UnJustified Episode 38: “Bad Facts”

Podcast: Unjustified
Host(s): Allison Gill (MSW Media), Andrew McCabe
Date: October 12, 2025

Episode Overview

In this episode, Allison Gill and former FBI Deputy Director Andrew McCabe examine ongoing threats to civil liberties and the erosion of the rule of law stemming from Trump’s Department of Justice (DOJ). The focus centers on recent controversial indictments of high-profile political figures—including New York Attorney General Letitia James and former FBI Director James Comey—under the leadership of Trump-appointed U.S. Attorney Lindsey Halligan. The hosts break down the details of these prosecutions, highlight procedural abuses, and discuss broader implications for the justice system. Other topics include Republican backlash over Jack Smith’s investigations, failures of DOJ prosecutions, and listener questions about selective prosecution.

Key Discussion Points and Insights

1. Indictment of NYAG Letitia James

Main Points:

• Lindsey Halligan indicted Letitia James on two felony counts of fraud; she is the lone signatory, highlighting a lack of support even within DOJ ranks ([03:38]).
• Initial speculation was the indictment related to a mortgage for James’ niece, but charges involve a property James purchased as a “second home” in Virginia, which was allegedly used as a rental ([04:03], [04:40]).
• The government claims she misrepresented the property as a second home instead of an investment property, netting her a total estimated benefit of about $19,000 over the 30-year loan—$47 monthly ([05:49], [07:31]).

Critical Analysis:

• Gill points out that, per Fannie Mae’s actual rules, the definition of “second home” is not as strict as the indictment alleges; no tax fraud is charged, and intent is hard to prove without damning communications ([05:58], [09:09]).
• McCabe questions how intent could be established with such a small savings, especially absent conspiratorial communication ([09:33]).

Notable Quote:

“You have to show that she intended to commit fraud, that she knew what she was doing was wrong and was willfully [doing] it anyway.”
— Andrew McCabe ([09:09])

2. Weaknesses and Irregularities in High-Profile DOJ Prosecutions

Main Points:

• Indictments against both Tish James and Jim Comey brought only by political appointees, with no career prosecutors willing to participate ([03:38], [14:05]).
• Comey arraigned in EDVA (“rocket docket”) before a Biden appointee judge; defense plans multiple motions to dismiss, particularly concerning Halligan’s authority as an appointee ([14:20], [18:05]).
• At Comey’s arraignment, only North Carolina assistant U.S. attorneys—unfamiliar with the case—were present for prosecution ([19:23]), in contrast to celebrated defense counsel Pat Fitzgerald’s pride.

Notable Quotes:

“Not one [lawyer]. The acting U.S. attorney, of course, had been fired because he wouldn't bring the case. … Not one career official. … On the other side, ... ‘it’s an honor of my life to represent Mr. Comey in this matter.’”
— Benjamin Wittes, as relayed by Alison Gill ([19:23])

“I’m not sure I’ve ever seen a case in which the prosecution was so evidently ashamed … and the defense so visibly proud…”
— Benjamin Wittes ([20:20])

Procedural Incompetence:

• Prosecutors arrived at Comey’s arraignment completely unprepared, lacking discovery organization and knowledge of the case ([20:57]).
• Both hosts equate this to “indict now, investigate later.”
• Defense is equally in the dark regarding basic elements of the charges ([24:50]).

Judge’s Response:

• Judge emphasizes speed and efficiency: “This will then be the fastest SIPA you’ve ever seen in your life.” ([28:20])

3. Weaponization of DOJ and Grand Jury Breakdown

Trend:

• The Trump DOJ is bending longstanding DOJ norms, weaponizing prosecutions against political adversaries ([35:03]).

Broader Implications:

“It is the obvious marshaling and manipulation of the government’s power to affect political revenge on perceived enemies … 100 steps beyond that [previous criticisms].”
— Andrew McCabe ([35:25])

4. Jack Smith Subpoenas and GOP Backlash

Summary:

• Jack Smith subpoenaed phone records of Republican lawmakers related to January 6. GOP senators allege “spying”; hosts clarify it is routine toll record collection, not wiretapping, and justified by the January 6 riot ([36:43], [37:31], [38:57]).
• Senators including Lindsey Graham and Josh Hawley protest, claiming overreach, while documentation shows legal coordination and process ([40:07], [41:10], [41:50]).
• The hosts debunk the “wiretapping” narrative and explain DOJ’s enhanced procedures for sensitive records ([42:28], [43:58]).

5. Purging of the FBI Public Corruption Unit (CR15)

Main Points:

• Several agents involved in January 6/Trump investigations fired; CR15 disbanded ([51:35]).
• McCabe expresses alarm at this loss of institutional expertise in prosecuting federal corruption ([52:41], [54:44]).

Notable Quote:

“The idea that you would come in and just destroy that unit … and it's bad for the country because we no longer have these experts making sure our government is run in a fair and lawful way…”
— Andrew McCabe ([54:44])

6. Continued DOJ Failures—Grand Jury and Prosecutorial Incompetence

Main Points:

• DOJ’s pattern of failing to secure grand jury indictments for protester prosecutions, leading to dismissals or workaround attempts ([56:44]).
• Statistical anomaly: D.C. saw only 20 motions to dismiss in 4,000 cases over a decade, but 20 in eight weeks recently ([59:30]).
• DOJ attempts unprecedented workarounds, e.g., moving from federal to D.C. Superior Court grand juries ([59:30]).
• Disclosure of destroyed exculpatory evidence in a misdemeanor case, possibly breaching Brady obligations ([60:34]).

Notable Quote:

“You have to be right. You have to be accurate. You have to be truthful all the time. Because as soon as you stop … the whole thing starts to fall apart.”
— Andrew McCabe ([61:57])

7. Listener Questions: Venue and Selective Prosecution Recourse

Comey Case Venue:

• Tried in EDVA because Comey's testimony was given from his Virginia residence via Zoom during pandemic-related restrictions ([62:37]).

Recourse for Vindicated Defendants:

• Nearly impossible for defendants to recover costs or seek damages unless they can prove specific, intentional deprivation of rights ([65:48]).
• Civil immunity shields most federal employees; real-world example in the Ras Baraka case, where circumstances may differ ([66:10]).

Notable Moments and Quotes

• Andy Mocking Indictments: “Nobody in the Eastern District of Virginia would touch it. So she’s the lone signatory …” ([03:38])
• Indictment Scope: “The total ill-gotten gains … is about $19 grand over the life of the loan … $47 a month.” — Allison Gill ([07:31])
• On Pat Fitzgerald’s Defense: “[He said] ‘it’s an honor of my life to represent Mr. Comey’—a bit of an inversion … the prosecution was so evidently ashamed …” (Wittes/[19:23])
• Procedural Embarrassment: “You don’t show up in a criminal courtroom in the Eastern District of Virginia and say … give us a few more weeks. That is exactly what the rocket docket was created to eliminate.” — McCabe ([24:19])
• Grand Jury Dysfunction: “Of over 4,000 cases … less than 20 [were dismissed]; in the last eight weeks, the government has charged 95 cases and … dismissed 20.” ([59:30])
• DOJ Disarray: “It is embarrassing. You cannot do these things. You have to be right. … Because as soon as you stop being that … the whole thing starts to fall apart.” — McCabe ([61:57])

Important Timestamps

| Timestamp | Segment | |-----------|--------------------------------------------------| | 00:07 | News updates: James and Comey indictments | | 03:38 | Tish James indictment details | | 07:31 | Analysis of James’s alleged misconduct | | 14:20 | Comey arraignment and motions to dismiss | | 18:05 | Rocket docket discussion | | 19:23 | Ben Wittes’ analysis of prosecution’s shame | | 24:19 | Prosecution and defense both unprepared | | 28:20 | Judge demands “fastest SIPA you’ve ever seen” | | 35:03 | Broader implications: weaponization of DOJ | | 36:43 | Jack Smith subpoenas on GOP lawmakers | | 41:10 | Senators’ phone records protest | | 51:35 | CR15 FBI public corruption unit dismantled | | 54:44 | McCabe on harm of losing expert corruption squad | | 56:44 | Dismissals & grand jury dysfunction | | 59:30 | Unprecedented no-bill and dismissal statistics | | 62:37 | Listener questions: Comey venue and recourse | | 65:48 | Immunity & selective prosecution |

Takeaways

• Indictments against James and Comey are seen as political retribution, marked by reluctance from career DOJ officials to participate.
• Legal footing for the charges appears weak and difficult to prove, particularly regarding intent and prosecutorial process.
• The breakdown in grand jury indictments and the firing of FBI anti-corruption agents suggest a larger effort to undermine checks on political power.
• Jack Smith’s investigative steps, though controversial among Republicans, remain standard prosecutorial practice.
• Listener questions reveal the gravity and complexity of selective/vindictive prosecution, alongside the legal difficulties vindicated defendants face in seeking restitution.

This summary captures the essence and content of the episode while staying true to the hosts’ tone and direct quotes. Non-content sections and advertisements have been omitted for clarity.