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News Brief: Legal Response To Trump's Emergency, McCabe Speaks, Jussie Smollett Case


President Trump declared a national emergency. Then he headed to Florida to spend the weekend at his Mar-a-Lago resort.


Others spent their weekend preparing to contest the president's actions in court. Many are focused on the president's own words, like California's attorney general Xavier Becerra.


XAVIER BECERRA: He himself said it. He did not need to announce or declare a crisis. He did not have to call this an emergency. He has also said he knows he's going to lose in court.

MARTIN: On "Fox News Sunday," White House adviser Stephen Miller tried to clarify the president's words.


STEPHEN MILLER: What the president was saying is that, like past presidents, he could choose to ignore this crisis. But that's not what he's going to do.

GREENE: All right. Let's bring in NPR White House correspondent Scott Horsley. Good morning, Scott.

SCOTT HORSLEY, BYLINE: Good morning, David. Happy Presidents Day.

GREENE: Well, Happy Presidents Day to you as well. And let's talk about the presidency. Talk to me about who is suing President Trump here.

HORSLEY: The state of California is one. They are going to be joined by a number of other states, including New Mexico, Oregon, Minnesota, Hawaii. Separately, we're seeing litigation from the ACLU and from three Texas landowners who, along with an environmental group, Frontera Audubon Society, feel like their lands could either be taken or otherwise compromised by the president's wall.

Now, as the California attorney general said, the president did acknowledge the threat of this litigation when he announced the emergency on Friday. And he did say he expects to lose in the early rounds, but he also said he expects to prevail ultimately. That's, of course, what happened with the travel ban last year.

GREENE: He's trying to set the expectations for what he assumes could be a big legal battle ahead. So talk to me about exactly his authority. I mean, the National Emergencies Act does give the White House and the president really broad authority to declare emergencies like this. So what exactly are these challenges based on?

HORSLEY: Xavier Becerra says there are eight billion ways that the president's emergency order could harm his state of California. He's referring there of course to the $8 billion that the White House is eyeing for wall construction. About 1.4 billion of that was actually authorized by Congress, so that's not really in dispute. What's at issue here is the other $6.6 billion that the administration now wants to divert from the Treasury and the Defense Department to build about four times as much wall as lawmakers actually authorized. Opponents say that amounts to usurping Congress' power to control the government's purse strings.

Now, as you say, the Emergency Act does give the president broad discretion. And the White House is really painting this as just a routine use of executive discretion to move money around. In fact, they say the president could have redirected some of these funds without even announcing a national emergency.

GREENE: So beyond these legal challenges, I mean, you have activists and many lawmakers, including some Republicans, complaining about this loudly. But beyond lawsuits, is there much that anyone can do to - if they want to stop this?

HORSLEY: Well, the National Emergencies Act does give Congress an opportunity to challenge the president through political means. And we certainly expect to see that in the House, the Democratic House, and possibly in the Senate, where there was some concern among Republican senators as well. Ultimately, though, probably won't be enough to overcome a presidential veto there. So we're also seeing congressional investigations and, as you mentioned, a lot of political demonstrations around the country on this Presidents Day.

GREENE: All right. NPR White House correspondent Scott Horsley. Thanks, Scott.

HORSLEY: You're welcome.


GREENE: All right. Andrew McCabe was the deputy director of the FBI until he was fired by then-Attorney General Jeff Sessions last year.

MARTIN: Yeah. McCabe has just released a memoir. It is titled "The Threat." And he's been speaking out about the Trump administration's decision to push him out.


ANDREW MCCABE: Firing me 26 hours before my retirement sends an unbelievably chilling message to the rest of the men and women of the FBI.

MARTIN: McCabe played a pivotal role in investigating Russia's alleged involvement in the 2016 election. He says he thinks he was fired because he opened two investigations into President Trump himself.

GREENE: All right. An NPR team interviewed McCabe. That team included NPR Justice correspondent Carrie Johnson, who's with us. Hi there, Carrie.

CARRIE JOHNSON, BYLINE: Good morning, David.

GREENE: So much to ask you about here. I guess can you start by talking about McCabe and how he has been summarizing the relationship between the president, people around the president and the Russian government?

JOHNSON: Andy McCabe confirmed that he opened two investigations of President Trump himself - a counterintelligence investigation and a criminal obstruction of justice investigation - after Trump fired his boss, Jim Comey, in 2017. McCabe said there was a good reason to investigate. Take a listen to what he had to say.


MCCABE: I don't know that we have ever seen in all of history an example of the volume and the significance of the contacts between people in and around the president and his campaign with our most serious, our existential international enemy, the government of Russia.

JOHNSON: Now, David, we pressed Andy McCabe about whether he thought there was conspiracy or collusion between anybody in Trump's orbit in Russia. He wouldn't go that far, but he said the evidence uncovered by the special counsel to date has been extremely persuasive.

GREENE: And so the other - one other interesting thing we - we're learning about with McCabe is he is someone who would brief the president on national security, sometimes relating to Russia, right? I mean, did he talk about those meetings with Donald Trump?

JOHNSON: There was one very jarring experience that McCabe shared in 2017 where someone else at the FBI went to the White House to try to brief the president about how Russia was using some buildings here inside the U.S. that have since been closed to collect intelligence, not just for recreational purposes. And McCabe recounts that instead of wanting to talk about Russia, the president turned the conversation to North Korea and North Korean missiles and basically told this FBI briefer that he did not believe the U.S. intelligence assessment. Rather, he believed Vladimir Putin, the leader of Russia, who denied anything with North Korea had taken place.

And here is how McCabe described his takeaway.


MCCABE: How do we impart wisdom and knowledge and the best of our intelligence assessments to someone who chooses to believe our adversaries over our intelligence professionals?

JOHNSON: That's just one of the frustrating experiences he described in the book.

GREENE: But we should say, Carrie, McCabe has been criticized himself, I mean, by the inspector general, criticizing him for his disclosures to reporters. I mean, did he defend himself about - in terms of some of that stuff?

JOHNSON: Remember, the inspector general at the Justice Department concluded that McCabe lacked candor when he was interviewed under oath multiple times by investigators at the FBI and the Justice Department. The central issue here is whether he authorized people on his FBI staff to leak information to the Wall Street Journal in 2016. McCabe is now the source of - or the subject of an inquiry by the U.S. attorney's office in D.C., an ongoing criminal inquiry.

GREENE: All right. NPR's Carrie Johnson interviewed McCabe, along with Steve Inskeep. And their interview, you can find longer portions of it by going to and also by listening to the program this morning. Carrie Johnson, thanks so much. We appreciate it.

JOHNSON: My pleasure.


GREENE: All right. The investigation into an alleged attack on the actor Jussie Smollett has taken another turn.

MARTIN: Yeah. Police had arrested two brothers who they considered potential suspects in this case, but these men have now been released. A police spokesperson confirmed that the information that these men offered has now shifted the whole inquiry, and police now want to speak with Smollett again. The actor is best known for his role on the TV drama "Empire." And he told police last month that he was attacked by two men in ski masks who made racist and homophobic slurs at him while putting a rope around his neck.

GREENE: All right. Miles Bryan reports for NPR affiliate WBEZ in Chicago and joins us this morning. Hi there, Miles.

MILES BRYAN, BYLINE: Hey. Thanks for having me.

GREENE: Well, thanks for coming on. What a case to follow. I mean, the allegations here of such a vicious attack - how has this case been evolving since the initial reports of this?

BRYAN: Right. I mean, it's been taking turns almost every day at this point.


BRYAN: In the last few days, the Chicago police had been seeking two persons of interest that were caught on video. Midweek last week, they picked up two brothers returning to Chicago from Nigeria and arrested them and questioned them for about two days. And then, on late Friday night, they actually released the brothers, saying they were no longer suspects.

And at that point, they said the information that had come out of those - that questioning had led the investigation to take a new turn. And most recently, they're now seeking to reinterview Mr. Smollett again. But they haven't been very explicit about what turn that the investigation has actually taken. They're just looking into something new.

GREENE: OK. So - I mean, so we don't know much about what turn this might be taking. But what do we know at this point about these two brothers and why they might have provided information that has led investigators to make a change here?

BRYAN: Right. The police say that one has worked on the show "Empire." And in a Saturday night statement, Mr. Smollett's attorneys acknowledged that Smollett was - knew one of the brothers and that one of the brothers actually trained him for a music video, helped him prepare for a music video.

Now, in that statement, Smollett stood by his statement that he was the victim of a hate crime. But they did acknowledge - they did respond to some reports alleging that the two brothers told investigators - or the two brothers maybe offered up some information about how the attack was staged. And Mr. Smollett pushed back on that and said that that was ridiculous and wrong.

GREENE: OK. So, I mean, this - obviously we don't know much. We have not confirmed anything. But the suggestion out there that this might have somehow been staged elevated enough that Smollett's own attorneys are actually responding to it, which is interesting.

BRYAN: Yeah, exactly. It is interesting that they responded to that. And they - but they also made it clear that they were responding to reports. And they would - did not want to deal with sources being cited in the news media, and they wanted to continue to cooperate with police and were looking forward to an official update on the investigation.

GREENE: So what happens now? The police say they're going to talk to Jussie Smollett again. And then, I guess, we see where the case takes us from there and what more twists and turns we see.

BRYAN: It's changing every couple of hours. But that's what's next, is they're hoping to sit down with Mr. Smollett.

GREENE: All right. WBEZ reporter Miles Bryan covering this case that keeps taking more twists and turns, Jussie Smollett alleging that he was the subject of an attack in Chicago. Miles, thanks a lot.

BRYAN: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Scott Horsley
Scott Horsley is NPR's Chief Economics Correspondent. He reports on ups and downs in the national economy as well as fault lines between booming and busting communities.
Carrie Johnson
Carrie Johnson is NPR's National Justice Correspondent.
Miles Bryan
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