose of making arguments to the court about why this law is constitutional. . 

Harry Litman [00:41:03] Is unconstitutional. 

Josh Geltzer [00:41:04] Well the House wants to make arguments for its unconsitutionality. 

Harry Litman [00:41:07] But the DOJ is coming in and making--. 

Josh Geltzer [00:41:10] The DOJ is saying A.) The law is unconstitutional and B.) the House shouldn't even be allowed to argue to the contrary in front of the 6th Circuit. And that motion for the House to, at least, make those arguments is at least, as of our recording, pending at the 6th Circuit. 

Harry Litman [00:41:22] Well you do strike me as extremely lucky. Maybe that's part to do with Georgetown but what a sort of on the one hand nimble, on the other hand, kind of progressive little law firm or growing law firm you are.  Let's just, we're I guess near the end time but I wonder if we could just kind of go down from, you know, Seth back to Amy and ask you, "Would you contemplate now ever returning to the Department of Justice?" There are some advantages to the flag and the pin. Or do you do you feel now that those days are gone? 

Nicolas Riley [00:42:04] I think those days appear to be gone for right now but that doesn't mean they couldn't return under the right circumstances. I don't think I would rule out returning to government under the right circumstances. The question is just, for myself,. I think where I'm best positioned to pursue the goals I have for making the criminal legal system better for the people in this country if that's within the Justice Department and it becomes a place where it's effective at pursuing the kind of reforms that I believe in. Then I think that would be a possibility for now. I think we on the outside our organization and others that do this kind of work are much better positioned to do that. 

Harry Litman [00:42:46] Let me just follow up with you briefly, you must still have friends and special. No? Are they continuing to sort of, you know, toil with it with morale issues? Is it a hard place to be these days, best you can tell? I don't want to make life difficult for any of the people who I know who are currently working there and I won't--

Harry Litman [00:43:07] I didn't ask to name names. 

Nicolas Riley [00:43:08] --but I think it remains a challenging place. I think particularly more than anything because of the personnel shortages they've had. There was a hiring freeze in place for a very long time and as attrition occurred they weren't able to hire to fill those gaps as a result for the consent decrees that are and have been in place. You know there remains a group of very dedicated and skilled lawyers who are trying to pursue the goals of reforming these police departments and achieve the outcomes intended by these consent decrees and have been facing the challenge of trying to do that with very limited resources. 

Harry Litman [00:43:48] Amy. 

Amy Marshak [00:43:49] Sure. So in terms of whether I see myself back in government I was not in the Department of Justice for nearly as long as Mary was but I love it. 

Josh Geltzer [00:43:57] I'm sure she appreciates that characterization (laughter). 

Amy Marshak [00:44:02] I love the opportunity to go to work every day as a career attorney and do interesting and meaningful work, even at the working level so much of what you do is the kind of things you want to spend your day thinking about. That said, I had exactly that opportunity at ICAP, that we get to do such interesting work and perhaps not as interesting to this audience but the work of being at a law school is also very fun. We work with students, we get to participate in various moot courts, going on at the university and be part of the law school environment. And so that opportunity has been wonderful as well. So I wouldn't say that -- I have a hard time envisioning my future without a return to government because it is what I always saw myself doing. But I'm certainly not a rush. It's been such a great opportunity to be here. 

Harry Litman [00:44:48] So you were in national security.  Was Mary your boss? 

Amy Marshak [00:44:51] Mary was my boss. I was one of her counsels for a period of time toward the end of our time there. Yes. 

Harry Litman [00:44:57] Annie. 

Annie Owens [00:44:57]  I would certainly return to the Justice Department under the right circumstances. DOJ has always really felt like home to me. They're great lawyers. Wonderful career people who do great work. They've always traditionally had some modicum of independence from the White House and politics. And that was something that I really cherished about it when I was there and I think in the future, again under the right circumstances, I would consider going back. 

Harry Litman [00:45:32] Same question to you Nick. 

Nicholas Riley [00:45:33] Yeah I think my answer is pretty similar to the ones that Amy and Annie gave which is, you know, I really did love my time at the Justice Department. It's where I learned how to be a lawyer, really, and, you know, from the perspective of being in a litigating position which I was. You know this, too. There's there's no greater privilege than standing up and court saying I'm here for the United States and that's something that I really took great pride in. 

Harry Litman [00:45:55] You're still here they just don't know it right? 

Mary McCord [00:45:56] So I'm older than anyone else on this panel and anyone else at ICAP. Except maybe you Harry.  Maybe you. And so I don't really foresee a return to government service. I'm enjoying very much being able to, like I said, continue my public service from a different vantage point. I see ICAP as as long outliving this administration. As we've noted in some of our examples, even though some of our litigation is against the U.S., much is not. I mean, the Charlottesville case had nothing to do with the U.S. government, it was brought in state court. We've been using those theories to do additional work and help local jurisdictions to combat extremism in their communities in a way that's legal and respects First and Second Amendment rights. We've been working on criminal justice reform which is almost entirely in the States it's not directed at federal system which is has its own problems but is much much better than many of the state systems. So there's actually I didn't realize it in my, you know, over two decades at DOJ how much real work there is to be done outside that, you know, to just address a lot of problems that are happening in the state. So I'm gonna be here. I'm going to be manning the ship. I'm going to stay here and I will wish well to my colleagues if they do take that foray back into government. 

Josh Geltzer [00:47:16] Well, as usual, my colleagues have said it better than I can say of myself, which is I was honored to work at the Justice Department and I could envision it at some point going back to a Justice Department. But for now this this work has been so rewarding and, as I hope you've been able to get a sense of Harry from this conversation, to get to do it with people who are so dedicated to this mission of protecting constitutional rights and bring to it both that background from executive branch experience but also real creativity and ingenuity and how they approach this litigation that is a treat every day. 

Harry Litman [00:47:50] You guys are one lucky one lucky group, I gotta say. 

Question 1 [00:47:54] Well, so I guess this is a timely question. I wonder if you could comment/explain to us what happened regarding the census case and all those attorneys who are no longer involved. What is going on there? 

Mary McCord [00:48:10] So I should first say that, you know, we did represent the House of Representatives in the census case in the Supreme Court. So we co-counseled with general counsel for the house. And so we need to be a little bit careful about what we say going forward because it appears now that there is a new team that there will be additional litigation in the district courts and we expect to be involved in that litigation. That said, all of us I think were there long enough to know that when you see a full change in team that means one of a couple of things and one of one of those things is that the people that were previously involved in the case no longer wanted to be involved in the case or couldn't for some reason and certainly, in this case, there were representations made at all the levels of the litigation including in the Supreme Court about deadlines and about certain positions which might have to be sort of pulled back or retracted somewhat by if the case does move forward. And so that would be a very difficult thing for that first set of attorneys to do. Nick of course was in the civil appellate division and so was involved in lots of litigation over the course of his time in DOJ that involved, you know, civil litigation like we're seeing here. So I'd be curious of his views on it. 

Nicolas Riley [00:49:24] Yeah, I mean, I I would be speculating like anyone else. And have no idea what's actually happening inside the Federal Programs Branch which is the branch where where that change had been made. You know, I will say that it's not, just from reading the press coverage of this particular change, it's not that uncommon. I mean it's certainly not frequent but it's not that uncommon for attorneys to remove themselves from a case when when the department has changed its position on things and that happens in many cases that are much less high profile and much less politically charged in the census case. So, you know, again,  I agree with everything that's been said and, you know, I think much of the press coverage has done a fine job of speculating but it is just that speculating. 

Harry Litman [00:50:02] I want to add to this though because it's true that's not so unusual except this, in my life, I wonder if anyone is --  it seems unprecedented to me. They not only -- it's not just the teams or individual attorneys it had been in one division and several federal programs, it's now being taken into commercial lit. That's much more--it seems like that means everyone going up from the line of attorneys to the supervisors in federal programs were either taken off or saying we want no part of this. I mean, literally. Has anyone ever seen something like that occur? 

Josh Geltzer [00:50:42] I haven't. And I just wanna emphasize, it's unusual and more than unusual. In other words, as Mary and I were talking about earlier. Part of why lawyers develop specialties at the Department of Justice and, elsewhere frankly, in the practice of law is so that they can think back to how cases were handled before. Or at least what issues came up and so they can do their best to see into the future and look ahead and try to. Especially if you're representing the federal government. Think through what does it mean for DOJ as an institution what does it mean for the executive branches as an entity what does it mean for this repeat player over time to make these sorts of arguments or do this sort of thing or make these sort of representations and the idea of bringing in a clean team so to speak to take over this case at this point. In addition to being unusual strikes me as running a real risk of losing all of those benefits of specialization and expertise all for the sake of some push, apparent push, on on this case after many of us thought and hoped it was resolved. 

Jennie Josephson [00:51:44] You were the Institute for Constitutional Advocacy and Protection. So my question is, "How is the Constitution doing these days?" And what should we be doing, what can people who listen be doing to protect it? 

Annie Owens [00:51:59] Oh I'll take the second part and not the first "How the Constitution is doing" is a very weighty question. But in terms of what people can do I think understanding what is unusual about this moment and what is ordinary change of administrations, ordinary politicking, is really important because there are some norms that are being transgressed that aren't rules written down. There not statutes. There are a lot of what makes the presidency the presidency is based on an understanding of institutional practices that aren't forced upon anyone but are part of, sort of, the unwritten constitution -- the way our government works. And so understanding where those are being crossed. What makes the moment unusual? I also think trying to avoid getting news fatigue is probably helpful. There are so many big things that have happened that don't even make the news our Nagarwala case is one of them. That would be a big deal, I think, in other times and I think most people hadn't heard of it because the constant press of new news going on and so trying to do your own best to analyze what is important what is different and what is sort of everyday is I think an important thing. 

Seth Wayne [00:53:03] I would say, speaking specifically about the criminal legal system, the constitutional protections have been weak in a lot of ways for folks in the criminal legal system for many years even predating this administration. And the reality is much of the abuse that occur, occur locally, like,  hyper locally. So I would encourage folks, particularly folks, the kind of folks who would listen to this podcast, who are unlikely to have personal interactions with that system to become aware of how those issues play out on their local level. To become informed about the people involved. That being judges and prosecutors, particularly if those folks are elected, and become involved with those issues locally and and engage with folks who are doing that work on the ground where they live. 

Mary McCord [00:53:52] Just to chime on to that we just filed a brief on Friday in the 5th Circuit again showing that these issues are hyper local but also are things that both people of Republican and Democratic leanings can agree on. We filed a brief in a case in the 5th Circuit in which the local D.A. in New Orleans was using fake subpoenas to subpoena victims and witnesses to crimes who were reluctant to cooperate with prosecutors to subpoena them to come and meet with them outside of court. And these were completely created by the district attorney. They weren't real they didn't follow the state process the state actually has a law that allows you to seek a subpoena from the court and show good cause and reason for getting that subpoena. And they were completely outside of that. So we brought together for example Mike Mukasey the former Republican appointed attorney general and Larry Krassner the current sitting elected district attorney in Philadelphia known for his progressive views. Both are signatories among three dozen other prosecutors current and former both political stripes agreeing. That's just wrong. 

Harry Litman [00:55:01] You guys are one lucky one lucky group. I gotta say. Thanks very much. We're out we're out of time but Josh, Mary, Amy, Annie, Nick, and Seth. And to your three nonfed colleagues both for being here today and for the work you're doing. Please join me in thanking them. (Applause). 

Harry Litman [00:55:28] Thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter at Talking Fred's pod to find out about future episodes and other feds related content. And you can also check us out on the web at talkingfeds.com where we have full episode transcripts and at talkingfeds.com/news for information about this series in Washington D.C.. Submit your questions to questions@talkingfeds.com whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in. And don't worry, as long as you need answers the feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos, and Rebecca Lopatin. David Lieberman is our contributing writer. 

Harry Litman [00:56:50] Production assistance by Sarah Phillipoom, Michelle Bo Lieu and Courtney Columbus. Thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dolito LLC. 

[00:57:09] I'm Harry Litman. See you next time.