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UnJustified
Alito’s Worst Nightmare
00:56:23
The American Civil Liberties Union files a motion for an en banc re-hearing of Judge Boasberg’s criminal contempt opinion after a three-judge panel stayed his ruling. Attorney General Pam Bondi continues her assault on the Department of Justice by sidelining career attorneys causing every member of the Sanctuary Cities Working Group to resign. The DC US Attorney’s office fails to return indictments from federal grand juries as another judge lambasts federal prosecutors. CIA Director John Ratcliffe and Tulsi Gabbard clash over her disclosure of an undercover officer’s identity. Plus listener questions…
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- [00:01]
Allison Gill
MSW Media.
- [00:07]
Andy McCabe
The American Civil Liberties Union files a motion for an en banc rehearing of Judge Boasberg's criminal contempt opinion after a three judge panel stayed his ruling.
- [00:19]
Allison Gill
Attorney General Pam Bondi continues her assault on the Department of Justice by sidelining career attorneys, causing every member of the sanctuary city's working group to resign.
- [00:29]
Andy McCabe
Yet more problems for the D.C. u.S. Attorney's office failing to return indictments from federal grand juries as another judge lambasts federal prosecutors.
- [00:40]
Allison Gill
And CIA Director Ratcliffe and Tulsi Gabbard have clashed over her disclosure of an undercover officer's identity. This is unjustified. Hey everybody. Welcome to episode 33 of Unjustified, the podcast covering Trump's Department of justice. It's Sunday, September 7th, 2025. I'm Alison Gill.
- [01:07]
Andy McCabe
And I'm Andy McCabe. Another. Hey, Alison, Another packed week here. I feel like it's starting to become harder to figure out what not to put in the show than to what, what to put in the show. Because there's so much every week I have to tell you. One of the things I know we're not going to go into detail about this, but it really grabbed my attention this week was the DOJ Inspector General's release of their report of investigation of on Charles McGonagall.
- [01:34]
Allison Gill
Ah, yeah, McGonagall, that, yeah, Pete sent me an article about that and all of the things that he was, he was doing that were, you know, in violation of law. It's pretty, it's kind of stunning.
- [01:48]
Andy McCabe
Yeah, it really is. I mean, it's, I think it's probably stunning for anyone to read it. Even more so for people like Pete and myself and other friends of mine who we all know, Charlie, we worked with him for many years and obviously before his word of his trouble came out a year or so ago, you know, we were just stunned. Like this guy who had, we thought, such a great reputation and the organization was involved in this stuff. So just very, very basically what this report lays out is something new. So you may remember that, that Charlie was charged in the D.C. federal, federal district court and he ultimately pled guilty to offenses there involving things like lying to the FBI about his foreign travel and for having engagements with foreign agents that he failed to report things like that. So he pled guilty to that in Washington, D.C. at the same time he was indicted in the Southern District of New York for other criminal activity for violating sanctions by taking a job from noted sanctioned oligarch Oleg Deripaska and then engaging in money laundering to Cover up the income he was earning, illegally earning from that job. So he pled guilty to those crimes in the Southern District of New York. He's facing a very long sentence right now. And what this new report reveals to us is at the same time that he was engaged in this criminal activity, he was also, as the head of the counterintelligence division in New York City, he was obstructing justice by illegally and inappropriately sharing information from a multi year investigation of basically unregistered foreign agents, people who were working on behalf of a Chinese government energy company and a nonprofit related to that company. And yeah, the allegation is that Charlie shared information with some of the targets of that investigation so that they could avoid arrest and detention here in the United States. Just a unbelievably a stunning recitation of horrible activity for any FBI agent to be in. And again, we're just all kind of shaking our heads in. In disbelief. But a really revealing report.
- [04:20]
Allison Gill
Hmm. Wow. Yeah, I had read some of the names sounded familiar to me. There's Gao Luft, who was an arms trafficker and an agent of China, unregistered foreign agent and apparently was able to kind of. Or at least was tipped off to avoid arrest. You know, based on this, just really, really, really stunning stuff from. I think that Booma guy was involved in all this and was like, you know, I just, I. Hard to believe that somebody who spent that many years encounter intel and the FBI would get wrapped up in this stuff knowing.
- [05:02]
Andy McCabe
Yeah.
- [05:02]
Allison Gill
How good the FBI is at uncovering it. Well, used to be.
- [05:05]
Andy McCabe
Yeah. Like really just turning against the mission that he had spent his entire career supporting and, you know, the sort of targets he spent his entire career. Charlie was a CI counterintelligence guy from day one until the day he retired. And to have him involved in this kind of stuff is just. It's just really, really awful. But yeah, not only did he do it, he did it a lot. He was involved in all these three separate kind of lines of distinct kind of malfeasance at the same time. So hopefully that's the last we'll hear of this. But yeah, just a really troubling story and one obviously that comes out of the FBI and part of the Department of Justice. So thought it was worth mentioning here. We got to be here to talk about the good and the bad. And so, yeah, there you go.
- [05:58]
Allison Gill
Yeah. And we're going to talk more about some intelligent stuff between the DNI and the Director of the CIA. We're going to do that a little bit later in the show. But first, Andy, let's start with Attorney General Pam Bondi and her continued assault on the Department of Justice and the personnel who work for the Department of Justice. This first story comes from the Washington Post. In the first weeks of the current Trump administration, Justice Department officials gave a select group of top senior career attorneys a choice. You could either quit or go to a newly created sanctuary cities enforcement working group. And about a dozen lawyers from very high profile sections, including the civil rights and national security divisions, agreed to the transfer, jumping into an area that most had no experience, but, you know, they knew it was one of the department's top priorities. And six months later, all of those attorneys, they've all left the Department of Justice for good. The last one packing up this week. That's why this is a story that's coming up this week. And five people familiar with the working group say they got the impression that the task force was designed to do nothing but frustrate and eventually force out lawyers the administration felt it could replace with people more loyal to the president.
- [07:10]
Andy McCabe
The working group's name may have suggested its members would be helping to challenge sanctuary city policies, which municipalities use to limit or prohibit their employees from cooperating with federal immigration enforcement. But instead, the people said, members were asked to do Google type searches and other menial research on those policies and were told there was no need to communicate with the lawyers who were actually filing high profile lawsuits against such jurisdictions as Los Angeles, New York, and Denver. The assignment was a sham, said Bonnie Robin Vergier, former chief of the Civil Rights Division's appellate section, who quit after six weeks. We did very little. Multiple people familiar with the working group, some of whom spoke on the condition of anonymity for fear of retribution, likened the assignments to New York City's infamous rubber rooms, where public school teachers accused of wrongdoing were paid for doing nothing while waiting for their cases to play out.
- [08:11]
Allison Gill
Hmm. This is like, I have, like, personal experience with this. Andy, when. When it was came to light that I was hosting a podcast about the Mueller investigation, which you made appearances on.
- [08:22]
Andy McCabe
I did.
- [08:23]
Allison Gill
And I covered your book, the Threat. And you did. After all that came out, so what. And the. And the Department of Veterans affairs investigated my podcast and what I was doing in my free time, they started giving me really dumb, like, rubber room tasks. Like, one time I had to. We had just created this amazing interactive website where you could go and learn anything that you needed to know about all of the nursing homes that the VA contracted with. And they made Me, it took me like 60 hours to do this. They wanted a spreadsheet of every nursing home. There's 1800. And they wanted the contact information, the phone number, the email address of the director, the level of VA cooperation, link to the contract I had to put together, basically, like print up the phone book for us, you know, and just stuff like that. So this is like. This rings true. Can confirm, in other words.
- [09:20]
Andy McCabe
Yeah.
- [09:21]
Allison Gill
But the article goes on to say the employees were largely notified of their reassignments before Pam Bondi started as Attorney General in February, which could have allowed the Justice Department to skirt federal guidelines that require a 120 day moratorium on certain staff reassignments after a new Senate confirmed agency leader starts their appointment. The rule is intended to ensure that political leaders do not reassign career staffers without first getting to know them and their work.
- [09:46]
Andy McCabe
So this got around that one, I guess.
- [09:49]
Allison Gill
Yeah, they. They do that, don't they? Get around stuff like that?
- [09:53]
Andy McCabe
Yeah, they're really good at that.
- [09:55]
Allison Gill
So here we are.
- [09:56]
Andy McCabe
Yeah, for sure. So. While some career attorneys left, another stayed from the Times. Emile Beauvais iii, a senior Trump administration official whom you all know from his many appearances on this podcast, or references, I should say, not appearances. Mr. Bovey was narrowly confirmed last month to serve as an appeals court judge, brushing past a bitter confirmation fight, despite concerns that he would carry out the president's directives while on the federal bench. Still, Mr. Bovey has continued to work at the Justice Department. Oh, God. Appearing just last week at a department event to celebrate the crime fighting takeover of the Washington police, according to a video of the gathering. It was just one instance of Mr. Bovey's presence at the department, where he has also attended meetings, according to people familiar with the matter, who spoke on the condition of anonymity to describe the department's inner workings.
- [10:53]
Allison Gill
This is like the. The guy who. It was Ed Martin, wasn't it? Who was a defender of a 1-6-Rider and also dismissed the case of. Yeah. The code of conduct for federal judges does not appear to apply to Mr. Bovey, whose court records show has yet to be sworn in. But the fact that he has remained at the Justice Department is raising eyebrows. Some legal experts say that working for the administration after being confirmed could undermine faith in the court system. H. You don't say. Really? Others. Others expressed worry that Mr. Bovey could expose himself. And you don't want him exposing himself. No, it could expose himself to potential conflicts, advising Justice Department officials on matters that may eventually land before him. As a federal judge, quote, what the rules protect is public trust and confidence in the independence of the judiciary, which is of great value to the country, whether or not there is anything else that is untoward. That's what Stephen Gillers said. He's an expert on legal ethics at New York University's law school. He went on to say, socializing with Trump is fine. Advising Trump is not fine. Putting himself physically in a place where it looks like he's identifying with the President's political agenda is not fine.
- [12:07]
Andy McCabe
Wow, that's Gillers. Gillers is kind of the go to expert on this stuff in any article you ever see. So that's a. That's a significant opinion. A similar situation surfaced in 1991 when J. Michael Ludig, a Justice Department official and newly confirmed judge, continued to help advance Clarence Thomas's nomination to the Supreme Court. His conduct also raised concerns at the time among some ethics experts. Judge Ludig said the two situations were completely different because he was helping the White House and his role was common knowledge then. If it was just a matter of attending an event or two or visiting the department occasionally, that would not matter much, he said. But Judge Ludig added, there's no reason for him to be hanging around the Department of Justice for a month. That, he said, raised questions about what Mr. Bovey might have worked on in that period that he might end up reviewing as a judge.
- [13:05]
Allison Gill
Hmm, interesting. I didn't know that about Judge Ludig.
- [13:09]
Andy McCabe
Yeah, it is interesting, but I'm kind of with him on this. So, like, he was, Ludig was a, you know, he had worked in several White Houses, he worked for Reagan, he worked for H.W. bush. And while in DOJ, he was engaged in preparing, I think, not just Thomas, but also maybe Alito, maybe Roberts. I can't remember the other one. But so, like, finishing that work, supporting the nominee, to me is very different than showing up every day at DOJ for a month and like going to meetings on substantive matters that could potentially end up in front of you as a judge.
- [13:49]
Allison Gill
Exactly. Judge Ludig, as much as I think it was an error to advise and help advance the nomination of Judge Clarence Thomas and the appointment of Clarence Thomas.
- [13:58]
Andy McCabe
There'S a whole different host of issues there.
- [14:00]
Allison Gill
Whole different. Yeah. Conversation that's not going to come before you as a judge. Right, right. But hanging out and, you know, telling the court to off or whatever at the Department of Justice about immigration, deportations, renderings to third party countries and things like that. And of course, we don't know what these meetings he attended were, and they don't go into detail. But anything that could potentially end up before him as a judge, I mean, I, if, if I have a case coming up before him in the Third Circuit, I'm asking him to recuse from everything if it has anything to touches the White House or the Department of Justice, honestly.
- [14:37]
Andy McCabe
Like, there's also an element of, like, leadership. Right. So he was there literally, like the week before or a couple weeks before in his position as the pay dag, which is the primary assistant to the deputy attorney general, one of the highest, most significant positions in the entire department. So as someone who sat in that sort of a leadership role, you can't just walk into a meeting now and sit there and not say anything. Like, people automatically defer to you if you share your opinion, they're going to follow it. You know, it's, it's a different, it's a, it's a different thing. And, you know, it just looks terrible.
- [15:21]
Allison Gill
Yeah, agreed. All right, we have a next another story here about Pam Bondi. This is from NBC. On Friday, she fired a Justice Department employee accused of flipping off National Guard members deployed to D.C. as part of President Donald Trump's stated effort to mitigate crime in the city, according to a Justice Department official. According to the memo sent by Bondi, the veracity of which was confirmed by the Department of Justice, the employee, Elizabeth Baxter, worked as a paralegal specialist in the department's Environmental and Natural Resources Division.
- [15:51]
Andy McCabe
The termination marks the second time this month Bondi has terminated a Justice Department employee for conduct that she's deemed inappropriate towards law enforcement enforcement personnel. Weeks ago, Bondi fired a department paralegal after he was caught on camera throwing a sandwich at a Customs and Border Patrol agent outside of a popular nightlife area in D.C. she wrote at the time that, quote, you will not all caps work in this administration while disrespecting our government and law enforcement.
- [16:21]
Allison Gill
I wonder if the ACLU will take this up. This seems like a First Amendment right violation, flipping off an ICE officer. Anyway, as we know, Bondi initially sought to secure felony charges against the sandwich guy, Sean Dunn, but a grand jury declined to return an indictment, a signal that local residents did not identify probable cause to back that charge. And this week, Andy, federal grand juries continued to refuse to indict certain people. And a judge had some harsh words for D.C. prosecutors in the process. And we'll get to that right after this. Quick break. Stick around. We'll be right back.
- [17:05]
Andy McCabe
Welcome back. D.C. federal grand juries continue to refuse to return indictments. Now this story comes from Scott McFarlane at CBS.
- [17:13]
Allison Gill
Scott. I love Scott McFarlane.
- [17:15]
Andy McCabe
There you go. It's entitled what was happening in the Criminal Case of Natalie Rose Jones, who was facing charges in Washington, D.C. federal court this summer. Wasn't typical. That's a long title, Scott, but all right, I'm going with it. A grand jury of D.C. citizens on Tuesday had denied the Justice Department's request to indict Jones, who was accused of a federal crime, for allegedly posting an Instagram threat against President Trump. In the nearly empty, dimly lit courtroom, Judge Moxilla Opadia listened to arguments from attorneys for nearly 15 minutes and surveyed the case file before her. She paused, looked up at the federal prosecutor standing 10ft away and asked what the Justice Department planned to do next in the case. The prosecutor had no answer, but said he'd have a response, quote, as soon as possible, maybe within a few days. Now, this grand jury's rejection of the Justice Department's request for an indictment was one of at least four such instances in the past week in which a grand jury denied an indictment in the District of Columbia.
- [18:25]
Allison Gill
Yeah. Here's a quote, not only have I never heard of this happening, I have never heard of a prosecutor who's heard of this happening. That's former federal prosecutor Brendan Ballou, who served in the U.S. attorney's office in D.C. until January of this year. Quote, this is not the fault of career prosecutors, but rather the office's failure again and again to secure indictments suggests that the administration has absolutely destroyed its credibility with jurors. That's what Ballou told cbs. Another former federal prosecutor, Victor Salgado, said, quote, it is exceptionally rare for federal grand juries to reject proposed charges, given the low evidentiary bar for an indictment and the Justice Department's policy of pursuing a case only when there's sufficient evidence to both secure and sustain a conviction. So Jones is accused of posting on Instagram in early August, quote, I am willing to sacrificially kill the POTUS by disemboweling him and cutting out his trachea with Liz Cheney and the all affirmation present. No. And the affirmation present. I don't know what the affirmation is, do you?
- [19:28]
Andy McCabe
I really do. I really don't. I'm almost kind of glad I don't. But, yeah, that's, that's quite a statement. But according to the Justice Department, on August 15th, the US Secret Service conducted a voluntary interview with Jones, during which she stated that the President was a, quote, terrorist and a Nazi. Jones was briefly held in pretrial detention in the case last month, but but was released ahead of Tuesday's hearing. She appeared by zoom at the hearing in Upadia's courtroom and listened as a prosecutor told the judge that the feds have not decided whether to return to the grand jury for a second time to seek an indictment. Her attorney, in a court filing this week, said that Jones possessed no firearms and she repeatedly told them that she had no intent to harm anyone, including the President, and she was in D.C. to attend a peaceful protest.
- [20:24]
Allison Gill
Hmm. That's an interesting case, because that does seem like a threat. But a federal grand jury said, nope.
- [20:32]
Andy McCabe
Yeah, I mean, you know, these things. In my experience. First of all, the Secret Service goes out and investigates every one of these, right? They just. They find the person, they sit down with them face to face, and they do an assessment of whether they think that person presents a real threat. Most cases, people are not charged because maybe it was a mistake, maybe they're just like, hey, I shouldn't have said it. I was drunk, whatever. You know, they say something to bring down the temperament temperature of the interaction. And of course, to charge someone, you actually need to be able to present some evidence to a grand jury and get them indicted. And so, and oftentimes, there's nothing more than just the. The unfortunate and maybe not well thought out First Amendment expression of, you know, their opinion. So this happens a fair amount, but they, but they don't really. It's not a high percentage in which people are charged.
- [21:25]
Allison Gill
Yeah. Yeah. And we have another case, too. Also reported by cbs, a federal judge excoriated the Justice Department over its handling of criminal cases during the Trump administration's ongoing federal takeover of D.C. saying at a hearing Thursday that the department has brought, quote, embarrassment and shame upon the government during its rush to charge individuals. This is US District Judge Zia Faruki, and he apologized to Edward Dana, a man who was charged for what the Justice Department and U.S. secret Service said was a threat to kill Trump last month. Dana spent a week in jail only to have the charges dropped Thursday. And, and this is a pretty powerful statement. The judge said that the U.S. is, quote, past the point of constitutional crisis as the Trump administration is playing cops and robbers like children during the federal takeover of Washington's police department.
- [22:20]
Andy McCabe
Yikes.
- [22:21]
Allison Gill
Yeah. Wow.
- [22:23]
Andy McCabe
And in yet another case, A man named Mr. Wilson is accused on information of assaulting a federal officer. But lawyers for Mr. Wilson have presented a pretty solid argument against the charge. They Write Federal Rule of Criminal Procedure 12B.3B v allows a defendant to move to dismiss an information or indictment on the grounds that it fails to state an offense. An information may fail to state an offense if it omits a necessary element of the crime or if the allegations, even if true, do not constitute a violation of the relevant statute. The defect in Mr. Wilson's information could not be more apparent. He's charged with assaulting a federal officer. But MPD Officer Bell is not a federal officer, and the complaint does not establish that he was assisting a federal officer in the performance of his official duties. To the contrary, the complaint alleges that federal officers were patrolling with MPD officers to assist with local law enforcement efforts and encountered a crowd engaged in disorderly conduct. Disorderly conduct is a purely local crime that has no federal analog. The complaint does not allege that enforcing local crimes was a, quote, official duty of any federal officer in this case.
- [23:44]
Allison Gill
Yeah, so it was not a federal officer. He was charged with assaulting a federal officer. And they were trying to say that the Metropolitan Police Department officer had become a federal officer because he was hanging.
- [23:56]
Andy McCabe
Out with FBI agents or something.
- [23:57]
Allison Gill
Yeah, because he was assisting federal officers, but he wasn't. They were assisting him. So that's a pretty good argument.
- [24:05]
Andy McCabe
Yeah.
- [24:05]
Allison Gill
I imagine Mr. Wilson's charges will be dropped, too. And you know, the DOJ is dropping charges also, but of. For other reasons. Right, they're dropping charges for other reasons. Yes, especially those charges filed against friends and family of the administration. This is from abc. For a second time in less than a month, the Justice Department on Wednesday dropped charges abruptly against a client represented by Brad Bondi, the brother of U.S. attorney General Pam Bondi.
- [24:33]
Andy McCabe
Huh. Imagine that.
- [24:35]
Allison Gill
Federal prosecutors in Missouri this week agreed to voluntarily dismiss an indictment against Sid Chakravarti, a property developer who faced felony wire fraud charges. Prosecutors under the Biden administration accused Chakravarti in 2024 of lying about hiring women and minority owned subcontractors on a housing development in order to secure favorable tax incentives. As recently as three weeks ago, career prosecutors held that Chakravarti should face criminal penalties for his alleged scheme. That was just three weeks ago.
- [25:07]
Andy McCabe
Yes, but on Wednesday, the newly installed U.S. attorney for the Eastern District of Missouri, Thomas Albus, a Trump appointee, filed court papers informing the judge overseeing the case that the, quote, defendants have agreed to make restitution of the taxes and. And that it is therefore, quote, prudent for the government to end this criminal prosecution. In his letter to the judge, Albus explained that the decision to drop charges was part of a department wide directive to no longer prosecute cases against those accused of violating, quote, race and sex based presumptions like the Disadvantaged Business enterprise program in St. Louis, so.
- [25:50]
Allison Gill
Oh, so you can defraud those things.
- [25:52]
Andy McCabe
Apparently. I mean, I say, I guess in other words, it's okay now to fraudulently take advantage of tax breaks intended to help women and minorities because we don't like preferences for women and minorities anymore.
- [26:06]
Allison Gill
They're woke.
- [26:07]
Andy McCabe
I guess that's the legal theory. This development comes just weeks after federal prosecutors in Florida agreed to drop charges against Carolina Amnesty, another client of Brad Bondi, who faced two counts of theft of government property related to alleged Covid relief fraud. So I guess, following on our last legal theory, we also don't like Covid relief anymore. So it's okay to steal that money too. Yes.
- [26:37]
Allison Gill
Yeah. Well, remember the Jensen guy got fired from the FBI for carrying out COVID policies?
- [26:42]
Andy McCabe
Yeah.
- [26:43]
Allison Gill
Right.
- [26:43]
Andy McCabe
Yeah. Yeah.
- [26:44]
Allison Gill
So I guess Covid is woke.
- [26:47]
Andy McCabe
I think. I think. Yeah, it's, it's woven, but that's.
- [26:52]
Allison Gill
Yeah.
- [26:54]
Andy McCabe
And what's up with Brad Bondi practicing criminal law in both Florida and Missouri?
- [27:00]
Allison Gill
Yeah, I don't know.
- [27:01]
Andy McCabe
He's got a massive practice, that dude.
- [27:03]
Allison Gill
But I wonder if now these clients of Brad Bondi are going to sue the Department of Justice and the Department of Justice will settle with them.
- [27:10]
Andy McCabe
Yeah. Yeah, for sure.
- [27:12]
Allison Gill
Let's keep an eye on that.
- [27:14]
Andy McCabe
You know it.
- [27:14]
Allison Gill
You know, and if you've been wondering lately, whatever happened to Judge Boasberg's criminal contempt opinion, we were really deep entrenched in, in that criminal contempt in those hearings. If you've been wondering what happened to that and that criminal contempt opinion against the government for failing to turn the planes around that were bound for El Salvador last March, we have an update for you right after this break, so stick around. We'll be right back.
- [27:39]
Andy McCabe
Foreign.
- [27:45]
Allison Gill
Hey, everybody. Welcome back. All right, you'll recall last March, Judge Boasberg called an emergency hearing and he wore jeans and a T shirt because he didn't have his robes with him.
- [27:54]
Andy McCabe
Nice.
- [27:55]
Allison Gill
And in that hearing, he ordered planes carrying about 250 men on their way to El Salvador under the Alien Enemies act to turn around. Now, Emil Bovey apparently told the Department of Justice and the lawyers in the Department of Justice to be prepared to tell the court to fuck off. According to a whistleblower complaint backed up by emails and text messages. That was Arez Raveni, who has since been fired from the DOJ. And the planes were not returned to the U.S. all those people went on to El Salvador. They were imprisoned at Seacote. Right. Since then, they'd been traded to Venezuela for 10 prisoners, one of whom is that triple murderer we talked about. But Judge Boasberg issued an opinion that the government could be on the hook for criminal contempt for failing to follow his orders. The government appealed that to the D.C. circuit Court of Appeals, and a three judge panel there stayed his contempt opinion. I think it was last April, and there it has sat. But this week, the ACLU has filed an appeal to the en banc panel of the D.C. circuit Court of Appeals. So that basically when you get a decision from an appeals court, an appellate court, from a three judge panel, if you don't like that decision, you can go to the Supreme Court or you can ask all the judges on that circuit court to rehear your case.
- [29:09]
Andy McCabe
That's right. This reporting comes from Adam Clausfeld at All Rise News. The Trump administration may not be in the clear yet for ignoring Chief District judge James Boasberg's March 15 order to turn flights around carrying more than 200 men to El Salvador. Late on Thursday evening, the ACLU filed an en banc appeal asking the D.C. circuit's full bench to reconsider a ruling that overturned Judge Boasberg's finding of probable cause for criminal contempt. In an exclusive interview with all rise news, the ACLU's attorney, Lee Gellert, laid out the stakes of the pending appeal. Whether the government feels empowered to violate court orders. If that happens and the judiciary doesn't put its foot down, I think it changes the dynamic between the branches of government and really puts us on dangerous ground. Gellert warned.
- [30:05]
Allison Gill
Yep. And in April, as I said, Boasberg found probable cause. The Trump officials willfully violated his order to return flights carrying hundreds of men to El Salvador. You'll even remember, like the, the argument that Trump and Emil Bovey were putting forward was that, well, you're you, you said that, but you didn't write it in your order. And so oral declarations from the bench don't count. And since then, multiple judges have had to say to the doj, is me telling you this, okay, or do you need me to put it in writing for you?
- [30:36]
Andy McCabe
Yeah.
- [30:37]
Allison Gill
And I'm particularly thinking of just the other. I think this past weekend when they tried to disappear a bunch of unaccompanied children to Venezuela in the middle of the night, Labor Day weekend, Judge Sparkle Sukhnanan was like, I'm telling you to turn the planes around and deplane these kids, return them to the Office of Refugee Resettlement. Do you need me to write that down for you? And then DOJ Drew Ensign was like, no, we got it. So anyway, that's been happening. Stopping short of a formal finding of contempt, Boasberg initiated a fact finding process to determine what officials flouted his order, which ones, and which could lead to criminal referrals to the Department of Justice. Four months would pass before the D.C. circuit adjudicated the government's appeal of that order. And during that period, former Justice Department lawyer Arez Raveni filed his whistleblower complaint providing evidence of willful disobedience to Judge Boasberg's order. In a memorable passage, Rouveni said that then senior Justice Department official Emil Bovey instructed prosecutors in a private meeting to be willing to tell the courts, fuck you.
- [31:42]
Andy McCabe
Senate Republicans refused to act on Raveni's complaint before confirming Bovey for a lifetime appointment as a federal appellate court judge. And the D.C. circuit's slow walking of the appeal prevented a judicial reckoning until that time, quote, I think we're in a very dangerous territory because ultimately the system depends on both branches complying with court orders, Gellert said. On August 8, two Trump appointed judges on the D.C. circuit's three judge panel relieve the government of any consequences for ignoring Boasberg's order. Those judges, Gregory Katsas and Naomi Rao, vacated the probable cause order for different reasons. Dissenting Judge Cornelia Pillard, an Obama appointee, said that her colleagues did Boasberg a grave disservice. The ACLU's petition asks the D.C. circuit to rehear the case in front of all the court's 11 active judges.
- [32:37]
Allison Gill
Yeah, and here's a quote from the filing that the ACLU made to get an en banc hearing. It says, quote, it's hard to imagine a more direct blow to the authority of the federal courts than undermining their ability to enforce their orders here. The panel's ruling is even more dangerous because it undermines the district court's authority even to inquire into possible willful disobedience of its order, a step well short of pursuing any particular remedy, much less a criminal referral. A judge's findings of probable cause for criminal contempt are not usually appealable. But Katzas and Rao accepted the Trump administration's argument for emergency intervention through a writ of mandamus, which has a heightened standard for redressing a clear and indisputable error. And Andy, I got to tell you, it was really improperly used here. The Writ of mandamus. The ACLU's petition says that the limited nature of Boasberg's order makes Katz and Rao's decision more unsupportable. Quote. Although Judge Katz and Rao, Judges Katz and Rao, had distinct reasons for believing the district court erred, both opinions had the same through line that the district court should not even inquire into the facts as to criminal contempt, Galler wrote, quote, if accepted, that view would have dire consequences for the judiciary's ability to enforce its orders.
- [34:00]
Andy McCabe
Trump and his Justice Department have sought to discredit Boasberg both in and outside of court, filing a misconduct complaint against the judge and attacking him in public statements. I've been practicing doing this civil rights work for more than three decades now, Gellert said. I don't think I've ever seen anything like what's going on on this case with Chief Judge Boasberg. I think in court and in their filings. Sort of real disrespect for him and the judiciary like nothing I've ever seen before.
- [34:32]
Allison Gill
Yeah, that's interesting. Like, maybe you could overturn a finding of contempt, but to not even let me open up some discovery to see if there was contempt is pretty unheard of.
- [34:45]
Andy McCabe
Yeah, yeah. And it puts a little more perspective on something we talked about a little earlier in the show in the context of the DC grand juries refusing to return indictments or true bills on these subjects and the suggestion that. That the grand jury has lost, that the government has lost the faith and trust of the grand jury. Well, here we're seeing maybe one of the reasons why the government has also lost the faith and trust of the bench.
- [35:18]
Allison Gill
Yeah, right.
- [35:19]
Andy McCabe
You're seeing all these hostile encounters where judges are catching Justice Department lawyers at being less than completely candid or truthful or basically shoddy practice, not having answers to questions when you don't get a grand jury indictment. And the judge says to you, what. What's your plan from here? What are you going to do next? And the judge is like, well, I don't really know government lawyers. I'm not sure. I'll tell you in a few days. I mean, that's just. It all starts to fit. It's not just grand jurors in D.C. losing faith in what the government says. It's actually lawyers and it's actually across the country. So it's.
- [36:00]
Allison Gill
And U.S. attorneys and Department of justice attorneys and. Yeah, yeah. The presumption of regularity. Right. I had a whole discussion with Joyce Vance about that. And the judges are also Mad at the Supreme Court for their use of the emergency docket. You know, when they, when they just stay things or stay preliminary injunctions or temporary restraining orders, particularly in, in these immigration cases, there were like, a dozen judges that spoke to NBC News. Super rare for judges to speak to the press. And they're all saying, like, hey, when you do that, you know, like, let's say I do a, I have a hearing and I do a really thoughtfully researched preliminary injunction with all the laws and case citations and all that stuff. And then Stephen Miller comes out and says, these are woke Marxist judges and they're undermining, they're doing an insurrection. And they're, you know, they're undermining us. And, and, and then the Supreme Court puts an injunction against what I did without explaining why. Yeah, you're sort of validating what Stephen Miller, the Trump administration are saying about lower court judges. And so right now, I think on several fronts, lower court judges are sort of fighting for their inherent power.
- [37:16]
Andy McCabe
Yeah, I think so. And I think the Supreme Court is, by doing that stuff, they're also kind of like prejudging these cases without briefing, without arguments, without anything, because, of course, they base those decisions on, you know, expected an expectation to some degree that the, that the movement is going to win on the merits ultimately. So it's just a very, very concerning series of developments that are all pointing kind of in the same way, and that is undermining the public's faith and trust in the judiciary. And. Yeah, it's not good. Not good for the home team.
- [37:52]
Allison Gill
Yeah. And even in some cases, the Supreme Court is like, you'll probably win on the merits, but we're not going to let your temporary restraining order stand. So we're going to, here's an injunction, and we're not going to tell you why. Have a nice day. Right. Like, it's just, it's bizarre. So we're going to keep an eye on all of that for you. And we have one more quick story that we're going to go over before we get to listener questions, but we have to take a quick break, so everybody stick around. We'll be right back.
- [38:28]
Andy McCabe
Welcome back. Okay, we have one more story before we get to listener questions. This one comes from NBC Director of National Intelligence Tulsi Gabbard blindsided CIA leaders last week when she disclosed the name of an undercover CIA officer on a list of people she stripped of security clearances, multiple current and former intelligence sources said. The move alarmed the agency's workforce, the sources said, and is the latest example of simmering tensions cross and crossed signals between Gabbard and CIA Director John Ratcliffe. The two have clashed previously over her decisions, including earlier this month when Gabbard declassified a very lightly redacted document related to Russian election interference.
- [39:15]
Allison Gill
It's blowing my mind that John Ratcliffe is like, Tulsi, slow down.
- [39:22]
Andy McCabe
Like, yeah, John Ratcliffe. When he becomes like the, the, the clear eyed adult in the room, we are, we have a problem. We have a real problem. This is the guy that was hemorrhaging classified documents literally in the days before the 2020 election in an effort to help Trump. I mean, you know, like, he's not some sort of intelligence professional. Right. This is a guy who couldn't get point. He couldn't get approved as DNI initially because for, you know, several reasons, one of which was he was found to have grossly exaggerated his resume as a assistant U.S. attorney.
- [40:01]
Allison Gill
Yeah. So when he's telling you to chill on releasing classified information, you are way over your skis. Yeah, we're, we're DEFCON 1 now. The CIA officer whom Gabbard publicly identified and stripped of her security clearance was a veteran analyst. NBC News is not naming the employee for her protection. Days earlier, she had worked intensely to help prepare the White House team for the summit in Alaska between Trump and Russian President Vladimir Putin. Former intelligence agency colleagues said this to NBC. She was due to take up a new assignment for the CIA in Europe. But after the summit, and after the summit, the CIA informed the analyst that she'd lost her security clearance. And that effectively ends your career. Yes, if you're a CIA officer.
- [40:45]
Andy McCabe
Yeah.
- [40:46]
Allison Gill
Gabbard and her office failed to properly coordinate the move with the CIA before revoking the security clearances of the 37 current and former officials. That's according to a US official and a source with knowledge. It appeared that Gabbard and the Office of the Director of National Intelligence were unaware of the CIA employees covert mission. So you're going to revoke security clearances and put out a list of names and you're not going to check to make sure it's okay to put out that list of names? Didn't Scooter Libby get in trouble for this?
- [41:17]
Andy McCabe
Yeah, he got convictions in the way. I mean, of course he's been pardoned by Trump now, but just the fact that you have the Director of National Intelligence putting intelligence officers at risk, I mean, like, yes, it's totally foreseeable because Tulsi Gabbard is incompetent and should not be in that job should never have been given that job, shouldn't have been confirmed into that job.
- [41:44]
Allison Gill
So she's the opposite of competent. She's dangerous.
- [41:47]
Andy McCabe
Yeah, she's. She is. You know, her poor performance was totally predictable. But the bigger picture, like one of the dangers to our intelligence officers now is the kind of irresponsible decisions of the Director of National Intelligence. That's just incredible.
- [42:06]
Allison Gill
Yeah, yeah, for sure. All right, let's. Let's get to some listener questions. By the way, if you are a listener and you have a question, there will be a link in the show. Notes, notes that you can click on and that will take you to a form and you can use that form to submit your questions to us. So what do we have today for listener questions?
- [42:24]
Andy McCabe
Okay, this week, man, great questions again. There were a bunch of them and they were, you know, really thoughtful. Some of them very long and a little bit more than I could get into. But I picked a couple here. I'm going to start out with a really, really, really short one. And this one comes to us from Donna. Donna says, how big was the sammich?
- [42:49]
Allison Gill
The sammy was a salami. Foot long.
- [42:51]
Andy McCabe
Foot long, Donna, it was a foot long. There you go. That's one question answered. Bingo.
- [42:56]
Allison Gill
All right, cool. We're done. We can, we can pack it in.
- [42:59]
Andy McCabe
We could, but we won't because we always go the extra mile. All right, so the next one, I thought this was good, too. Really timely. This comes to us from bp and BP says, I'm a regular listener. I enjoy and feel informed by your show. You spent a fair amount of time in today's episode. Of course, he means last week, but it's also true for this episode on Washington DC's. He says Pettit juries. I would appreciate more background on the basic workings of Washington D.C. pettit juries for local crimes. I expect different states may have different rules, given WDC, Washington D.C. is under federal rule. How does the jury system work? So I think what he's really talking about are grand juries, because we haven't really been talking much about peditor. So pedit jury is just the jury that's brought together to decide one case that's going to trial. That's the petit jury.
- [43:55]
Allison Gill
Yeah. And most local crimes are taken care of. Well, well, all crimes are taken care of by the U.S. attorney's office. Right. And then some very limited local crimes are taken care of by the Attorney General of dc, who's an elected official and his name is Schwab.
- [44:10]
Andy McCabe
Yeah, and that's more like he can. He takes on cases mostly like file civil suits about things to protect DC policies and things like that. It's not so much like full on criminal prosecutions like you get from the Attorney General of the United States, but so basically lots of stuff goes in front of D.C. grand juries. And to give you the basics. So a grand jury has to be. Every grand jury is 23 citizens. Now, at least 16 of them must show up every time the grand jury is seated or hearing cases the citizens are pulled from, obviously the District of Columbia, it takes 12 grand jurors to vote for an indictment. So whether you have 23 or 22 or 21 or 16 or any number in between, you still have to get 12 votes for an indictment.
- [45:06]
Allison Gill
So you don't need a unanimous, you just need 12. Interesting.
- [45:11]
Andy McCabe
You just need 12. So the grand jury, okay, so citizens are drawn and impaneled for a grand jury. Each grand jury sits for 25 working days, but they don't sit seven days per week. Most grand juries meet only meet like twice a week.
- [45:28]
Allison Gill
Twice a week, right.
- [45:29]
Andy McCabe
So this 25 day requirement really stretches out over, you know, some period of time. Even after the 25 working days have been fulfilled, that grand jury can still be recalled, as they call it, after the, after the term has been satisfied if they need to be. If they need to like vote on a case that they'd already heard to kind of like clean things up a bit. The normal grand jury day starts at 9am and ends at 5pm they get one hour off for lunch. Grand jurors are selected from the same jury pool that's used to seat pettit juries. So just like in whatever state you're in or whatever city you're in, that jury pool is composed mostly by voter registration data. And so you could be called to sit for a grand jury anytime. Typically, you get the summons 30 to 45 days in advance, so you have a little bit of time to prepare and plan. If you feel like you can't do it, you can request a deferral, which would mean simply deferring your grand jury to one at a later date.
- [46:38]
Allison Gill
Or bone spurs.
- [46:39]
Andy McCabe
Yeah, exactly. Or you could request to be excused, but basically it's only for like medical infirmity or financial hardship. And then as you said, AG in D.C. they hear both local felonies, so that's like murder, assault, drugs, stuff like that. And they also hear federal cases. On the legal side, we all know the purpose of the grand jury is Simply to decide whether or not there's probable cause to believe a crime has been committed. The prosecutor appears before the grand jury. The prosecutor is allowed to put evidence in front of the grand jury. They can also subpoena witnesses to, or just request witnesses to come in and testify. Oftentimes, law enforcement officers have to testify, sometimes lay witnesses as well. If you are a subject or a witness and you are subpoenaed to testify, you are not allowed to bring an attorney with you. Your attorney has to sit outside in the hallway. Everything that happens in the grand jury is secret, so the government can't talk about it. But strangely enough, a witness can. So if you testify, you could walk out of the grand jury room and tell your lawyer or the media or anybody you want all the questions they asked you if you feel compelled to do so. And you know, probable cause is the lowest standard of proof. It simply means that there was some reasonable evidence to indicate that a crime was committed. The next level up of burden of proof is preponderance of the evidence. That's typically the standard at a civil trial. That's basically like 51%. And then, of course, at a real criminal trial, it's beyond a reasonable doubt. And that is a very high standard.
- [48:16]
Allison Gill
Yeah, and it's interesting too, because prosecutors, as we mentioned earlier in the show, and you and I have talked about this, talked about this with Joyce, is there's kind like you only have to have probable cause to get an indictment returned. But you, if as, as a prosecutor, you are supposed to only seek indictments for cases that you think you can obtain a conviction on.
- [48:37]
Andy McCabe
That's right.
- [48:37]
Allison Gill
Beyond a reasonable doubt. And not only that, but sustain it on appeal.
- [48:41]
Andy McCabe
Right.
- [48:42]
Allison Gill
So that's a. You have to apply the very high standard before you go in and get the very low standard, probable cause to get an indictment.
- [48:50]
Andy McCabe
So, yeah, no prosecutor that I ever worked with or came across in my 21 year career would ever present a case to a grand jury on the theory of, well, I think we can get, I think we can get an indictment and then we'll just wing it from there. No, does not happen that way. You do not go in front of a grand jury unless you're very confident that you have a solid case with good witnesses who will stand up under brutal cross examination and really strong evidence, documentary evidence, tapes, videos, whatever that might be.
- [49:25]
Allison Gill
Yeah, Andy, I asked Joyce how many times she failed to get a true bill, where she got a no bill, which means you failed to, to get an indictment. She said, I was a federal prosecutor, U.S. attorney's office. For eight years, I had 100% return rate on federal indictments, as most people do.
- [49:42]
Andy McCabe
Yeah, yeah, yeah, for sure. And, and then relative to what we were talking about earlier today, we had talked about a couple cases in which DOJ is dropping charges. Those are cases that were indicted and typically DOJ is loathe to ever dismiss a case that was indicted because it's like basically turning around and admitting that you shouldn't have gone that far to begin with. It's a really rare thing for DOJ to, to drop an indicted case. They're much more likely if they decide, oh, maybe there's a weakness in the case that they didn't know about, they'll plead it out for like a much lower.
- [50:24]
Allison Gill
Sure. You know, things that embarrass normal people are not embarrassing to Judge Jeanine Pirro.
- [50:31]
Andy McCabe
Yeah, for sure, for sure. So that's our grand jury case. Do we have time for one more? It's really kind of a blatant promotion, self pro, active self promotion by me. But here we go.
- [50:42]
Allison Gill
Well then, yes.
- [50:43]
Andy McCabe
All right then. This one comes from Steve. Steve says, coming to you from Ahuroa, Auckland, New Zealand, via Milwaukee. With everything going on right now, I know Andy will agree with me that slinging a guitar over your shoulder and letting it rip is as therapeutic as it gets. Steve, full on. You got me in the first sentence. My punk band Alternative Facts is a great outlet for me. And I have the advantage of getting to write ragers about both American and kiwi politics.
- [51:15]
Allison Gill
Ah.
- [51:16]
Andy McCabe
Alternativefactsband.com There you go.
- [51:19]
Allison Gill
You can check out Steve's band.
- [51:21]
Andy McCabe
Yes. Www.Alternativefactsband.com so he says. So, Andy, I know you mentioned on a past episode you were featured in a guitar documentary. I tried to find it, but I couldn't. Can you remind us where it is? So I wasn't like exactly, I think featured in the documentaries about a lot more than me, but I make a brief appearance and the documentary is called String Theory Guitar Obsessed and you can find it on Amazon Prime. It's on Prime Video now.
- [51:51]
Allison Gill
That's amazing. Have you been in a sneaker video? Because I know that you are into sneakers.
- [51:57]
Andy McCabe
I have not, but I'm available. So if there's.
- [52:00]
Allison Gill
Or documentarian.
- [52:01]
Andy McCabe
Yeah, sneaker documentarians out there. I'm happy to share my philosophy on Fresh Kicks with anybody who's interested.
- [52:12]
Allison Gill
Former FBI Director Ponders Fresh Kicks.
- [52:14]
Andy McCabe
There you go. Why not? Why not? Why not me?
- [52:18]
Allison Gill
Oh, that's great. That's great. I Had a punk band in high school, Andy.
- [52:22]
Andy McCabe
And what was the punk band's name.
- [52:24]
Allison Gill
That was called Edith Keeler Must Die.
- [52:27]
Andy McCabe
Wow.
- [52:27]
Allison Gill
It was based on.
- [52:29]
Andy McCabe
Very aggressive.
- [52:30]
Allison Gill
It was based on. Of my favorite Star Trek episode, the original series called the City on the Edge of Forever. Remember when they go back in time and Joan Collins is there and she runs a soup kitchen and her name is Edith Keeler and something happens where I guess. I guess Kirk saves her life from a car accident and she goes on to keep the United States from entering NATO peace talks and the whole world gets destroyed.
- [52:54]
Andy McCabe
Oh, it's like one of those time travel things, right?
- [52:58]
Allison Gill
So Spock says, you know, Spock says Edith Keeler Must Die. And I'm like, yeah, that's a punk band.
- [53:03]
Andy McCabe
And so does she also make out with what's his name, the Captain?
- [53:11]
Allison Gill
Oh, yes. Kirk fell in love with her.
- [53:13]
Andy McCabe
Yeah. That was a standard part of most of those shows, if I remember correctly.
- [53:18]
Allison Gill
My bow is taking me to the latest Clark Gable film. Yeah, yeah.
- [53:25]
Andy McCabe
Oh, my God.
- [53:26]
Allison Gill
It's a good one.
- [53:27]
Andy McCabe
Good one, Good one. I like it.
- [53:29]
Allison Gill
It's my favorite.
- [53:29]
Andy McCabe
And how did your band do? Did you survive the. The high school years? It was a high school band.
- [53:36]
Allison Gill
Oh, yeah. Then we all went to college and there was no more band.
- [53:40]
Andy McCabe
Yeah, that happens. It happens.
- [53:42]
Allison Gill
I always had a dream of starting another punk band called Idiot Box where we do punk rock covers of TV theme songs from the 80s, the 70s. Yeah.
- [53:53]
Andy McCabe
Nice.
- [53:53]
Allison Gill
Yeah. All right. I think me first in the Gimme gimmes has probably got a cool corner on that market, though.
- [54:00]
Andy McCabe
Anyway, I like it.
- [54:02]
Allison Gill
Thank you all so much for your questions. If you have any questions or just interesting information you want to share with us wrapped in a question or vice versa, you can send it to us by clicking on the link in the show notes. And we love reading your questions. Thank you so very much and thanks for listening. Thanks for listening to the show. We really appreciate you being here and listening to Unjustified. So we're going to have another week of how many? Okay. Should we start placing bets on how many no bills we get in the news this week?
- [54:32]
Andy McCabe
The over under on no bills. I'm going to put it at. I'm going to put it at like three and you get to pick the over or under?
- [54:40]
Allison Gill
Under. I think we'll get two more this week.
- [54:41]
Andy McCabe
All right, There you go. I'll take the over just to make it interesting.
- [54:45]
Allison Gill
All right.
- [54:45]
Andy McCabe
Four or more. We'll see what happens.
- [54:47]
Allison Gill
Very cool. And if you have any, you know, if you want to give us your thoughts on your over under for no bills this week again?
- [54:54]
Andy McCabe
Yeah, send it in there. And then really, if you, if you learn of no Bills that we haven't heard that that's good information too, send it on.
- [55:02]
Allison Gill
Andy. It's the opposite of the fantasy indictment league that I ran forever on the motion unindictment league. It's the fantasy no bill league.
- [55:11]
Andy McCabe
The fantasy no indictment league.
- [55:13]
Allison Gill
How depressing. All right.
- [55:16]
Andy McCabe
How things have shifted. Okay.
- [55:18]
Allison Gill
They sure have. I missed my old account called Indictments Only over on Twitter because, you know, I would post all my stuff on Twitter and people would inevitably say, wake.
- [55:27]
Andy McCabe
Me up when he's indicted.
- [55:28]
Allison Gill
So I created a whole account called Indictments Only, and I would announce every single indictment in the Trump investigations and his allies investigations and put a picture of Alice from the Brady Bunch, a different picture of Alice from the Brady Bunch in each post. That was a fun. Those were fun times.
- [55:43]
Andy McCabe
All right, no bills only. Somebody's got to take that account. Start lighting it up.
- [55:50]
Allison Gill
All right, everybody, thank you again so much for listening. We'll see you next week. I'm Allison Gill.
- [55:54]
Andy McCabe
And I'm Andy McCabe.
- [55:56]
Allison Gill
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 msw media.com.