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Brigid Bergin: It's The Brian Lehrer Show on WNYC. Good Monday morning to everyone. I'm Brigid Bergin, senior reporter in the WNYC and Gothamist newsroom, filling in for Brian today. Coming up on today's show, we'll talk about the primary for New Jersey's 11th congressional district. Now that Mikie Sherrill is governor, who will represent those New Jerseyans in Congress? It's a packed primary field, and the election is coming up this Thursday.

We'll also talk about the future for Haitians living in the United States under Temporary Protected Status, or TPS. President Trump signed an executive order that goes into effect tomorrow revoking TPS for Haitians who could now face deportation back to a country currently facing a political crisis and dangerous levels of violence. We'll end with a conversation about the roles and responsibilities of citizens in the face of an authoritarian government, and particularly, how people paying close attention can relate to people who have the ability to look away.

First, we're going to start things off with legal analysis of some of the top stories in recent days. Today is, of course, Groundhog's Day. If you know the movie, you might feel like you have heard some of these stories before. There are the ongoing questions about what is and what is not happening when it comes to investigating the shooting deaths of Renee Nicole Good and Alex Pretti by ICE officers in Minneapolis. There was the latest release of files in the Jeffrey Epstein case, some 3 million pages of documents featuring more high profile names, including President Trump's.

There was the FBI's move to execute a search warrant at the Fulton County, Georgia, elections office last week, related, reportedly, to the 2020 elections, but also on hand for the raid, National Security Director Tulsi Gabbard. To help us unpack the latest on these ongoing stories, we're joined by Andrew Weissmann, professor of practice at NYU Law School, co-host of the podcast Main Justice, and on the board of the nonprofit daily digital law journal Just Security, which he also writes for. He also served as lead prosecutor in Robert Mueller's special counsel's and co-authored the book The Trump Indictments: The Historic Charging Documents with Commentary. Andrew, welcome back to WNYC.

Andrew Weissmann: It's always a pleasure to be here.

Brigid Bergin: I want to start with what is, or as I said, what is not happening in Minneapolis. It was just over a week ago that ICE agents shot and killed ICU nurse Alex Pretti. For Just Security, you wrote a post about the 10 questions the Trump administration needs to answer about Minnesota. You frame it as questions both conqueror and journalists should be asking. Before we dig into those details, I'm just wondering, who do you think in the Trump administration should be answering these questions? When I read the post as a journalist, not as a lawyer, I thought, "Who would be the target of this interview, or who would be the witness on the stand?"

Andrew Weissmann: Sure. That's a question that could be asked of numerous people. It could be asked obviously of the president. It could be asked of the vice president, of Stephen Miller. I think all three of them seem to be very heavily involved in the decision about what goes on there. Obviously, it could be asked of Mr. Homan, who is now reportedly taking charge of what is going on in Minnesota, the head of DHS, who's a cabinet-level secretary. There are numerous people who could answer these questions that remain unanswered.

Brigid Bergin: Listeners, I want to invite you to be part of this conversation. We can take your calls for Andrew Weissmann. Do you have questions about the legal investigation into the deaths of US citizens Renee Nicole Good and Alex Pretti, or do you have questions about the legal implications of some of the other big stories of last week? The arrest of journalists in Minnesota, the release of more Epstein files, the raid on a Georgia elections office?You can call us at 212-433-WNYC. That's 212-433-9692. You can also text that number with your questions for my guest, Andrew Weissmann, professor of practice at NYU Law School, co-author of the book The Trump Indictments: The Historic Charging Documents with Commentary.

Andrew, among the questions that you write about, you ask about comments made by administration officials that the officers in both instances were following protocol. This idea that before there has been any complete investigation, that there are officials who've already come out saying they have been following their training, they've been following their protocol. What is underlying that question? What are you trying to get at there that would help people understand what we saw in those videos?

Andrew Weissmann: I think there are a number of things. One is the need for there to be an independent and full investigation. One of the questions that I have, and I think it has just not been answered, is because of a lot of blowback from people who are protesting, understandably, the Pretti murder, we now have the announcement from the department that there will be some sort of investigation. This is what's left unanswered, which is, what is the nature of that investigation? What exactly is going to be investigated?

You'll remember that there was an investigation announced with respect to the Renee Good killing. The investigation was reported to be of Renee Good and her widow. There's an ongoing investigation of the governor and the mayor. That's not, I think, what people thought of when they thought there would be an independent and fair investigation. The questions are, what is the investigation going to be with respect to Mr. Pretti? Is it of the two people who ProPublica has now identified as the ones who fired at him? Second, will there be the same investigation for Renee Good? In other words, why did the department announce that it was going to do one for Mr. Pretti but not for Ms. Good?

I find that inexplicable, because as somebody who was in law enforcement for over 20 years, it is standard operating procedure to have these investigations, even when you have a feeling that the shoot was actually good, that the person was justified. Here, before our eyes, there's substantial questions. Then the final thing is, in both cases, both Mr. Pretti and Ms. Good, why is the federal government not allowing the state to do its own investigation? Why are they keeping the evidence from the state?

I can only think of one reason, I'm sorry to say, and that is if you're trying to do a whitewash and you don't want an independent investigation, that is why you would keep it from the state. I can't think of any other reason. It would be also fairly normal and the thing that happens all the time to make sure that there is that investigation. In fact, if you're the federal government, wouldn't you want people to have that comfort that there is that kind of independence?

If you are an officer who engaged in shooting someone and you thought it was justified that you did fear for your life, imminent harm for you or someone else, wouldn't you want the public to have that independent investigation so that your name would be cleared? I think all of those are very, very legitimate questions that just have not been answered by anyone in the government.

Brigid Bergin: Sure. You mentioned that new reporting over the weekend from the nonprofit news site ProPublica, which identified the two officers who were involved in the shooting death of Alex Pretti, a Border Patrol agent and a Customs and Border Protection officer. Understanding who was involved seems like a pretty fundamental part of understanding exactly what led to Pretti's shooting death, but it raises, I think, some other questions also about the conduct of these officers, concerns that we've been hearing repeatedly about the way these officers are conducting their activity on the ground. Maryland Representative Jamie Raskin made this point on CNN Yesterday.

Jamie Raskin: Not be anonymous. They should be identifiable. They have to have rules of engagement that don't allow them to terrorize and intimidate, harass, and assault US citizens and other people.

Brigid Bergin: Andrew, what other concerns do you have about both what we know so far about who these officers were, and how does that feed into understanding the scope of these investigations?

Andrew Weissmann: That's a great question. Assuming the reporting is correct, we now have the identity of the three agents involved in either the Ms. Good or Mr. Pretti shooting. The thing that struck me is that all three are not new agents. That, to me, if they're new, the question is clearly, what is the training protocol, et cetera? Here, you have people who have been on the job for quite some time, and you really then can't just say it's a question of they're new and there may be a flaw in the training. You do have the concern that not only is there inadequate training, but it's not the proper training.

Let me just be a little bit in the weeds on that. You can use deadly force in law enforcement if there is imminent danger to your life or to someone else's life? Imminent danger. That's an issue that, unfortunately, I had to deal with when I was general counsel of the FBI. Here, I would ask people to focus on a few things. In the Ms. Good killing, there were three shots that we know of that are reportedly, it's one of the two of them that killed her. The second and third shot were after her car and Ms. Good were past Agent Ross. There's a substantial question of what is the imminent danger that he would feel with respect to either the second or third shot.

With respect to Mr. Pretti, it's a very similar issue. What could be the possible imminent danger when he is surrounded by multiple agents, he is tackled by multiple agents, he is beaten by an agent that you can see on the video? I'm sure people listening to this have seen that. Then he is repeatedly shot as he's lying immobile on the ground. What is the imminent deadly force that someone anticipated during, not just the first shot, but all the way through?

To me, those are substantial questions. It's the reason that there that I find it particularly troubling, and that's putting it politely, that the state does not have access to the evidence. I just want to remind people, the state having access to the evidence doesn't mean that the state takes it and the federal government then loses control of it. This is sharing so that there's equal access to that information. To me, that is a substantial question that has not been answered.

Brigid Bergin: Andrew, is the concern there that you would suspect something that the state might bring charges that the federal government would not bring and not hold these officers accountable in the same way?

Andrew Weissmann: Absolutely. That is one concern. Even before that, let's just assume that we want to give due process to each and every agent who was involved. There should be an adequate and thorough and independent and fair-minded investigation. Let's remind ourselves that not that long ago, the current Trump administration announced their conclusion as to what happened in both shootings. They labeled both victims as domestic terrorists. Stephen Miller labeled Mr. Pretti as an assassin. Now we're supposed to believe that those same people are going to conduct an independent investigation when the senior people in the administration have already concluded what happened and that the shooting was justified.

The deputy attorney General, Todd Blanche, pointedly said that he was not going to use that language because using that language would prejudice an investigation. What he didn't answer was he might not use that language, but given that other people in the administration far senior to him, and he's the number two in the Department of Justice, have used that language, how is it that their language doesn't prejudice the investigation when he said if he used it, it would prejudice the investigation? All of that is substantial reason why you would have a state investigation here.

Brigid Bergin: For those of you just joining us, this is The Brian Lehrer Show on WNYC. I'm Brigid Bergin, senior reporter in the WNYC and Gothamist newsroom, filling in for Brian today. My guest is Andrew Weissmann, professor of practice at NYU Law School, and co-author of the book The Trump Indictments: The Historic Charging Documents with Commentary. We're taking your calls on both what's happened on the ground in Minnesota, the release of the latest Epstein files, the investigation into the Fulton county elections office. I want to start things off with Yana in Brooklyn. Yana, you're on WNYC. Thanks for calling.

Yana: Hi, it's nice to speak with you. I'm also an attorney. Nothing to do with this. I'm not a litigator, but I dabble a bit in immigration just on a pro bono front. My question may be too specifications on immigration. I'll try to make it more general. I'm facing a lot of motions for pretermission in court where they're basically trying to cancel asylum cases to send people to certain countries that they've never been to. Just in general, entering houses without warrants.

It seems like what the Trump administration is trying to do is just cancel the concept of asylum in this country and possibly just close down immigration. I'm curious what your thoughts are on that front and if there are legal protections that we have against that. Maybe this isn't your specialty.

Brigid Bergin: Yana, thanks for the question.

Andrew Weissmann: That's a terrific question. It raises so many issues. One thing I would note is that the administration does seem to be in favor of immigration if it's people who they view as the right kind of people with a certain race and from certain countries. I think there's a deep racial component to what the administration is doing. You can just see that in the numbers and who is being treated this way.

One of the things that you raised that is something that I do know about is you raised this issue that a whistleblower has revealed that within the Department of Homeland Security, they are taking the view that they can, with simply a decision or an order from within the executive branch, no judicial order, they can go into someone's house to arrest them. In other words, just somebody within the executive branch can just say, "You know what? I think you should arrest this person." They can just go into their home without any judicial warrant.

The reason this is an area I know about is I teach the Fourth Amendment. Matter of fact, right after the show, I'm going to go off to NYU and teach my students about the Fourth Amendment. Under the Fourth Amendment, which protects everybody in this country, regardless of their status here, whether they're a citizen or not, you cannot go into someone's home to arrest them without a judicial warrant. You have to get that from an independent body.

This ties into what Brigid and I were just talking about, this idea that there should be a state investigation of the two murders in Minnesota. This idea that the administration has to be accountable to checks and balances there. It's the state investigation that whatever it finds, the idea is that it should be independent. Here, we're talking about the idea that the judiciary, not the executive branch, is the one that can permit or deny access to your home, which is the most protected area under the Fourth Amendment, which protects you from unreasonable searches and seizures.

Brigid Bergin: I want to go to Chris in Bloomfield, New Jersey. Chris, you're on WNYC.

Chris: Hi. Mr. Weissmann, I had a question. President Trump seems to be suing people left and right, news organizations. He threatened Trevor Noah to sue him, I guess, for jokes that he made last night on the award show. My question is, are people able to countersue him? In cases like this where-- these are frivolous lawsuits, but he seems to be threatening people and getting away with things. I just don't understand why he's not being countersued.

Andrew Weissmann: That is a really terrific question. You may remember that Eugene Carroll did sue the President in two separate lawsuits. The one that was easier for her to prevail was the one which was based on his conduct when he was not the President of the United States and was just back to being a citizen. That is because then the normal law of defamation applies. Also lying about the, this was her claim, lying about the sexual assault that the jury found that he had committed.

When somebody is sued and they are President, there are a number of hurdles that you have to get through, because the President can claim that he is doing things in his role as president as a part of his official conduct. This is the thing that it strikes most people, including myself, even people who are not lawyers, as very strange that the President, as president, denigrating somebody like Eugene Carroll, how is that within his official duties?

The other side of that coin is people say, if there's an allegation, even if it's of a personal nature made against a sitting politician, they're allowed to deny it as part of their official conduct. If they're doing something as part of their official conduct, it enjoys a form of immunity, and so it can be very difficult. Also, one of the bodies that initially determines that is the Department of Justice. If the Department of Justice is beholden to the administration, which right now I think we're seeing zero separation between the department and the White House, it makes it even harder. That's one of the reasons.

The other reason is just whether you want to take that on. In other words, going through all of that is the thing that you have to think, "Do you really want to take that on and do it? How much of a burden do you really want to share for what you could also at times, just ignore. I agree with you that it seems very lopsided, especially when the President has so much power, and a lot of the settlements that we are seeing appear to be a form of either extortion or a way of essentially appeasing the president by giving money out.

We've seen that in media companies, we've seen it in law firms in all sorts of ways. People have made that allegation, even with respect to the Melania movie, as to why Amazon would be doing that movie. It raises lots of issues where you have the easy specter of abuse of power.

Brigid Bergin: We need to take a short break. We'll have much more with my guest, legal analyst Andrew Weissmann, former assistant US attorney and former lead prosecutor in the Mueller probe into President Trump. Plus, your calls and texts coming up. Stick around. We'll be right back.

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Brigid Bergin: It's The Brian Lehrer Show on WNYC. I'm Brigid Bergin filling in for Brian. Today. We've been talking with legal analyst Andrew Weissmann, former assistant US attorney and former lead prosecutor in the Mueller probe into President Trump. A couple more questions on Minnesota before we get into the other big stories of last week. Andrew, one of the things you wrote about was related to the fact that in the Alex Pretti case, he was carrying a gun, which he never withdrew. You ask another provocative question, which was, if having a gun at a protest is impermissible, as FBI Director Patel has said, does that apply to the armed people who attacked the Capitol on January 6th where the Capitol Police have been justified in shooting them? Is that something you think any of the officials being called to testify before Congress, for example, will be able to answer?

Andrew Weissmann: I think that what's going to have to happen there is they're going to have to walk back the statement by the FBI director. He basically said, I'm going to paraphrase that, you just can't show up at a protest with a gun. You will see that people who are gun rights advocates have really pushed back on that form of attack, saying, "How could he possibly carry a gun?"

Now, people should know that Mr. Pretti was licensed to carry that gun and it was holstered. Everything about it was legal under the law. He also has a constitutional Second Amendment right. Many people would disagree with the way the Supreme Court has interpreted the Second Amendment, but that is the law of the land. This administration is a strong believer in the Second Amendment rights. If you believe in it, you can't suddenly turn around and, no pun intended, weaponize it when it's convenient.

I was struck by the irony of Kash Patel saying that about somebody, one person showing up with a lawful weapon that was holstered when we know that so many people who came to the Capitol on January 6th-- By the way, of course, there were people who did come who peacefully protested. I don't want to paint with a broad brush here, but they're also were thousands-- I should hundreds of people, I think 1,600 people who were convicted of various offenses, many with weapons and many who used as weapons in attacking the Capitol Police.

You didn't see the Capitol Police just wholesale firing on all of those people. That's because, as many former agents who I worked with said, your job is to de-escalate. Your job is not to overreact, and also to understand people's First Amendment rights, and to deal with that in a responsible fashion. I think the question that we got just a few minutes ago about using this paramilitary group to infringe on people's rights, it's very hard not to draw that conclusion in terms of what is going on in various blue states and blue cities around the country, and notably not in red cities.

Brigid Bergin: Let's go to Janssen in Montclair, New Jersey. Jansen, you're on WNYC.

Janssen: Hi. I was just curious. Previous to Trump taking office, I took for granted enforcement of judicial rulings. What are the actual rules or the chain for enforcing decisions by whatever court makes a decision? It seems now that they choose to either follow it or not follow it. If Congress is going to ignore court rulings, what recourse is there?

Andrew Weissmann: That is a terrific question. What I would say is Supreme Court rulings are ones that we in general have seen greater adherence to. At the district court level, the district court judges, Republicans and democratically appointed Democrats who are appointed to the bench, including judges appointed by Donald Trump in his first term, have repeatedly, repeatedly talked about and found that their orders were not being adhered to. They have questioned the veracity of the lawyers appearing in front of them. The question is, what can be done about it?

The judiciary doesn't have a military at its beck and call. They count on the fact that people will abide by the rule of law. It is the case that if they find somebody in contempt, in other words, they have violated an order, the courts can do things. If it's a lawyer who has done that, they can refer them to the bar and they can be disbarred. They can lose their license. By the way, that threat worked in the case of Lindsey Halligan, who was the person who stepped in as Acting US attorney in the Eastern District of Virginia and oversaw the indictment of James Comey and Letitia James.

Then she still stayed in office after a federal judge had found that she shouldn't be there. When she kept on having her name on the papers after a judge had said that she is not validly the US attorney-- Ultimately, two separate judges said it's a form of fraud that she is committing. Any attorney who appears in court having her name be the US attorney is subject to disciplinary action. That led her to step down and leave the office. There are soft powers.

One of the things that I have been somewhat dismayed by is, just to return to Minnesota, is the chief judge there issued an opinion just a few days ago where he pointed out the scores and scores of cases that he lists in a judicial opinion of the administration, ignoring in the immigration context, court orders. In any normal time under a Republican or Democratic administration-- I've served in both. I served for 21 years in the Department of Justice in both Democratic and Republican administrations.

In any normal time, any one of those would cause just enormous effects within the department. You're the Department of Justice. Your whole goal of being there is to do justice. It's not to violate court orders. Here, I think it's not enough, if the judiciary is seeing that, to just write about it. I think that's why you get, I think the very valid question of this listener, which is, we see you calling it out, but what are you doing about it?

One of the things I learned during the Mueller investigation is you have to really treat people the same. If somebody in the administration is doing something that is against a court order, you need to call it out and not worry about the blowback, not worry about whether you're going to be attacked by the president or his minions. You have to do your job. I think that really is the next step that judges have to do more than simply call it out.

Brigid Bergin: Andrew, as you said, in normal times, that would be how people would be operating. In normal times, we wouldn't have so many stories that we would want to try to talk to you about, all in one segment, knowing that you have to go teach a class on the Fourth Amendment. In just about a little bit over five minutes, I want to quickly shift gears to talk about the latest release of the Epstein files. Just in terms of how these documents were made public, including unredacted names and photos, what does this tell you about the protocols being followed in the Justice Department?

Andrew Weissmann: I think it's pretty high handed, because the Congress has passed a law that required certain things to be done that just have not been done. Todd Blanche in his press conference basically said, "And we're done." Other than we're going to give a list of how we did the redactions and we're going to comply with that. It will be belated, but they will comply with that. One of the things that he said, let me give you one example of why I think there's a real problem here is he said, "We're going to rely on deliberative process, a privilege to that internal documents, and we're not going to turn those over."

The law that Congress passed said you must turn those over. That's just him announcing at a press conference that we're actually not going to follow the law. What's going to need to happen now is that members of Congress are going to need to sue to enforce that law. In other words, it really goes to our last conversation, this idea of being able to act if you're in the Department of Justice with impunity, as if Congress is not a co-equal branch of government and you can ignore a congressional statute. That is a substantial issue.

The other thing that I noticed was I would have expected, if there was nothing to hide, and you are the President of the United States, that there would have been an affirmative statement from Todd Blanche that said every single document and every single image that relates to the President has now been disclosed. The fact that that was not said, to me, was a bit of a red flag that there wasn't that affirmative statement.

It's the kind of thing that if it were me and I had not done anything wrong and I had nothing to hide, that would be the first thing I would want out there. I would say like, "Please prioritize this and make sure everyone knows that whatever issues we have, whatever disputes we may have with the law, that's not one of them."

Brigid Bergin: I want to bring in Greg from West Babylon. He has a question about the legal fallout, which I think you touched on, but just to put a very fine point on it. Greg, go ahead. You're on with Andrew Weissmann.

Greg: Yes. Hi. Thank you for taking my call. My question was basically, with all the release that we have so far, and hopefully more release of the Epstein files and people being named, if something is found that they did something wrong, who's going to prosecute this?

Andrew Weissmann: That is a great question. The answer right now, I'd love to be able to tell you that the federal government would, but we all know that that is somewhat fanciful to think that that's going to happen. You should know that many of the allegations, if they are able to be proved, and remember, if they're criminal in nature, that's a very high standard, but they can violate state law.

For instance, I would not be surprised if the Manhattan District Attorney's office, which is an excellent state office, is not looking at this very, very carefully to see whether there are leads and matters that can be prosecuted. For some of those matters, the statute of limitations is one that has not run yet, meaning the time in which a case could be brought. There is still the ability to have charges. It just is unlikely to be federal. That's where I would turn to state and local prosecutors as one way to see the rule of law vindicated.

Brigid Bergin: Andrew, before we let you go, I want to get in one question about what happened in Georgia last week because it is so important. Last week, the FBI executed a search warrant at the Fulton county election center, seizing 2020 ballots, voter rolls, and scanner images, even though previous investigations, "Have found no evidence to support the president's false claims of widespread fraud." That's as The New York Times wrote it.

There have also been demands for voter roll information from Minnesota linking the ongoing violence on the ground there with a demand to give the Justice Department that kind of data. There are some questions about how the warrant was obtained for this Fulton County, Georgia case. I know we only have you for a couple more minutes, but what are the big red flags for you in terms of what happened there and what it could mean for elections going forward?

Andrew Weissmann: Look, under normal circumstances, what I would tell you is we do not know what the government knows. The government was able to convince a judge that there was probable cause, that there would be evidence of a crime-- Remember, just probable cause, a relatively low standard, at that location. That would be in normal times. I would normally have a healthy sort of, "Let's wait and see," because we don't know all the facts.

Here, it's worth remembering, not only is it a low standard, but when you apply for a search warrant, it is only the government and the judge who are there. We don't know what the government represented to be the facts. As we have just been talking about, let's just go back to Minnesota, we know that the statements that were made by the administration about Mr. Pretti are not true. He is not a domestic terrorist. He was not an assassin, and you are maligning the dead in that situation. The lack of credibility that judges have found repeatedly and that we have seen with our own eyes in Minnesota, I think is reason to have substantial concern about what was represented to the court.

As you said, Brigid, this is a matter that was investigated up one side and down the other. Remember, the people who were responsible for tabulating and counting the votes and certifying the votes in Georgia were Republicans who had every interest in seeing Donald Trump win, if he in fact had one, but they weren't willing to violate their oath of office. The real concern, and the thing that I think if I take away from it, and I think people who are listening should take away, is whether this is part of an end game with respect to the midterm elections.

The Wall Street Journal has suggested as much that we should expect the head of the intelligence community, Tulsi Gabbard, to come out with some report. They suggest there might be executive orders. The issue is whether this is going to be used as a pretext to seize voting machines, seize ballots to justify federal intervention and state processes in advance of or at the time of the midterm elections. At that point, if that's what is happening, that is one further nail in the coffin of American democracy.

Brigid Bergin: Professor Andrew Weissmann, professor of practice at NYU Law School, co-host of the podcast Main Justice. He's also on the board of the nonprofit daily digital law journal Just Security, which he also writes for. He's served as lead prosecutor in Robert Mueller's special counsel's office. Co-authored the book The Trump Indictments: The Historic Charging Documents with Commentary. Some chilling words to leave us on, but we want to let you get to class. Thank you so much for joining us this morning.

Andrew Weissmann: Thank you so much.

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