A (2:31)

Yeah, yeah, that's right. Oren Kerr has written a piece for Lawfare and Reason. Two different places is where he put it. But the Associated Press reported this week that federal immigration officers are asserting sweeping power to forcibly enter people's homes without a judge's warrant. And that's according to an internal Immigration and Customs Enforcement memo obtained by the Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches. The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates Say collides with Fourth Amendment protections and upends years of advice given to immigrant communities and.

B (3:24)

Given to law enforcement officers.

A (3:26)

Right. It's in their training manuals. But you might have questions, as I did, about the differences between an administrative warrant and a judicial warrant and why judicial warrants are necessary to satisfy the Fourth Amendment, at least per court precedent. And that's where expert Oren Kerr comes in.

B (3:45)

Yeah, that's right. So Mr. Kerr writes, the specific subject is what are known as Form I205 warrants, which are signed by immigration officials and not regular judges. As I read the memo, DHS's position is that they authorize ICE to enter homes based on Form I 205 orders everywhere except in the Central District of California, with that exception due to a 2024 ruling in that district in a case called Kidd v. Mayorkas. Unfortunately, however, the memo does not include any legal analysis. Wow. This raises a big question. This raises lots of questions. But anyway, Oren says this raises a big question. Can ICE enter a home to make an arrest without a judicial warrant?

A (4:35)

Yeah. And I just want to let you know that when we first reported this over on my sub stack, that there's no legal analysis here. They do cite that they've determined at their Office of General Counsel that this is legal. And I have filed a Freedom of Information act request for that memo. Nice.

B (4:57)

Thank you very much.

A (4:58)

You're welcome. I don't think I'll get it. I think it's probably protected by the deliberative process privilege, but. Or other exceptions to the Freedom of Information Act. But I have filed a request, and I'll sue them if they don't hand it over. But.

B (5:09)

Or maybe it's protected by the it doesn't actually exist privilege.

A (5:14)

It could be protected by that privilege as well.

B (5:17)

The dog ate my homework privilege.

A (5:19)

We've just decided in our minds. Now, Oren Kerr goes on here and says the standard view has been that administrative warrants cannot authorize home entry because they're executive branch orders, and the executive branch can't be in charge of deciding whether to give itself a warrant. Under Peyton v. New York, from 1980, the government needs an arrest warrant to enter a home to make an arrest. But Peyton refers to judicial officers inserting his judgment between the zealous officer and the citizen. And the immigration officer who signs A Form I205 is not a judicial officer. So that's the traditional thinking here, Andy. You can't sign your own warrants. You got to have a judicial person do it. That thinking is captured by Judge Wright's reasoning in the Kid v. Mayorkas opinion that you just mentioned from 2024. Judge Wright was addressing the broad category of administrative warrants, which included a subcategory, the Form I, 205 warrants. Now, Andy, what did Judge Wright say about these administrative warrants in that case?

B (6:24)

Well, Judge Wright said a judicial arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the subject lives when there is reason to believe the subject is within and consistent with the Fourth Amendment. Immigration authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official rather than by a judge. However, the Supreme Court has expressly declined to consider whether an administrative warrant satisfies the requirements for warrants under the Fourth Amendment. Rather, case law supports the need for independent judgment issuing warrants. And then they cite to Shadwick vs City of Tampa, a 1972 case in which they said the warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause. Thus, an issuing magistrate must be neutral and detached. They also cite to Coolidge, a 2022 case which said, the whole point of the basic rule is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations. And if I could here, Alison, I'd like to just insert real quick what is actually the language of the Fourth Amendment that's at issue here. Right? And so, just as a reminder, the Fourth Amendment says the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. And no warrants shall issue but upon probable cause supported by an oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized. So that's saying you cannot be seized. People cannot come into your house and take you or your stuff unless there's a warrant based upon probable cause which is supported by the statement, an affirmed statement by a police officer or agent or something like that. So that's what's at the heart of this whole thing.

A (8:39)

Right? And a judge has to sign that because they're a neutral party. I mean, how many times do you wish you could have written yourself a warrant to go into somebody's house?

B (8:47)

God, are you kidding me? This is the whole point. You have to go before the judge with your affidavit which lays out the facts that establish probable cause, and a judge decides if there's probable cause to believe that a person has a. Has committed a crime in which they can be arrested for that crime, or that you have evidence of a crime in your home or your office or something like that, in which case you can enter to recover that evidence. Now, I would also point out that in the first paragraph from that case of judge rights, he points out that if you have an arrest warrant for a person that's been issued by a judge, that warrant actually comes with it, the authority to enter the home to get that person, but only if you have reason to believe the person is in there like it's their house and you know, you watched and you saw him go in the night before or something like that. That's the way the FBI does it. Otherwise, if you're not. If you don't have an arrest warrant, all you have is a warrant for things. Evidence you have that warrant would also carry with it the authority to enter a place if you've specifically described it to the judge and the judge has decided that there's probable cause to believe that evidence is inside. So that's basically how it works right there.

A (10:01)

When you just said that's the way the FBI does it, I pictured in my head Homer Simpson leaning down and telling you that's the way the FBI used to do it.

B (10:11)

Jeez, that hurts. I can't say you're wrong, though. I wish I could argue with you, but. Oh, yeah, yeah.

A (10:17)

Sorry, man. All right, so Oren Kerr continues, that Judge Wright in that kid case went on to say, because the administrative warrants at issue here lack the independent assurance guaranteed by the Fourth Amendment, they do not immunize defendants conduct. This is also consistent with ICE training materials which affirm that administrative warrants do not authorize entry into a dwelling without consent. That's in quotes, that is from the ICE training materials that have been told to be ignored in this case by this memo. Now, Kerr says we don't know the specific basis for DHS's disagreement with this position, but if I had to guess, I would guess that they read Able v. United States from 1960 differently than Judge Wright did. In Kidd above, Judge Wright says that Abel expressly declined to address whether administrative warrants or Fourth Amendment warrants. Technically that's true, but if you read Able, Justice Frankfurter is saying that the court won't hear the defendant's argument that administrative warrants are not valid Fourth Amendment warrants because the defendant did not make the argument in that case. And Frankfurter drops a bunch of hints that he would be inclined to say that they're Valid. So, like all incorrect Trump administration legal assertions, they may be relying on a feeling that a judge might have had in a reluctant concurrence. Kind of like how Judge Justice Thomas said in his immunity concurrence that maybe Jack Smith wasn't appointed properly, out of nowhere, for no reason.

B (11:52)

That's extraordinary. I mean, if that's what their reasoning is, and we have to say if, because they haven't told us what their reasoning is, we don't have any real legal analysis from them.

A (12:03)

Right. That Office of General Counsel decision is still a secret, correct?

B (12:09)

Correct. So also, the Fifth Circuit affirmed without reaching the question on entering with an administrative warrant, because in Able, the officers never actually went inside. So Kerr says that perhaps DHS thinks that makes this question sufficiently unsettled. Now, according to the DHS memo released by the whistleblowers, Todd Lyons says that the DHS Office of General Counsel has reviewed the laws and the Constitution and has determined that you don't need a judicial warrant to enter a home. And dhs, as we said, doesn't share that legal opinion. So we're guessing what it says. But Oren Kerr thinks the unsettled nature of kid might do the trick here, might have left them just enough daylight on this issue that they can insert their own very aggressive, very unconventional interpretation of the law. But there's a problem with that argument. Right?

A (13:09)

There's. There's a big problem because Oren Kerr says, quote, if that is the DHS argument, and I'm just speculating, I think the problem on the merits is that there's been a lot of water under the bridge since Justice Faulkner's opinion enabled. There's Coolidge from 1971. Shadwick, like you said, from 72. Those settled the idea that a warrant requires a neutral and detached magistrate. Peyton from 1980 settled that a judicial warrant is needed for entry to go Back to the 1960 opinion in Able and to read its dicta as binding without considering the Supreme Court's later holdings in Coolidge, Shadwick and Peyton seems pretty problematic. You think that's like. Well, back in England, they used to do it. Yeah, well, a lot's gone down since. Now, Andy. This Supreme Court's own unitary executive theory actually goes against what DHS is trying to do.

B (14:06)

Yeah, exactly. So, as Oren Kerr explains, I would think this is especially the case if you accept the unitary executive theory, in which what various immigration officials do in the executive branch is all ultimately part of, quote, the executive vested in a President of the United States right That's the beginning of Article 2 of the Constitution and should not be thought of as an independent decision of an immigration judge or any other immigration official. Given the focus in Coolidge, Shadwick and Peyton on the fundamental role of warrants in inserting a judicial check on the Executive, it seems out of place to say that this can be satisfied by the executive checking itself. Even if the i205 warrant was signed by the immigration official based on an immigration judge's removal order, that removal order is an order from the President's executive branch. From that perspective, the traditional thinking that an executive branch warrants cannot satisfy the Fourth Amendment judicial warrant, a patent test seems persuasive.

A (15:14)

Yeah. And that seems like, a little hard to get your head around. But when you, if you take the Supreme Court's view, on current view, I should say on the unitary executive, then all the immigration judges and ICE officials and everybody who signs these i205 warrants are part of the executive branch. And because of Peyton, Coolidge and Chadwick, the executive branch can't check itself. So it sounds like DHS wants to go all the way back to able from years before.

B (15:40)

Right.

A (15:41)

Which has kind of been disproved since then.

B (15:44)

Yeah. I mean, this is the entire purpose behind the warrant requirement is that you as law enforcement, I. E. Executive branch, in the eyes of the unitary executive people, you're the President, you appear before a judge, a member of the judiciary, the opposite branch of government, and you have to prove to that neutral and detached arbiter that. That you have probable cause. Well, there's no neutral, detached arbiter. If you're just asking the question of can I have a warrant to somebody else who's also in the executive branch. Many people aren't aware of this, but immigration judges are not, are not Article 3 judges. They're not part of the judiciary. They are part of the executive branch. They're just appointed by executive branch agencies. They're not, you know, they don't serve in courts that were created by Congress according to the Constitution. They weren't nominated and approved by the Senate and all that stuff.

A (16:43)

Right. And in these cases, the i205 isn't even signed by an immigration judge. It's signed by a vice officer. So, like, it's even more not neutral. Right. Imagine if Jack Smith just went ahead and approved the toll records for himself and just went and got them.

B (17:02)

So here's a great example. When I started working in New York in those days, I don't know if this is still the case. But we had, you know, you could go to a U.S. attorney and get a grand jury subpoena for toll records, but if your case. There was a law in place at the time that if your case was a drug investigation, if there were any drugs in your case, you could get an administrative subpoena, which was literally a form on our. Built into our FBI word perfect machines. You could just print the subpoena out, sign your own name to it as the agent, and then serve it on the phone company. Everyone knew that that was not near the standard of, you know, kind of neutral judicial determination that you would get from a real grand jury subpoena. It was at a much lower level. You. This is basically the investigators just cranking out as many subpoenas as they wanted, according to own assessment that there were drugs somewhere in this investigation. So these things exist in the executive branch, but they're usually confined to areas that are not as serious as a bunch of cops kicking in your door to come arrest you.

A (18:15)

Hmm. Wow, that's interesting. All right, so how do we fight back against this in the courts? Oren Kerr says that's a little murkier. Some may be thinking, well, if that's the approach that the DHS has adopted, surely it can be challenged in court. Right. But this is less than obvious to me. It may be that there are ways of challenging the DHS policy under the judicial review doctrines of administrative law, like the apa. I don't know. It's not my area, so I will leave that to others. So I like that he. He's like, sounds like maybe apa, but I'm not sure.

B (18:52)

Yeah.

A (18:53)

He goes on to say, it seems worth flagging, though, that this is another place where the Supreme Court's gradual cutting back on the scope of the Bivens remedy. That's the civil action against federal agents for violating the Constitution, including the Fourth Amendment, may make the most obvious form of judicial review unavailable. Even if the policy is unconstitutional, as it seems to be, a person who is illegally searched probably can't sue ICE for violating their constitutional rights. And that's because the Supreme Court's been chipping away at this thing called Bivens. And we could do a whole show on Bivens.

B (19:26)

But, yeah, that's why Oren goes on to say, it's always hard to offer a take on a legal argument when you have to speculate about what the legal argument is. So my take on this is tentative. But if I had to summarize my current thinking, it seems to me that the DHS policy is likely wrong in light of Coolidge, Shadwick and Payton, although the DHS position is not frivolous in light of able as interpreted in Malario. And the trickier issue may be actually getting emeritus ruling on the issue in the court in light of the absence of remedies due to the Supreme Court's gradual cutting back on Bivens remedies. Or at least that's my tentative take, without actually getting to see the DHS legal analysis and with the caveat that I don't know the administrative law remedies that might be available. So that's Orin, I think, very reasonably putting some questions in the conclusion here because there's just so much we don't know. But I think his point about Bivins is really good. I also think there's something to be said here about, like, as a practical matter, the people who are likely to be victimized by these potentially Fourth Amendment violative searches will also likely end up in immigration custody, which is not the ideal place to go out and find a constitutional lawyer to come start a war against the government for you. So that's another. There's a, There's a real practical problem here that the very people who might have a cause of action to challenge this are probably in the least advantageous position to pursue it. They likely don't have the resources, access to the attorneys who would be willing to do this and could do it competently. And the next thing you know, they're on a plane headed back to wherever they ever came from. And then at that point, they're just completely out of luck.

A (21:26)

Right. Which is why DHS is saying you're allowed to do this with an administrative warrant everywhere except the Central District of California, where they actually do have a clear ruling on the fact that you can't do this. And so because they've taken away the nationwide injunction and because they've chipped away at the ability to file a class action suit, it's going to be very difficult for individuals to be able to bring merits cases or, you know, individual cases, civil actions on unlawful search and seizure in violation of their Fourth Amendment rights. They're. They're also. This is civil action. Right. This isn't criminal.

B (22:01)

Right.

A (22:02)

So it's not like you can just file a motion to dismiss or a, you know, you violated my Fourth Amendment rights. So there's no evidence for my case, but there's no criminal case here.

B (22:14)

Right, Right. So what, your immigration lawyer, if you have one, is going to bring this up in Your last hearing before you get deported like that, that's the same judge who isn't part of the Article 3 court system where they're going to be like, hey, go file a lawsuit someplace else. You know, tell somebody who cares. So yeah, this is just, I gotta say, for anyone who has had a career in law enforcement and has spent their life understanding these rules, understanding the impact of these, this like very vital area of constitutional law and conducted your operations accordingly. Like, this is crazy. This is. The idea that you could do this with an administrative warrant is just insane. This is. I don't know. I can't even get my head around the idea of doing this. And I can't, I can't. I take Oren's arguments very seriously, but man, I can't imagine a district court judge in this anywhere giving this like serious thought as being legal. I just, you know what, what the Supreme Court does with it if it ever gets in front of them. I mean, who the heck knows like that, that crew, but your run of the mill district court judge who sees warrant officers coming in with affidavits every day, every week, day after day after day asking for probable cause determinations to enter homes. Like they're looking at this going, you gotta be kidding me.

A (23:45)

Yeah, yeah, it's. It's pretty scary. And I think it just goes along the lines of, well, Todd Lyons is. Must. Must just be thinking with the Stephen Miller brainstorming in a room. And I know that that sounds like an oxymoron, but who's gonna stop us?

B (24:00)

Exactly, exactly. You know, why. Why are we not asking dhs? Okay, so now you're saying you can do this. Why were you training your agents for the last couple of decades that they could not show me the logic? How did you get from thou shalt not ever to. Yeah, go ahead and do it. Yeah, it's just fascinating. This is the kind of thing that Congress should be subpoenaing high level DHS lawyers and officials to come up to the Hill and testify and explain this. But man, that's not going to happen until maybe, you know, the end of this year.

A (24:40)

No, but I have asked. I filed that Freedom of Information act request. We'll see what they say. Yeah, and I'll keep everybody posted. All right. Some new news that came out over this last week about Minnesota, Andy, that I'm interested to talk to you about. Is fact that the FBI actually did open. Had found predicate to open a civil rights investigation into the shooting death of Renee. Good. And then it got closed we'll talk about that after this quick break. Stick around. We'll be right back. Hey everybody, the holidays are over and a lot of us are doing that January math. All the drinks and parties and food and gifts, it all adds up and suddenly you're looking for places to save some money. And Mint Mobile can help with that. This January, they're offering 50% off unlimited premium wireless, which is a solid way to stop overpaying for service. We have a producer at MSW Media who's using Mint Mobile now, and he's been genuinely happy with the switch. Compared to his old provider, he says the connection feels more consistent, data responds faster, and the monthly cost is way, way lower. He's saving enough that it feels like a big win. So check out today's sponsor, Mint Mobile, and make the switch@mintmobile.com unjust Mint Mobile's end of year sale is still going on, but only until the end of this month, so it's a good time to jump on board. You can cut out Big Wireless's bloated plans and unnecessary monthly charges with 50% off when you choose a 3, 6 or 12 month plan of unlimited. Every plan comes with high speed data plus unlimited talk and text on the nation's largest 5G network. And you don't even have to get a new phone. Keep the old one you already have, bring your old phone number over, bring all your contacts with you. It's super easy. Mint Mobile has thought of everything and all you need to do is make the call. So this January, quit overspending on Wireless with 50% off on Unlimited Premium Wireless plans start at $15 a month at mintmobile.com unjust that's mintmobile.com unjust limited time offer upfront payment of $45 for three months, $90 for six months or $180 for 12 month plan required at the $15 a month equivalent taxes and fees extra initial plan term Only more than 50 gigabytes may slow when network is busy. Capable device required availability, speed and coverage vary. Cmitmobile.com for details.

C (26:53)

It's no surprise that newsmakers try to manipulate the audience. They want you to believe that they are the one holding the line, and they'll use any trick they can to get you there.

A (27:01)

But don't let them fool you.

C (27:03)

Get Unspun I'm Amanda Sturgel. I've been a reporter, and today I teach future reporters to cut the spin and think critically about what newsmakers say. My podcast, Unspun, shows you how to know when you're being manipulated by the news. Learn to spot the tricks and how to make up your own mind about what's true. So if you're tired of being fooled by the news, subscribe to UNSPUN today. Unspun. Because you deserve the truth.

A (27:36)

Hey, everybody. Welcome back. All right, let's head to Minnesota. Like I said before break last week, we talked about how most like almost a dozen federal prosecutors resigned at the Civil Rights division and Minnesota U.S. attorney's office over the fact that not only was there not a Civil Rights Division investigation into the shooting death of Renee Good by Jonathan Ross, but that they were actually investigating her partner. And this week, we have new information about that Civil Rights Division probe. This is from the Washington Post. They say in the immediate aftermath of the death of Renee Goode in Minneapolis, FBI agents, plural, launched a civil rights investigation into the actions of the immigration officer, Jonathan Ross, who shot her. And that's according to three people familiar with the investigation. An agent in Minnesota conducted an initial review of the shooting and determined that sufficient grounds existed to open a civil rights probe into the actions of Jonathan Ross. That's according to the people who spoke on the condition of anonymity to discuss internal deliberations. So, Andy, what do you think about this? I mean, these FBI career agents on the ground were like, yep, this is what we do. This is how we do it. We open a civil rights investigation because the police shot an unarmed person. And that's what we do. It's how we do it. And then it was shut down.

B (28:50)

You know, it's funny you say that, because that's exactly what I thought. What this tells us is that there are still FBI agents out there doing things the way they're supposed to be done, the way they've always been done, that agents who are out in the world observing and documenting facts and taking appropriate investigative action based on those facts. That's what the FBI does. It's the Federal Bureau of Investigation. But it also tells us that there are other people above those agents who are turning those switches off, who are proactively for political reasons. Be perfectly clear. Political reasons, reaching in and shutting those normal processes down, turning off those investigations of people who they just don't want to be investigated. So that's, I think, in a nutshell. It's in a. In a microcosm. It's the. That's the story of the FBI today. And it's. I mean, it's a shame.

A (29:52)

Yeah. I mean, I figured that must have just gone through your head. Like you could see it like FBI agents, local FBI agents on the ground, open that a civil rights investigation, like as per protocol, and. And then we're told not to. And I don't have any additional information on whether those FBI agents still work for the FBI or if they've been moved or transferred or punished or retaliated against. That hasn't come out, but we'll keep an eye out for it.

B (30:18)

Yeah, for sure. And those, those folks should watch your back. Okay, so, in a related story from the Times, federal prosecutors issued subpoenas on Tuesday to at least five Democratic officials in Minnesota, ramping up the Justice Department's investigation into their response to the Trump administration's aggressive immigration crackdown in the state. According to two people familiar with the matter, the subpoenas sought documents from Governor Tim Waltz, Mayor Jacob Fry of Minneapolis, and Mayor kayoli Herr of St. Paul related to their policies on immigrant immigration enforcement efforts in the state. Similar subpoenas sought information from Keith Ellison, the state Attorney general, and from Hennepin county, where Mary Moriarty, the county attorney, has said she has jurisdiction to investigate the fatal shooting this month of a 37 year old woman, Renee Good, by a federal immigration agent.

A (31:15)

Yeah. And Andy, guess what? Per usual quote, while the subpoenas did not cite a specific criminal statute.

B (31:22)

Well, look at that.

A (31:24)

How weird.

B (31:24)

It's a trend.

A (31:26)

Yeah, I know. It's, it's. That's the new thing. The inquiry as a whole was said to center on whether elected officials in Minnesota had conspired to impede the federal agents who've been in the state since last month looking for undocumented immigrants. Which, by the way, is words. Right. Those words are right out of the Insurrection Act.

B (31:43)

Yeah.

A (31:44)

But the investigation is likely to run up against stiff pushback for examining political speech and conduct that is traditionally protected by the First Amendment. Yeah, they're gonna have a hard time indicting anybody here, but I think it's just pretext to invoke the Insurrection act if they want to.

B (32:00)

Yeah. And it's threats, it's intimidation, it's an effort to change the narrative, which is really what they're obsessed with. The bottom line is this is a terrible, this whole situation up there is an absolutely terrible look for them. One day after another, it's a different picture of some sort of seemingly offensive thing, violent thing that agents are doing on the streets of Minneapolis to innocent citizens. And, you know, so they are desperately trying to get back to the, oh, it's all Minnesota's fault for not being helpful. It's like JD Vance's speech up there yesterday, it was the same thing. Oh, you know, we could really bring down the tension here if the local authorities would just start helping us do our enforcement. It's like you could bring down the tension right now by telling your people to conduct their business differently or getting them out of the state, reducing their numbers. And by the way, like, the people of Minnesota, they have the right to decide how and if they want their local resources interacting with government law enforcement. Like, I used to confront this in my own work. We'd have, you know, joint terrorism task forces and many, many different states around the country. And in some places, we had great cooperation with the locals, and in other places we didn't like. Portland was one of those places where the local city council just decided they didn't want their police working on our task force. That didn't make me happy. I wish they had been there helping us. But that was. You know, that's the local government. They have the right to decide what to do with their assets. We just went about our business and did our jobs anyway. You know, this is. This is ridiculous. People don't have to help if they don't want to. And this is just like, more effort by the federal government to come in and. And steamroll the states. You know, the great protectors of states rights here. The Republicans not doing such a great job at that lately.

A (33:58)

No. And we have a lot of precedent for this, the commandeering doctrine and the, you know, state sovereignty stuff. So, you know, we do see already a lot of those lawsuits that have. That have already happened, and we'll follow those as they go through the courts. But this Department of Justice just being totally weaponized to go after political enemies and. And, you know, for pretext of stuff is. Is just so common now. I mean, those. You know, we. I just got breaking news that you remember when Pam Bondi wanted to arrest all the, like, the eight people that went into that church where the ICE agent was a pastor, and they wanted to arrest Don Lemon and all this other stuff.

B (34:46)

Why were they gonna arrest Don Lemon? I never understood that.

A (34:49)

Even though ICE goes into churches all the time, they're like, this is a sacred place of worship, except for ice. ICE can go in. But just now, it's. You know, we just received word that all they. Out of the eight people, they managed to get indictments, complaints signed by judges against three. A different judge refused to sign a complaint against the other five. They arrested those three on those. That information and charges signed by a magistrate judge for probable cause. But judges just released them because the DOJ wanted to hold them because they were danger to the community and a flight risk. And a judge, a judge was like, no. And he just, they two different judges in, in these three for these three people just released them all from jail. So we're going to continue to see this stuff. He's going to continue to go after political enemies. You know it, I know it. You know it better than me. So that's just the kind of, I guess, the reality that we live in right now. And yeah, and it's, you know, when you put, when you butt that up against Jack Smith's testimony, when they kept hammering on the fact that you violated our rights by getting our toll records. You violated our rights. Meanwhile, they are giving a thumbs up to ice going in without a judicial rule.

B (36:03)

I've been screaming about that in my house for the last 24 hours. I'm like, the nerve of these crybabies to get up there and start bemoaning the violation of their privacy and saying nothing about the federal law enforcement completely changing their training policies to allow their agents to kick in the doors of homes searching for people without a warrant. I mean, it's insane. It's so.

A (36:27)

I wish one, some Democrat would have brought that up or Jack Smith would have been like, aren't you guys going in without Lawrence? Like, at least I got a federal grand jury subpoena.

B (36:36)

How about Every time section 702 of the FISA law comes up for renewal and you have to hear this from like Rand Paul and all these very conservative Republicans. Oh, it's such a gross violation of Americans privacy that the FBI would look in a database that might contain some of their toll records, like, okay, but it's okay to just kick your door down and come stomping on in with a warrant that you signed yourself. I mean, jeez. Anyway, geez.

A (37:05)

Louise, I think she's. Louise is the farthest we go on the expletives here on Unjustified.

B (37:11)

That's right.

A (37:12)

All right, we have more news to get to. We've got a piece by Scott McFarland who's talking about the Civil Rights division at the Department of Justice and how it's pivoted under Harmeet Dhillon to protecting the civil rights of white people under what they call reverse racism. We'll talk about that right after this break. Stick around. We'll be right back.

C (37:37)

It's no surprise that newsmakers try to manipulate the audience. They want you to believe that they are the one holding the line and they'll use any trick they can to get you there.

A (37:45)

But don't let them fool you.

C (37:46)

Get Unspun I'm Amanda Sturgel. I've been a reporter, and today I teach future reporters to cut the spin and think critically about what newsmakers say. My podcast, Unspun, shows you how to know when you're being manipulated by the news, learn to spot the tricks, and how to make up your own mind about what's true. So if you're tired of being fooled by the news, subscribe to UNSPUN today. Unspun because you deserve the truth.

A (38:12)

Foreign.

B (38:19)

Welcome back. Okay, Scott McFarland at CBS has a new piece out about the Civil Rights Division and their pivot to investigating reverse racism. He writes a letter sent to state officials in Rhode island by the Justice Department in June included a reminder that federal civil rights law, quote, prohibits an employer from discriminating against an individual on the basis of race, color, religion, sex or national origin. But that letter is a part of a Trump administration initiative that upends 60 years of efforts by the federal government to prevent discrimination against minority groups in the United States.

A (38:59)

Minority groups, right. Well, we generally, generally view discrimination here. Several former Justice Department employees who spoke with CBS said the department's focus is shifting. It will seek to protect white people against alleged reverse discrimination. The dramatic shift was crystallized by Trump's statement earlier this month. In an interview with the New York Times, Mr. Trump said civil rights protections and programs have hurt white people.

B (39:28)

The Justice Department's inquiry letter to Rhode island says it is investigating whether the state is engaging in discrimination in its state government hiring and implementing an affirmative action plan that's been used nationwide to ensure diverse workforces and student groups. The Rhode island inquiry is the latest in a series of probes by the Trump administration's Justice Department into organizations or governments that use diversity, equity and inclusion programs. Last week, the agency also filed a lawsuit against Minnesota. Oh, imagine that. In an effort to bring down the state's affirmative action hiring policies for its agencies. The suit asserts Minnesota law, which mandates an affirmative action program for the state civil service, is a violation of the Civil Rights act of 1964.

A (40:15)

My God, quote, we're seeing a civil rights division that's really acting on the president's notion that civil rights laws have harmed white people. That's Jen Swedish, a former attorney in the Justice Department's Civil Rights Division. Jen goes on to say, I think the president's recent statement about reverse discrimination has demonstrated that this administration is focused much more narrowly on on white people.

B (40:41)

Swedish said federal laws have long prohibited discrimination against any groups, including white people and people of color. She and other former agency employees who spoke with CBS News said the Trump administration's focus on targeting and reversing diversity programs appears to be a political decision. Quote, we are right now operating under a backdrop of a Department of justice that's no longer independent from the White House, said Swedish, who began working in 2025 for the Washington, D.C. based Justice Connection Organization, which helps support thousands of former Justice Department employees with legal representation, employment guidance and mental health assistance, among other services.

A (41:26)

In December, Assistant Attorney General for Civil Rights Harmeet Dhillon announced a new rule for handling civil rights cases eliminating disparate impact liability from the Civil Rights Act Title that's Title six regulations. Now, Title six bans discrimination based on race, color or national origin and programs that receive federal financial assistance. It's intended to ensure equal access to benefits and services. Discrimination that's the result of disparate impact. Discrimination occurs, quote, when a seemingly neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of intent. That's according to the Congressional Research Service. The issue has been the basis of lawsuits involving housing restrictions, lending or age discrimination in hiring and public accommodations for the disabled.

B (42:17)

For example, in a statement in December, Dylan accused the Justice Department of a history of, quote, enforcing race or sex based quotas or assumptions. And she said that disparate impact regulations had, quote, encouraged people to file lawsuits challenging racially neutral policies without evidence of intentional discrimination. Rescinding that regulation will restore true equality under the law by requiring proof of actual discrimination rather than enforcing race or sex based quotas or assumptions, dylan said.

A (42:53)

Okay. Now, Swedish and her colleagues at Justice Connection estimate more than 5,000 employees of the Justice Department have departed in the first year of the second Trump administration. She said many of those employees departed because of controversial policy changes and decisions by new agency leaders. Earlier this month, prosecutors in the Justice Department's Civil Rights Division were told they would not play a role in the ongoing investigation into the fatal shooting of Renee Good in Minneapolis by federal immigration officer Jonathan Ross. That's according to a previous report by CBS News. So. So that's how they're officially pivoting away from protecting minority groups into protecting white people.

B (43:33)

Yeah, and they've gotten a huge assist from the Supreme Court to help them kind of gut the, the Civil Rights act and the Voting Rights act. And that's going to continue because that's where they are politically. They believe that Anything, any policy or law that's designed to address and somehow right the wrongs of the past in terms of discrimination and violations of civil rights is, you know, it doesn't, doesn't deserve a place in this country anymore. Yeah, it's, It's. I, it's, it's astounding to me that people support this, but, you know, that's where we are, I guess.

A (44:18)

Yeah, that's. We're going to be saying that a lot, I think, for a while.

B (44:21)

Yeah. I've run out of. I've run out of ways to characterize this. It's like, I just don't. I don't get it, but. Okay.

A (44:30)

Okay. Yeah. Right, Exactly. I was talking to somebody today about folks wanting to defund ICE with this continuing resolution that's happening right now. And I'm like, but the big, beautiful bill has granted a $75 billion slush fund to ICE that lets it operate at double its capacity until Trump's term is over, and it can't be defunded from the continuing resolution. So there's nothing that the Democrats could do if they blocked this DHS appropriations bill, they would defund FEMA and TSA and the Coast Guard, but not ice. ICE continues to operate unfettered.

B (45:16)

Yeah.

A (45:17)

Regardless of what they do. And they're like, well, what do we do? And I'm like, vote. We get mad about it. I mean, like, that's. Unfortunately, that, you know, I don't really. I don't really have a lot of answers for remedies other than to just continue to, you know, do what we do. Put out shows, get the truth out there.

B (45:34)

Yeah, yeah.

A (45:35)

Answer listener questions, which we'll do at the end of the next block. But it's. I think that's why people are feeling very frustrated and, and, and power. Somewhat powerless, because, again, the Trump administration continues to get away with this without any accountability.

B (45:50)

So, yeah, I get it. I, I share their frustration, but it's going to be a long road, and there's only one way through it, and we have to just keep marching and staying engaged and consuming information and facts and having these conversations with the people we know and with the people around us and people who will listen to you, even those that don't agree with you, and protesting and showing up and using your voices, but doing so in a way that is peaceful and nonviolent.

A (46:22)

Yeah. I got handed to Minneapolis today as we're recording this Friday. They showed up. They showed up tens of thousands of people in peaceful protest. And, you know, Ruth Ben Guyot, who is an expert at strongmen and authoritarianism, says that those kinds of protests do matter, and they do make a difference. And so they do.

B (46:43)

They do.

A (46:43)

I mean, hats off to Minnesota.

B (46:45)

That's what happened in the civil rights movement. That's why the nation suddenly became aware, because on television, they're seeing, like, young children getting blown over by fire hoses and. And peaceful protesters getting their heads kicked in. So, anyway, that's a whole nother show.

A (47:05)

Yep. We can wax philosophical for a very long time, but we do have two more stories to get to, so stick around. We'll be right back. All right, everybody. Welcome back. Just a couple more quick updates before we get to listener questions. First, we've been following the Ro Khanna and Tom Massey letter motion to Judge Engelmeier in the Southern District of New York asking for a special master. They want him to appoint a special master to oversee the release of the entirety of the Epstein Files under the Epstein Files Transparency Act. But you and I, Andy, we were like, how does he have authority over any files other than the small subset of files that's before him in the Maxwell case?

B (47:51)

That's right.

A (47:51)

And Engelmeier had the same questions we did. So he asked the parties to explain what gives him the authority and what gives Ro Khanna and Tom Massie standing to. They're not a party in the case. And this week, Engelmeier made his decision.

B (48:07)

Yeah. And he says, quote, this federal criminal case does not give the court jurisdiction over or authority to supervise DOJ's compliance with the Epstein Files Transparency Act, a civil record disclosure statute. The representatives have not articulated how the criminal statutes under which Maxwell was charged would empower the court to enforce the Epstein Files Transparency Act. They have not cited any case supporting that original jurisdiction. To hear cases brought under federal criminal law carries with it the authority to superintend enforcement of the efta, a civil records disclosure statute. No provision of the EFTA vests this court with that authority.

A (48:53)

Yeah. So it is as we feared. And the Representative's proposed participation here as amiki curi is also not permissible. The judge said neither party in this case has made any motion concerning the implementation of the efta. The representative's attempt to participate as amici curi to raise a new issue. Whether a special master or other neutral party could be appointed to oversee the compliance with the act is not permissible. But, Andy, the judge says this decision is without prejudice to the Representative's right to initiate a separate lawsuit. The representatives are also of course, at liberty to pursue oversight of DOJ via the tools available to Congress. DOJ argued broadly that the Epstein Files Transparency act does not provide a private cause of action to a person seeking information under the act, and that the representatives would lack standing to pursue relief in any case they might bring. The court does not have occasion to reach either argument. So he's saying what we said. There has to be a separate lawsuit filed. He's not going to opine on whether they would have standing to file their own separate lawsuit or whether a court would have jurisdiction to do any of this. But they can, because the DOJ came in and argued this isn't reviewable by any court ever.

B (50:10)

And the judge is like, no, hold on. Take it easy, Francis.

A (50:16)

Yeah, I mean.

B (50:18)

This is the legal equivalent of Monty Python's line, I'm not dead yet. He's not. The issue's not dead yet. But it's, you know, it's maybe on its way, but.

A (50:30)

But, hey, it's only mostly dead. See, with mostly dead, you just go through the pockets and look for loose change.

B (50:37)

That's right. So we'll see. Maybe they'll bring it back as a suit in some other form. But if they do, we'll certainly. We'll certainly talk about it here.

A (50:46)

Yeah. And I've spoken to some survivors. I was like, you know, you could file a lawsuit because you have harm here. If they're failing to follow the act and revealing some of your private information, that is irreparable harm, you might have standing. Right. And then under that process, you could perhaps ask for a special master or the court to compel to release all the files or something like that. But you got to get a good legal vehicle, and the old Maxwell criminal case, isn't it? And Engelmeier says, yeah, sorry.

B (51:18)

Yep, for sure. Okay. So lastly, got one more here. Judge Novak, who suasponte ordered Lindsay Halligan to explain to him how she's not misrepresenting facts when she continues to sign her name as U.S. attorney after having been disqualified by Judge Curie in the Comey case. Well, Judge Novak has issued a new ruling as well. He says Ms. Halligan's response, in which she was joined by both the Attorney General and the Deputy Attorney General, contains a level of vitriol more appropriate for a cable news talk talk show and falls far beneath the level of advocacy expected from litigants in this court, particularly the Department of Justice. The court will not engage in a similar tit for tat and will instead analyze the few points that Ms. Halligan offers to justify her continued identification of her position as United States Attorney before the court. Ultimately, the court concludes, for the reasons that follow, that Ms. Halligan's continued identification of herself as the United States Attorney for this district ignores a binding court order and may not continue otherwise. Ms. Halligan and anyone who joins her on a pleading containing the improper moniker subjects themselves to potential disciplinary action in this court pursuant to the court's local rules.

A (52:46)

Yep. Yep. Now, as far as her getting in trouble for making false statements to the court by calling herself the U.S. attorney, the judge says the court recognizes that Ms. Halligan lacks the prosecutorial experience that has long been the norm for those nominated to the position of U.S. attorney in this district. Consequently, and in light of her inexperience, the court grants Ms. Halligan the benefit of the doubt and refrains from referring her for further investigation and disciplinary action regarding her misrepresentations to this court at this time. Basically, you are too dumb to punish.

B (53:21)

I. You know, I'll give him a lot of credit. That was the classiest smackdown I've seen in a while. But I'm also so disappointed. I've been predicting for months that this whole.

A (53:32)

Remember how John Jr. Was too dumb to crime? Like, he. Remember when under the Mueller investigation, we're like, come on, come on.

B (53:39)

I know a lot of criminals. You're never too dumb to crime. I'm just saying.

A (53:44)

Yeah. Also, check this out. This is interesting. Andy, I just got this breaking news. Pam Bondi has filed a motion in Judge Cannon's court arguing that Judge Cannon should not release volume two of Jack Smith's final report. Judge Cannon put out an order saying that my injunction against releasing Volume 2 is going to expire on February 24th, and if you have anything you want to say about it, you have until then to do it. Pam Bondi has done this. She says that Canon shouldn't release volume two of Jack Smith's final report because it's protected by deliberative process privilege. It's not. And because Jack Smith was appointed improperly. Now, he wasn't. But my question is, does that single sentence open up the appeal of Jack Smith's appropriate or inappropriate appointment? Again, that would be so funny to me if. Now, if they come back and Judge Cannon says, yeah, he wasn't appointed properly, so I can't release the thing. And then they went to the 11th Circuit. In the 11th Circuit, they relitigated whether he's appointed properly or not because they've been able to say Republicans have been able to say, and they brought it up several times in the Jack Smith hearing. You weren't even appointed properly. You weren't even, you aren't even a real boy or whatever. And that would take away that. I don't think that they would win that if they had to litigate that all the way up to the Supreme Court. I mean, I'm sure the 11th Circuit would say, yeah, he was appointed properly. Not quite sure about the Supreme Court, but I mean, come on, that would get rid of all future special counsels and all past special counsels and open up previous special counsel investigations to relitigation. But I think it would be hilarious if this opened up Jack Smith being able to argue that he was appointed properly and get a ruling on that, because we never got that ruling.

B (55:38)

So frustrating. So frustrating. I share your hope, but. But I don't think it's going to happen. But it would be great if it did.

A (55:45)

Yeah. All right, everybody, we've got a listener question or two and a comment, I think. Maybe. But so if, by the way, if you want to submit a question to us, there is a link in the show notes that you can click on and it will take you to a form where you can submit a question. And we absolutely love your questions. So what do you have for us today?

B (56:05)

All right, so we have one question for today. Allison and I. Sorry, I don't have a name to associate with it, but but if you're listening and it's your question, you will definitely recognize it because it's a long question. It has a lot of, a lot of aspects to it which make it very interesting. So the question is, hey, here's a question for Andy and you, but mostly Andy. Oh, I'm getting tightening my belt here now that Todd Blanch has definitely said that they're not investigating Jonathan Ross. What is stopping the Minnesota and local authorities from getting a warrant to get copies of all the evidence collected by the FBI? What happens when a state judge issues a warrant against a federal agency? Has Andy ever seen something like this? And side note, I'd push back a little against the conclusion that ICE doesn't have to Mirandize people. To me, once they detain you, if they ask you so much as your name, you've been in a custodial interrogation. While I'm obviously not a specialist in criminal law, I'm not aware of a de minimis exception to Miranda where they can take you into custody and ask you a few questions without Mirandizing you. Am I wrong? Okay.

A (57:13)

That's interesting if we take the second part first. Like, let's.

B (57:16)

Because let's do that.

A (57:17)

We had that whole discussion last week, right, like about Mirandizing. Do we have to be Mirandized? And you said for. If you are in questioning custody. What did you call it?

B (57:28)

Yeah, you have to, you have to be subjected to custodial interrogation. So you have to be in custody and you have to be asked like substantive questions. And this is what gets at, at the heart of this question. We are always trained in the FBI and I can't cite like the case law that this is based on, but it is very standard law enforcement training that you are able to ask what's referred to as biographical questions. Those questions do not implicate Miranda. So if somebody comes in and says, I'm not talking to you, you know, you say, where'd you hide the gun? And they're like, I'm not talking to you. I want a lawyer. That's fine, you'll get them a lawyer. You can't ask them any more questions about what they did, but you can, you can then say, okay, what's your full name and what's your address and where do you work? And that, that only those sort of questions that go to like identification. So yeah, that is very standard law enforcement training. That's the way the FBI does it.

A (58:37)

But again, where would you even get the chance to argue that? Because just like the 4A discuss the Fourth Amendment discussion we had earlier about searches with that, with an administrative warrant and not a judicial warrant, now that they're chipping away at the Bivens doctrine, those are civil cases. Those are civil immigration cases, not criminal cases. So what would you even be getting out of arguing about not being Mirandized? Because just like in the fourth evidence, the Fourth Amendment search and seizure thing, it's not like you're on criminal trial and they get to throw out the evidence that they found. Right?

B (59:16)

So it's important, it's important to remember, like, what is Miranda for? Miranda is simply the means by which we protect your Fifth Amendment rights. Right. Against self incrimination. So that's why you have to be, you have to be advised of your fifth Amendment right. That's what Miranda is, the advice of rights. And then you get the, you decide whether you want to talk or not. You don't have a right to not identify yourself. You, you can get identified whether you like it or not.

A (59:47)

If.

B (59:49)

And that's why it's so the mere, the mere identification issue is not in and of Itself incriminating. Right. You know, it's not something you can conceal from law enforcement. When you get brought into the. Brought into to be arrested, you get fingerprinted, you get maybe DNA, whatever. Not DNA. DNA is different because that's more of like a bodily kind of entry. Whatever.

A (60:16)

I don't know. That's.

B (60:17)

That's the wrong word. But anyway, so, yeah, you don't. Because there's not the same sort of incriminating aspect of that. Biographical identity, information. That is my guess as to why it's not. It's not the same as asking someone like, where were you on the night of the murder? Like that sort of thing. That's how, that's why the law sees it differently.

A (60:47)

Now, what about the warrant thing? Local Minneapolis prosecutors, Ellison or Moriarty, Hennepin County DA gets a judge to sign a warrant to the FBI. Does the FBI have to comply with that warrant in order to get, you know, the evidence that they need, for example?

B (61:04)

Right, right.

A (61:06)

So.

B (61:06)

Good question. It's. First of all, I've never seen it ever happen, not once. And I've seen all kinds of warfare going on between different jurisdictions. Access to witnesses, access to evidence, stuff like that. It. It's not. Doesn't happen all the time, but. But it does happen now. And again, I think. My, my. I haven't had an opportunity to really, like, do the legal research on this, but my strong guess is that this is based on the Supremacy Clause, that a state government cannot take action against the federal government by. By its own power. Right. A state government can sue the federal government or sue the United States of America in court. It's one of the very rare circumstances in which the Supreme Court has original jurisdiction over a case like that. But they can't take state process or state law enforcement authority or judicial authority and impose it upon the federal government. And that is based on the Supremacy Clause of the Constitution, which makes it clear that federal law is supreme to state law. And that's just kind of how it has to work. Right. For a federation of states that is governed by one national law.

A (62:23)

I don't know if that makes sense. So it sounds like at least in your career, nobody's ever a state has never tried to get a warrant for. Never evidence.

B (62:34)

Never. I don't think you can. I don't think it's legally possible. I don't think any state judge would sign a warrant on facts like that. And if you tried to serve it on the FBI or a U.S. attorney's office, they'd just laugh. You out and nothing would come of it.

A (62:50)

But you've never gotten one or dealt.

B (62:53)

With one, never seen one, never heard of it happening.

A (62:56)

Interesting. If anybody has any information or knows the legal answer done in the legal research, we'll also dig into this, but please, please feel free to send it to us. And again, you do so at the same spot you submit your questions, which is the link in the show notes. You can submit your question or, or let us know if you found anything, any precedent on that. I, I've never heard of it, but I haven't been in law enforcement for 20 years.

B (63:20)

So there you go.

A (63:23)

20 plus years. Excuse me, 20 plus years.

B (63:26)

Don't forget the plus. It's like I solved the 8 plus. I've stopped 8 plus wars, right? Isn't it like the same thing?

A (63:32)

8, 9, 10, 12. What is the clause? It's like in Mr. Mom. Would you use a 22, 22, 23. Whatever it took. All right, everybody, thank you so much for your amazing, thoughtful questions. Again, there's link in the show notes to send them to us. Do you have any final thoughts before we get out of here today? I mean, there's just so much news that we can't possibly cover it all.

B (63:55)

But yeah, I mean, you know what big snowstorm coming to my part of the country this weekend. I'm looking forward to like never getting out of my pajamas for like three days and just like, I don't know, binging Netflix or something and trying to forget about this stuff for a little while. It's, it's hard, man. It's a downer. All this news can be really crushing.

A (64:19)

I do have a little bit of breaking news to part with. I always go and I always check my feed like the, the second before we end the show. And you remember how earlier I was like, I wonder what happened to that FBI agent that tried to open the investigation into Jonathan Ross. This is from the New York Times. An FBI agent who sought to investigate the federal immigration officer who fatally shot the 37 year old woman in Minneapolis this month has resigned from the bureau. The agent, Tracy Mergan, left her job as supervisor in the FBI's Minneapolis field office after bureau leadership in Washington pressured her to discontinue the civil rights inquiry into the immigration officer. And that's according to one of the people. Ms. Mergan's resignation was only the latest shockwave to emerge from the Justice Department's handling of the shooting case. So there you go. It's Ms. Mergan. She opened the civil rights investigation. Washington FBI pressured her to close it and she's resigned.

B (65:18)

Oh, it's so sad. I feel terrible for her and sending her all kinds of strength and hope. And that is a tough time. Everybody's got to have their red line. And when the time comes that you're being pushed to do something that you know is inconsistent with your oath and inconsistent with your morals and your understanding of the law, then that's when it's time to go. And I assume that's probably the calculation that Traci went through and I respect you for it and thinking about you. So hang in there.

A (66:00)

Yeah. And generally these come down to it's not like people say, well, then I quit. Usually what happens is that the folks in Washington say, do this or you're fired totally. And then they resign rather than be fired.

B (66:16)

Yeah.

A (66:17)

Or don't do this. Close this investigation or you're fired. So we got that answer before the end of the show. That's how fast the news is breaking. So thank you everybody again for listening and we will see you next week on Unjustified. I'm Alison Gill.

B (66:31)

And I'm Andy McCabe.

A (66:33)

Unjustified is written and executive produced by Allison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds. And the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information, please visit mswmedia.com.