BARD - Don Lemon, Luigi Mangione, and the Limits of Federal Power

Summary

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Podcast Summary: Reasonable Doubt

Episode: BARD - Don Lemon, Luigi Mangione, and the Limits of Federal Power
Date: February 1, 2026
Host: Mark Geragos
Co-hosts: Tenny Garrigus, Gary Smith
Special Guests (audio clips): Don Lemon, Karen Agnifolo, Luigi Mangione’s legal team

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Overview

In this episode, Mark Geragos, joined by co-host Tenny Garrigus and producer Gary Smith, explores recent major legal stories and their implications for constitutional rights and federal power. The hosts take a deep dive into the DOJ’s arrest of journalist Don Lemon, analyze a significant pretrial decision in the Luigi Mangione capital case, and discuss transparency issues arising from the latest unsealed Jeffrey Epstein-related documents. Throughout, the conversation is candid, legally insightful, and filled with the signature banter of veteran criminal defense practitioners.

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Key Discussion Points & Insights

1. The Arrest of Don Lemon and Federal Overreach

[01:48–10:16]

• Context: The DOJ arrested CNN anchor Don Lemon under the FACE Act and the Klan Act, charges typically related to actions impeding access to reproductive health services and civil rights violations.
• Legal Mechanics:
  • Initial attempt to secure an arrest warrant failed; a magistrate judge declined to sign it ([03:51–04:01]).
  • DOJ “appealed” to an Article III judge, a rare federal procedure, showing prosecutorial determination ([04:02–04:36]).
  • Don Lemon was ultimately indicted by a grand jury and arrested late in the week, “scooped up” in anticipation of a Friday morning grand jury ([05:32]).
• First Amendment Collision:
  • Geragos underscores the clash between federal statutes and constitutional free speech/religion protections ([06:32–07:51]).

    “How the heck can you not have a First Amendment clash here?” — Mark Geragos [06:32]

  • Once reluctant, Geragos concedes (after research) that the Face Act can lawfully reach activity on private property, including religious services ([06:32–07:51]).
• Don Lemon’s Statement ([01:57–03:02]):

  “I will not stop now. I will not stop ever. Last night, the DOJ sent a team of federal agents to arrest me in the middle of the night for something that I've been doing for the last 30 years and that is covering the news. The First Amendment... protects that work for me and for countless of other journalists who do what I do. I stand with all of them and I will not be silenced. I look forward to my day in court.” — Don Lemon [01:57]

• Predicted Defense Tactics:
  • Discussion of anticipated Rule 12 motion to dismiss based on First Amendment and prosecutorial conduct ([07:58–10:01]).
  • Notable that Lemon’s legal team is led by Abby Lowell, recently in the news for other grand jury victories ([07:58–08:42]).
• Insight into Federal Prosecutorial Discretion:

  “You find me any male walking around in the state of California and a U.S. assistant United States Attorney can find three violations of the Title 18 Code... which... becomes the argument for prosecutorial discretion.” — Mark Geragos [11:11]

• Bureaucratic Jockeying: The hosts discuss the strategy DOJ used to obtain the indictment and reflect on how little-known “grand jury days” play into federal criminal defense logistics ([04:36–05:31]).

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2. Luigi Mangione Case: Limits of Federal Power over the Death Penalty

[11:45–15:49]

• Background: Luigi Mangione was facing federal capital charges, with simultaneous state and federal prosecutions raising double jeopardy concerns.
• Victory for Defense:
  • The federal district judge removes the death penalty from the government’s arsenal pretrial—an almost unheard-of defense win.

    “There are lawyers who fight for years, decades to get the death penalty removed and they did it pretrial. Kudos to them.” — Mark Geragos [13:33]

• Legal Rationale:
  • The judge ruled that “stalking” is not a crime of violence under the relevant statute, hence ineligible for the death penalty ([14:26–14:37]).

    “That stalking is not a crime of violence to make it be a death penalty eligible offense.” — Tenny Garrigus [14:26]

  • Emphasized the judge's strict statutory interpretation, embodying the principle of judicial bravery when upholding constitutional and statutory limits on federal power ([14:37–15:44]).
• Double Jeopardy Concern:

  “Mr. Mangione is being charged in three different cases for, for one incident. So we're, we're going to continue to fight for that as well.” — Karen Agnifolo [13:25]

• Team Effort: Shoutouts to the defense team (including Karen Agnifolo and Jacob Kaplan), who coordinated strategy across jurisdictions ([11:45–12:35]).

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3. Transparency, Redaction, and Discovery: Epstein Document Dump

[16:30–20:57]

• Epstein Emails: The hosts examine a newly released, highly circulated but heavily redacted email allegedly drafted by Jeffrey Epstein, possibly to Bill Gates, containing bizarre and scandalous personal references ([17:26–18:14]).

  “To add insult to injury, you then implore me to please delete the emails regarding your STD... and the description of your penis.” — Mark Geragos, reading Epstein email [17:42]

• The Problem of Redactions:
  • The lawyers lament over government opacity in criminal discovery, empathizing with public frustration at missing details in high-profile disclosures.

    “Welcome to my world. Everything’s redacted, right?” — Mark Geragos [18:29] “Like a welcome to our world where the government just turns over wholesale redactions to us, as if that's an appropriate way to give us discovery.” — Tenny Garrigus [18:51]

  • Example shared of discovery where pages “just the page number was the only thing visible, and everything was black” ([19:05–19:24]).
• Attorney’s Eyes Only (AEO) and SEPA Restrictions:
  • The increasing use of protective orders further limits even defense attorneys’ ability to share discovery with their own clients ([20:07–21:04]).

    "AEO is the government's way of saying you can't tell your client. How about driving a wedge between you and your client and... being hamstrung on the defense?" — Mark Geragos [20:40]

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Notable Quotes & Moments

• On Prosecutorial Discretion:

  “You find me any male walking around in the state of California and a U.S. Attorney can find three violations of the Title 18 code... that becomes the argument for prosecutorial discretion.” — Mark Geragos [11:11]

• On Grand Jury Day Tactics:

  “Get your clients ready on Friday mornings... the grand jury is going to indict you. They're going to come scoop you up.” — Mark Geragos [05:32]

• On Transparency:

  “This is what we... we've become jaded to. This. This is all we fight about anymore.” — Mark Geragos [19:50]

• On Judicial Bravery:

  “One of the great things about the judiciary is when they step up, especially in a case where there's no reward for doing the brave thing and they make a decision that is sound from a statutory and a constitutional basis.” — Mark Geragos [15:24]

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Timestamps of Important Segments

• [01:57–03:02] – Don Lemon’s public response after arrest
• [03:32–07:51] – Analysis of the federal arrest process, judicial hurdles, and likely defense strategies
• [11:45–15:44] – Luigi Mangione death penalty decision, legal rationale, and double jeopardy concerns
• [16:49–18:29] – Epstein email excerpt and debate over redacted government disclosures
• [20:07–21:04] – Critique of Attorney’s Eyes Only and restricted discovery

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Episode Tone & Takeaways

• Tone: Frank, slightly irreverent, filled with war stories and inside-baseball about legal system mechanics.
• Practical Insights
  • The scope of federal prosecutorial power is broader—and more discretionary—than most suspects or the public realizes.
  • Judicial decisions protecting statutory and constitutional limits can still be achieved through persistent and principled advocacy.
  • Transparency issues and redaction excesses are routine frustrations for defense attorneys and by extension, their clients—and the public.
• For Listeners: The episode is a vivid blend of legal strategy, real-life courtroom dynamics, and a healthy skepticism of unchecked state power, making it both an earful and an education for anyone interested in high-profile criminal justice matters.

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Transcript

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[Mark Garagas]

this is beyond a reasonable doubt with your hosts, Mark Garagas and Gary Smith. Well, and today our very special co host, Tenny Garrigus. I'd like to say that right now we're bicoastal Garagai in trial. So Teddy, thank you for joining me. And without.

[Tenny Garrigus]

It's very frustrating though because you're usually supposed to be here while I'm in trial to make to help me out and now you have your own job.

[Mark Garagas]

Yes, I know my day job got in the way. You know whose day job got also got in the way is none other than Don Levin. Let's see a little video.

[Don Levin]

I want to thank everybody for their support. It really, truly means the world to me. I have no idea what's going on because obviously I haven't seen anything. I have spent my entire career covering the news. I will not stop now. In fact, there is no more important time than right now, this very moment for a free and independent media that shines a light on the truth and holds those in power accountable. Again, I will not stop now. I will not stop ever. Last night, the DOJ sent a team of federal agents to arrest me in the middle of the night for something that I've been doing for the last 30 years and that is covering the news. The First Amendment of the Constitution protects that work for me and for countless of other journalists who do what I do. I stand with all of them and I will not be silenced. I look forward to my day in court. Thank you all.

[Mark Garagas]

So that was Don standing right next to his husband, who I. I haven't seen Don in person since Ben's wedding. Have you, Teddy? So, for those who don't know if you've been living under a rock, DOJ arrested Don Lemon last night. As we tape this, it's Friday night, and they. They got him on Thursday. Teddy, you want to take a wild guess as to why they waited until Thursday?

[Tenny Garrigus]

I. To go into the grand jury, and I think it was last week. They tried to get a judge to sign a complaint for him, and the judge wouldn't sign the complaint, and so they probably. Do we know if he was arrested on an indictment or a complaint?

[Mark Garagas]

Yeah, this. So my understanding of what happened is the magistrate judge last week wouldn't sign, I believe, an arrest warrant.

[Tenny Garrigus]

Right.

[Mark Garagas]

Then.

[Tenny Garrigus]

I thought it was a complaint.

[Don Levin]

Yeah.

[Mark Garagas]

They then appealed that refusal to sign based on an affidavit that was signed under penalty of perjury. The magistrate did sign as to three people, but not as to Don Levitt and I believe, one other. Then they appealed. The DOJ appealed that to the Article 3 judge, which you can do in. In bail situations, but it's not.

[Tenny Garrigus]

How did they appeal it if there was no charged case yet? Oh, for the charge case for the other three?

[Mark Garagas]

Well, there was a charged case, but they tried to appeal, say that they had a right to appeal. The failure of the magistrate or the rejection of the magistrate. The supervising judge in that district took great umbrage to that, wrote a letter, because when he refused to engage, apparently he was not allowed into the courthouse. They then wrote a letter to the 8th Circuit. 8th Circuit, then, I think, mandated it back. Three judges there, ironically, two of which were on my panel for Partridge. But then what they did is, apparently, to your point, waited for the grand jury, which, for those who don't know, isn't it astonishing to you, Teddy, how many people don't know in their own districts what day they grand jury, what

[Tenny Garrigus]

day the grand jury is meeting?

[Mark Garagas]

Yes. Teddy and I, our little inside joke is to get your clients ready on Friday mornings because. Or Thursday nights in this case, if you're Don Lemon, because the grand jury is going to indict you. They're going to come scoop you up. So, mind you, the magistrate judge doing his duty or his or her duty, doesn't sign it. And then guess what? Then they end up IND writing done under, for those who don't know, was under the Face Act. And the Clan Act. And then they arrested him here in la.

[Tenny Garrigus]

And another journalist.

[Mark Garagas]

Yeah, Fort. And also I believe there were a couple of others that were still under seal when they. That were redacted when they arrested him because I assume they hadn't picked those people up here on Friday as we're talking about this. So, Teddy, I'll tell you what I. The research.

[Tenny Garrigus]

Tell me. Yeah, go ahead.

[Mark Garagas]

So when I first saw this last week, I was aghast and said, of course it was rejected. How the heck can you not have a First Amendment clash here? The practice of religion and the practice of free speech. I was aghast and was schooled by my research that, yes, the Face Act, I think sub B of the statute actually says, spells out a religious service. And. And on private property, there's circuit cases that say this is kosher. And including our friend Harbeet, defended a Biden DOJ conviction in the 11th Circuit recently, within the last 60 days in a published decision on a vandalism at an abortion clinic. And so once again, the John Clamako Goosey Gander rule. Here we go again. You know, DOJ depends on whose ox is getting gored, but, boy, Don is going to get his day in court because

[Tenny Garrigus]

I don't enter. This is what I was wondering. Why did he not have to enter the plea when he was presented?

[Mark Garagas]

Well, I think they want to, you know, he's represented by Abby Lowell, and I think they had a local council here today. I'm sure Abby was not expecting to have to fly out from D.C. to that Don was going to get arrested on a Thursday. Abby, who's coming off of. He and David Kalansky shout out to David for their. Their dismissal on Tish James, also with a. In that case with a grand jury, refused to get browbeat. But this case I believe they're going to challenge probably a Rule 12 motion to dismiss. What do you think?

[Tenny Garrigus]

I would think so. I'm sure it will be great.

[Mark Garagas]

Yeah. And interestingly, you're going to go in front of the district where the presiding judge is none too happy right now with the DOJ. His letter to the 8th Circuit is dripping in invective towards the DOJ, and that's the chief judge. And I don't know who this case has been randomly assigned to, but if it's the chief judge, maybe that's why they didn't enter the plea and they just want to do the Rule 12 and say that they're not going to.

[Tenny Garrigus]

It was in front of the magistrate. He didn't Enter the plea. That's what I was just wondering if there was a if that's how it worked in the Central District of California.

[Mark Garagas]

I do not think that. I mean, I'll take that back. A lot of times I've been in Roy Ball, where they. They can take the position that you could go enter the plea or go see the Article 3. Judge. So maybe that's what they asked to do.

[Tenny Garrigus]

Got it.

[Mark Garagas]

A couple of other moves that I thought they may make that they didn't do it. So Abby must be laser focused, I would imagine, or Kalansky's already writing up

[Tenny Garrigus]

the Rule 12, I'm sure.

[Mark Garagas]

Right. So the next one. But by the way, what do you think of this, Teddy? I mean, the idea of first, it's really a clash within the first. It's like an Internet in First Amendment battle.

[Tenny Garrigus]

Never had a Face act case before.

[Mark Garagas]

You know, by the way, there's so many of these acts you'll remember 20 years ago, I did the Protect Act.

[Tenny Garrigus]

Yes.

[Mark Garagas]

And I could never get my head around the fact that if you entered

[Tenny Garrigus]

the airport and with a thought in your mind.

[Mark Garagas]

Yeah. Leaving the country with the thought. With the criminal thought in your mind, that you could be prosecuted in the United States. So, I mean, there's a lot of. We really. We really push the envelope on some of these federal crimes. Which brings me back to Judge Kaczynski, cpa.

[Tenny Garrigus]

If you're doing. If you're doing work in another country, have never even been here, have never even done anything here. No aims against the United States at all. You can be prosecuted here. We can get everybody.

[Mark Garagas]

Like I said, Judge, I think it was Kaczynski who said, you find me any male walking around in the state of California and a U.S. assistant United States Attorney can find three violations of the Title 18 Code. The person just walking around, if they want to, if they're. If they're creative or inventive enough, which to my mind, becomes the argument for prosecutorial discretion. And you're L. You're living it right now as we speak.

[Tenny Garrigus]

Yeah. It's unbelievable.

[Mark Garagas]

Next up, shout out to Jacob Kaplan and friend of your your and Mark Agnipolo.

[Tenny Garrigus]

And

[Mark Garagas]

you're really on a roll this week. And without further ado, let's play Luigi Mangione, Karen Agnifolo, and that's Jacob Kaplan on the right. And that stylish guy on the left with that beanie I'm jealous of is Mark Agniflo. I'm very jealous of that beanie.

[Tenny Garrigus]

Morning.

[Karen Agnifolo]

Good Afternoon everyone. Just wanted to thank the court for this incredible decision. I want to thank this amazing legal team that we have here. It's really wonderful, all of them and thank all the people who come out, stand here in the cold and the people who can't come here, all the supporters. We get your letters, we get your emails and we really appreciate all the support. So thank you all. Stay warm.

[Gary Smith]

Karen, what was Mr. Mancioni's reaction when

[Mark Garagas]

he learned the death penalty was off the table?

[Karen Agnifolo]

We're all very relieved.

[Mark Garagas]

What was their reaction last night to be attempted break even easy out of prison?

[Karen Agnifolo]

Honestly, we have a big filing that we filed in state court last night and we were anticipating today. So I don't know anything about that. I heard about it and understand that there was not even any mention of Mr. Mangione so I don't know that it is even related. So I really don't know anything about that individual.

[Gary Smith]

Karen, how much of a setback is it that the judge is going to allow the contents of the backpack at trial?

[Karen Agnifolo]

We're prepared and have been prepared to fight this case and we look forward to fighting this case. So do you have any comment about the state trial happening at the same time or possibly earlier than the federal. We're going to work that out with everybody, but we anticipate fighting these charges. So thank you. Thanks everyone. You know, double jeopardy is a big thing here, right? Mr. Mangione is being charged in three different cases for, for one incident. So we're, we're going to continue to fight for that as well. But thanks everyone. Thanks for being here.

[Mark Garagas]

Bye everybody. Let me just try to set the stage here. What the federal district court judge did was basically take the death penalty off the table. There are lawyers who fight for years, decades to get the death penalty removed and they did it pretrial. Kudos to them. Jacob Kaplan needs a shave. But other than that it was his

[Tenny Garrigus]

father passed away and so it's a,

[Mark Garagas]

it's a. I know, I know. And I, I, my, my barber had the same thing and schooled me on it so I still could tease Jaco. It's quite a win you Teddy. On the legal grounds. It was that a, as I understand it, correct me if I'm wrong.

[Tenny Garrigus]

Yeah, well, I don't want to comment because even though I'm not on the case, it's my firm but that stalking is not a crime of violence to make it be a death penalty eligible offense.

[Mark Garagas]

And that was the argument, that was the ruling as well by the judge and if it's not a. And by the way, for those who say, what are you talking about? How is stalking not a crime of violence? You have to take a look. For those who always say strict constructionist and no activist judges, that's exactly what the judge did. Strictly construed, the statute speaks volumes to what happens when you get these prosecutorial gang bangs and meaning you've got a federal prosecution, you got a state prosecution, you're bouncing as Karen says, she's. I think she's even bouncing around in the Pennsylvania As. And I think it's one of the great things about the judiciary is when they step up, especially in a case where there's no reward for doing the brave thing and they make a decision that is sound from a statutory and a constitutional basis.

[Tenny Garrigus]

Huge success. Huge success. Very, very proud of my partners.

[Mark Garagas]

And yes, and next week, I'm not going to get you in trouble either, but you return to trial and next week, Gary, by the way, Gary, some of your clips this week didn't play, but it wasn't your fault. I'm blaming the other guy in court. So I'll tell you about that. But Teddy's got a big week. I got a big week and it's.

[Tenny Garrigus]

I wish we had your opening. We could play. Do you have that, Gary, or. No, he didn't bring it up.

[Gary Smith]

His opening from his trial.

[Tenny Garrigus]

Yeah, apparently it was televised.

[Gary Smith]

I did not know that that was televised. I would have watched that and had it ready. But no, I'm unfortunately unprepared for that. But I will say that if my clips didn't play, that's user error.

[Mark Garagas]

Yes, I was user error. It was not the producer error. So we're going to end today, though, with also the Epstein latest dump. And there was one in particular. Gary's got it here. This is purportedly, and I say purportedly an email. Gary, do you want to describe.

[Gary Smith]

I will give you my understanding of what the Internet is saying. The Internet is saying that this is a letter, this is an email, and this is only a section that we are showing. If you are watching us on YouTube, YouTube.com reasonable doubt podcast, be sure to subscribe while you're there. But this is a section of an email that Jeffrey Epstein emailed to himself. But the email starts off Bill dash and the Internet believes that this is an email that Jeffrey Epstein possibly drunkenly wrote to Bill Clinton and then at the end of it, once he was finished, decided Bill Gates. I'm sorry, I'm sorry, Bill Gates. I'm sorry. That was My mistake.

[Mark Garagas]

One of the telltale. Yes, One of the telltale reasons is Melinda surreptitiously give to Melinda, Right?

[Gary Smith]

Correct. So it is supposedly an email that he drafted to send to Bill Gates and then ended up sending to himself.

[Mark Garagas]

And it says, to add insult to injury, you then implore me to please delete the emails regarding your std, your request that I provide you antibiotics that you can surreptitiously give to Melinda, and the description of your penis. You also made it clear to me that I'm not to refer to redacted, as that is another topic that must remain between the two of us. This, Gary, how much action is this getting on the Internet?

[Gary Smith]

I mean, as with all things on the Internet, it depends what. What corner you decide to hang out in. But if you hang out in the right corners, it's getting all the play. And if you hang out where I try to hang out, it's not as much.

[Mark Garagas]

So, Teddy, I want your opinion. We'll end with this. A lot of people are complaining, victims included or purported victims included, at the massive redactions, and my reaction is to redactions where they black out portions of this. I said, welcome to my world. Everything's redacted, right?

[Tenny Garrigus]

Am I. I mean, that's the best reaction. Like a welcome to our world where the government just turns over wholesale redactions to us, as if that's an appropriate way to give us discovery.

[Mark Garagas]

I'm trying to remember which case recently there was. I swear, there were a thousand pages where just the page number was the only thing visible, and everything was black, and I just kept flipping and flipping it. It was all redacted. I cannot believe. Do you remember this, Gary?

[Gary Smith]

I do, and I. But I do want to point out. I know before we started, I argued against showing the whole email, but I'm going to show it here just for a second. That's the only redaction that's pretty mild.

[Tenny Garrigus]

That is mild.

[Gary Smith]

For a government document to have that only be the redaction. That's pretty mellow.

[Mark Garagas]

So stop bitching and boning and welcome to the world of criminal defense for those.

[Tenny Garrigus]

Yeah, exactly.

[Mark Garagas]

Exactly. This is what we. We've become jaded to. This. This is all we fight about anymore. So true. I have.

[Gary Smith]

I have quite literally seen documents where it is the opposite of what I just showed you, where there is, like, two words that are not redacted. And quite literally everything else on the page is.

[Mark Garagas]

Well, but the latest one, that I swear, you know, Gary's heard me tell this story a million times, as is Teddy, where I refuse to get a security clearance for SEPA purposes for the Classified Act. And I'm starting to get to the point where I'm going to expand that stand to AEO attorney's eyes only. I'm.

[Tenny Garrigus]

So we should. We. We honestly should. I feel like we're getting. Were getting just, like, railroaded with these ridiculous protective orders, and then they just say, like, we'll take it. Aeo?

[Mark Garagas]

Yeah. AEO is the government's way of saying you can't tell your client. How about driving a wedge between you and your client and how. And being hamstrung on the defense. I don't know how it started. I don't know why I participate, but I don't think I'm going to participate.

[Tenny Garrigus]

You're right. How did it start?

[Mark Garagas]

I don't know.

[Tenny Garrigus]

Like, it's all normal. We'll just. We'll take it Attorney's eyes only.

[Mark Garagas]

Attorney's eyes only. And it didn't. I mean, 45 years ago, this never happened. 30 years ago, this didn't happen. All of a sudden, it's attorney's eyes only. Proliferates everywhere.

[Tenny Garrigus]

Yeah.

[Gary Smith]

Well, I would like to just interject that Mark said earlier that we were recording this on Friday night. It is officially now Saturday morning for Tenney. So I think we should probably let her go. She's a trooper for Joy. No, no, no, it's okay. I just want people to understand, you know, there's a time difference here, and you're.

[Tenny Garrigus]

You're fighting the week two of trial. It's exhausting.

[Gary Smith]

Well, we appreciate you joining us.

[Mark Garagas]

Thank you.

[Tenny Garrigus]

Thank you guys for having.

[Gary Smith]

Bye, guys. Thanks for listening to Reasonable doubt.

[Mark Garagas]

Subscribe on [e-mail] Reasonable Doubt podcast.