UnJustified – Episode 58: "Best Work Day Ever" (feat. Virginia Berger)

Podcast: UnJustified
Host: Andy McCabe (solo episode, Allison Gill on vacation)
Date: March 1, 2026
Guest: Virginia Berger, Senior Defense Policy Analyst at the Project on Government Oversight

Episode Overview

This episode, presented as a “pirate radio” edition due to Allison Gill’s vacation absence, tackles a turbulent week in the erosion of civil liberties and rule of law under the Trump DOJ. Andy McCabe covers several pressing stories: the government’s retaliation against Senator Mark Kelly and other former military members of Congress for urging service members not to follow unlawful orders, Judge Aileen Cannon’s efforts to suppress Jack Smith’s Mar-a-Lago report, the Department of Justice’s cascade of failures in court, and a look into FBI Director Kash Patel’s questionable use of government jets—coining it his “Best Work Day Ever.” Special guest Virginia Berger joins to clarify military justice issues surrounding the Kelly case.

Section 1: The Mark Kelly Retaliation Saga

Timestamps:
[00:50] – [23:04] Main discussion with Virginia Berger

Background and Timeline

Sen. Mark Kelly & Five Others: Recorded a public video urging military members to refuse unlawful orders—a direct rebuke to then-President Trump’s rhetoric and policies.
DOJ Investigation: All six, including four House members and two Senators—former military or intelligence officers—became targets of a DOJ criminal investigation.
Defense Department Action: Secretary of Defense Pete Hegseth censured Kelly, opening a process that could demote his retired rank, reducing retirement pay.
Legal Counterpunch: Kelly sued Hegseth to block this, leading to a landmark preliminary injunction by Judge Richard J. Leon, freezing disciplinary action against him.

Key Discussion Points

Military Oaths & Lawful Orders:
Virginia Berger explains the moral and legal obligations placed on military personnel to refuse unlawful orders under the Uniform Code of Military Justice (UCMJ).

“If an order is unlawful and you receive [it], it is then also your obligation to not follow that unlawful order.” – Virginia Berger [05:49]
Why DOJ, Not UCMJ:
Only retirees (like Kelly) can potentially remain under military justice jurisdiction; the other five, being non-retired veterans, escaped UCMJ reach, so Trump’s DOJ tried pursuing federal criminal charges instead.

“There’s this gray area where retirees may still be beholden to the UCMJ. And that’s why Hegseth is able to at least attempt to kind of mess with Kelly in that way.” – Virginia Berger [10:19]
Collapse of the Criminal Case:
The case went to a grand jury, but was summarily rejected.

“They brought in normal people, right? Like, the grand jury is normal people... They were probably dumb [charges], for lack of a better term.” – Virginia Berger [11:35]
“How is it that you charge people and potentially convict people of a crime for simply telling others they should obey the law? I mean, it’s preposterous on its face.” – Andy McCabe [13:02]
Civil Suit & Hegseth’s Workaround:
With court-martialing Kelly a legal maze, Hegseth tried using a “Retired Rank Determination Board” to retroactively demote Kelly for post-retirement speech—a use of Title 10, Section 1370 that Berger calls “out of order.”

“If they had gone and dug up something from his past... okay, maybe. But they didn’t. They’re trying to convene this board based on actions from last November.” – Virginia Berger [20:13]
Judge Leon’s Ruling:
Judge Richard J. Leon delivered a scathing, even quote-filled opinion, blocking punitive action:

“No one has ever used the UCMJ to curtail the First Amendment rights of a retired service member. And... this court will not be the first to do so." – Berger paraphrasing Judge Leon [22:01] “He just slams the book shut and says, nope, we’re not doing this.” – Virginia Berger [22:25]
Latest: DOJ will appeal, and the saga continues.

Section 2: Judge Aileen Cannon and the Jack Smith Report

Timestamps:
[26:10] – [36:26]

Key Developments

Cannon’s Pattern: Judge Aileen Cannon permanently barred public release of Jack Smith’s Mar-a-Lago report, ruling it would be damaging and unjust, even after all co-defendant cases were dropped.
Questionable Legal Justification: Cannon claims she “strains to find a situation in which a former special counsel has released a report after initiating charges that did not result in a finding of guilt.”
Andy McCabe refutes this by referencing how John Durham’s report was released even after the acquittal of Michael Sussman—contradicting Cannon’s argument.

“You just have to do a little bit of research... back to ye olden days of 2023. That’s when John Durham released his report that contained 311 mentions of Michael Sussman…” – Andy McCabe [32:00]
Civil Liberties Groups Respond:
American Oversight and the Knight First Amendment Institute condemn the secrecy, framing it as an affront to transparency and the First Amendment.

“Judge Cannon’s ruling continues a troubling pattern of decisions that shield the president from public scrutiny and place secrecy above the public's right to know.” – Chioma Chukwu, American Oversight [quoted at 34:45]
Next Steps: The fight to appeal Cannon’s order moves onward, with hopes resting on the 11th Circuit.

Section 3: DOJ Failures – “The End of Presumption of Regularity”

Timestamps:
[37:07] – [60:00]

Notable Courtroom Failures

Immigration Judicial Chaos:
DOJ and ICE are repeatedly found in contempt or violating court orders—judges across the country (Minnesota, California, Florida, New York, and more) are exasperated by government attorneys’ disregard for due process.
- Judges’ language is unusually caustic:
  
  “Antiseptic. Judicial rhetoric cannot do justice to what is happening.” – Judge Joseph R. Goodwin, WV [40:50]
  “An assault on the constitutional order.” – Judge Joseph R. Goodwin, WV [40:55] “An administrative judicial emergency.” – Judge Clay D. Land, GA [46:30]
Staffing Crisis:
DOJ is overpowered by the volume of detainee challenges, leading to mass departures, vacant prosecutor positions, and crucial criminal prosecutions (violent crimes, narcotics) being sidelined.
Operational Failures:
Example: DOJ lawyers routinely file misleading statements about detainees’ whereabouts; judges respond with orders and, rarely seen, real penalties.

Section 4: Kash Patel, FBI Director – "Best Work Day Ever"

Timestamps:
[60:00] – [67:55]

Major Events & Insights

Jet-Setting Scandal:
Director Kash Patel used the FBI’s Gulfstream jets for “official” trips that mix business with pleasure—including a widely publicized “work trip” to the Olympics, mingling in locker rooms, and celebrating with the team.

“He chugged a few beers, he got to wear a gold medal, he slammed the furniture, he made lots of very manly noises, and of course... called the President of the United States on your speakerphone. All of which was recorded for all the world to hear.” – Andy McCabe [65:00]
Operational Consequences:
One such “work trip” allegedly directly delayed FBI Evidence Response Teams reaching the site of a mass shooting because Patel had both jets tied up for personal and unexplained “reserve” purposes.
- Whistleblower reports to Congress have triggered investigations by the GAO and DOJ OIG.
Retaliatory Firings:
In the same week, Patel summarily fired half a dozen FBI agents whose only “offense” was having worked on the Jack Smith 2020 election investigation.

Section 5: Listener Q&A

Timestamps:
[67:55] – [70:36]

Question: Can Maureen Comey, now out of DOJ, speak publicly about the Epstein files or represent victims?

Short Answer: Not freely.
- She is limited by government NDAs and ethics rules prohibiting adverse-party representation in closely related cases.
- Exception: If subpoenaed by Congress, she could testify, subject to DOJ guidance.
“She can’t really speak out... You have to sign all kinds of non-disclosure agreements... She wouldn’t be able to represent a victim who would be basically, you know, going against the Department of Justice, having previously represented [it] on that same matter.” – Andy McCabe [69:00]
Larger Point: Public accountability on the Epstein case will require congressional investigation with testimony from involved prosecutors.

Notable Quotes & Moments

On Grand Juries and DOJ Overreach:

“Anyone... would sit there and be like, this is mutiny. This is sedition.” – Virginia Berger [12:17]
“Thank God we still have that kind of pressure release valve.” – Andy McCabe [13:02]
On Judge Leon’s Injunction Opinion:

“There’s a lot of exclamation points and a Bob Dylan quote. So, like, it’s a lot of fun to read.” – Virginia Berger [21:09]
On Judge Cannon’s Reasoning:

"You don’t have to strain to find this. You just have to do a little bit of research… back to ye olden days of 2023." – Andy McCabe [32:40]
On DOJ’s Immigration Caseload:

“Don’t hide the ball.” – Judge Roy Dalton Jr., FL [41:30]
“Antiseptic judicial rhetoric cannot do justice to what is happening.” – Judge Joseph R. Goodwin, WV [40:50]
On Kash Patel’s Olympic Visit:

“It looks like a great time was had by all, or at least by Kash in his most amazing work trip to the Olympics.” – Andy McCabe [65:00]

Memorable Moments

Pirate Radio Solo: Andy McCabe humorously brands the episode “pirate radio edition” [00:50].
Call for Segment Names: Asks listeners to suggest names for the “automatic DOJ failures” segment [37:07].
Listener Engagement: Throughout, McCabe invites questions, comments, and engagement.

Closing

Andy McCabe promises a return to normalcy with Allison Gill back next week and encourages continuing vigilance and questions regarding America’s legal institutions.

Credits:
Written & Executive Produced by Allison Gill
Additional Research & Analysis: Andrew McCabe
Sound: Molly Hockey
Art & Web: Joelle Reader
Theme Music: Ben Folds
Network: MSW Media

UnJustified – Episode 58: "Best Work Day Ever" (feat. Virginia Berger)

Episode Overview

Section 1: The Mark Kelly Retaliation Saga

Timestamps:
[00:50] – [23:04] Main discussion with Virginia Berger

Background and Timeline

Sen. Mark Kelly & Five Others: Recorded a public video urging military members to refuse unlawful orders—a direct rebuke to then-President Trump’s rhetoric and policies.
DOJ Investigation: All six, including four House members and two Senators—former military or intelligence officers—became targets of a DOJ criminal investigation.
Defense Department Action: Secretary of Defense Pete Hegseth censured Kelly, opening a process that could demote his retired rank, reducing retirement pay.
Legal Counterpunch: Kelly sued Hegseth to block this, leading to a landmark preliminary injunction by Judge Richard J. Leon, freezing disciplinary action against him.

Key Discussion Points

Military Oaths & Lawful Orders:
Virginia Berger explains the moral and legal obligations placed on military personnel to refuse unlawful orders under the Uniform Code of Military Justice (UCMJ).

“If an order is unlawful and you receive [it], it is then also your obligation to not follow that unlawful order.” – Virginia Berger [05:49]
Why DOJ, Not UCMJ:
Only retirees (like Kelly) can potentially remain under military justice jurisdiction; the other five, being non-retired veterans, escaped UCMJ reach, so Trump’s DOJ tried pursuing federal criminal charges instead.

“There’s this gray area where retirees may still be beholden to the UCMJ. And that’s why Hegseth is able to at least attempt to kind of mess with Kelly in that way.” – Virginia Berger [10:19]
Collapse of the Criminal Case:
The case went to a grand jury, but was summarily rejected.

“They brought in normal people, right? Like, the grand jury is normal people... They were probably dumb [charges], for lack of a better term.” – Virginia Berger [11:35]
“How is it that you charge people and potentially convict people of a crime for simply telling others they should obey the law? I mean, it’s preposterous on its face.” – Andy McCabe [13:02]
Civil Suit & Hegseth’s Workaround:
With court-martialing Kelly a legal maze, Hegseth tried using a “Retired Rank Determination Board” to retroactively demote Kelly for post-retirement speech—a use of Title 10, Section 1370 that Berger calls “out of order.”

“If they had gone and dug up something from his past... okay, maybe. But they didn’t. They’re trying to convene this board based on actions from last November.” – Virginia Berger [20:13]
Judge Leon’s Ruling:
Judge Richard J. Leon delivered a scathing, even quote-filled opinion, blocking punitive action:

“No one has ever used the UCMJ to curtail the First Amendment rights of a retired service member. And... this court will not be the first to do so." – Berger paraphrasing Judge Leon [22:01] “He just slams the book shut and says, nope, we’re not doing this.” – Virginia Berger [22:25]
Latest: DOJ will appeal, and the saga continues.

Section 2: Judge Aileen Cannon and the Jack Smith Report

Timestamps:
[26:10] – [36:26]

Key Developments

Cannon’s Pattern: Judge Aileen Cannon permanently barred public release of Jack Smith’s Mar-a-Lago report, ruling it would be damaging and unjust, even after all co-defendant cases were dropped.
Questionable Legal Justification: Cannon claims she “strains to find a situation in which a former special counsel has released a report after initiating charges that did not result in a finding of guilt.”
Andy McCabe refutes this by referencing how John Durham’s report was released even after the acquittal of Michael Sussman—contradicting Cannon’s argument.

“You just have to do a little bit of research... back to ye olden days of 2023. That’s when John Durham released his report that contained 311 mentions of Michael Sussman…” – Andy McCabe [32:00]
Civil Liberties Groups Respond:
American Oversight and the Knight First Amendment Institute condemn the secrecy, framing it as an affront to transparency and the First Amendment.

“Judge Cannon’s ruling continues a troubling pattern of decisions that shield the president from public scrutiny and place secrecy above the public's right to know.” – Chioma Chukwu, American Oversight [quoted at 34:45]
Next Steps: The fight to appeal Cannon’s order moves onward, with hopes resting on the 11th Circuit.

Section 3: DOJ Failures – “The End of Presumption of Regularity”

Timestamps:
[37:07] – [60:00]

Notable Courtroom Failures

Immigration Judicial Chaos:
DOJ and ICE are repeatedly found in contempt or violating court orders—judges across the country (Minnesota, California, Florida, New York, and more) are exasperated by government attorneys’ disregard for due process.
- Judges’ language is unusually caustic:
  
  “Antiseptic. Judicial rhetoric cannot do justice to what is happening.” – Judge Joseph R. Goodwin, WV [40:50]
  “An assault on the constitutional order.” – Judge Joseph R. Goodwin, WV [40:55] “An administrative judicial emergency.” – Judge Clay D. Land, GA [46:30]
Staffing Crisis:
DOJ is overpowered by the volume of detainee challenges, leading to mass departures, vacant prosecutor positions, and crucial criminal prosecutions (violent crimes, narcotics) being sidelined.
Operational Failures:
Example: DOJ lawyers routinely file misleading statements about detainees’ whereabouts; judges respond with orders and, rarely seen, real penalties.

Section 4: Kash Patel, FBI Director – "Best Work Day Ever"

Timestamps:
[60:00] – [67:55]

Major Events & Insights

Jet-Setting Scandal:
Director Kash Patel used the FBI’s Gulfstream jets for “official” trips that mix business with pleasure—including a widely publicized “work trip” to the Olympics, mingling in locker rooms, and celebrating with the team.

“He chugged a few beers, he got to wear a gold medal, he slammed the furniture, he made lots of very manly noises, and of course... called the President of the United States on your speakerphone. All of which was recorded for all the world to hear.” – Andy McCabe [65:00]
Operational Consequences:
One such “work trip” allegedly directly delayed FBI Evidence Response Teams reaching the site of a mass shooting because Patel had both jets tied up for personal and unexplained “reserve” purposes.
- Whistleblower reports to Congress have triggered investigations by the GAO and DOJ OIG.
Retaliatory Firings:
In the same week, Patel summarily fired half a dozen FBI agents whose only “offense” was having worked on the Jack Smith 2020 election investigation.

Section 5: Listener Q&A

Timestamps:
[67:55] – [70:36]

Question: Can Maureen Comey, now out of DOJ, speak publicly about the Epstein files or represent victims?

Short Answer: Not freely.
- She is limited by government NDAs and ethics rules prohibiting adverse-party representation in closely related cases.
- Exception: If subpoenaed by Congress, she could testify, subject to DOJ guidance.
“She can’t really speak out... You have to sign all kinds of non-disclosure agreements... She wouldn’t be able to represent a victim who would be basically, you know, going against the Department of Justice, having previously represented [it] on that same matter.” – Andy McCabe [69:00]
Larger Point: Public accountability on the Epstein case will require congressional investigation with testimony from involved prosecutors.

Notable Quotes & Moments

On Grand Juries and DOJ Overreach:

“Anyone... would sit there and be like, this is mutiny. This is sedition.” – Virginia Berger [12:17]
“Thank God we still have that kind of pressure release valve.” – Andy McCabe [13:02]
On Judge Leon’s Injunction Opinion:

“There’s a lot of exclamation points and a Bob Dylan quote. So, like, it’s a lot of fun to read.” – Virginia Berger [21:09]
On Judge Cannon’s Reasoning:

"You don’t have to strain to find this. You just have to do a little bit of research… back to ye olden days of 2023." – Andy McCabe [32:40]
On DOJ’s Immigration Caseload:

“Don’t hide the ball.” – Judge Roy Dalton Jr., FL [41:30]
“Antiseptic judicial rhetoric cannot do justice to what is happening.” – Judge Joseph R. Goodwin, WV [40:50]
On Kash Patel’s Olympic Visit:

“It looks like a great time was had by all, or at least by Kash in his most amazing work trip to the Olympics.” – Andy McCabe [65:00]

Memorable Moments

Pirate Radio Solo: Andy McCabe humorously brands the episode “pirate radio edition” [00:50].
Call for Segment Names: Asks listeners to suggest names for the “automatic DOJ failures” segment [37:07].
Listener Engagement: Throughout, McCabe invites questions, comments, and engagement.

Closing

Andy McCabe promises a return to normalcy with Allison Gill back next week and encourages continuing vigilance and questions regarding America’s legal institutions.

Credits:
Written & Executive Produced by Allison Gill
Additional Research & Analysis: Andrew McCabe
Sound: Molly Hockey
Art & Web: Joelle Reader
Theme Music: Ben Folds
Network: MSW Media

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Best Work Day Ever (feat. Virginia Burger)

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Summary

UnJustified – Episode 58: "Best Work Day Ever" (feat. Virginia Berger)

Episode Overview

Section 1: The Mark Kelly Retaliation Saga

Background and Timeline

Key Discussion Points

Section 2: Judge Aileen Cannon and the Jack Smith Report

Key Developments

Section 3: DOJ Failures – “The End of Presumption of Regularity”

Notable Courtroom Failures

Section 4: Kash Patel, FBI Director – "Best Work Day Ever"

Major Events & Insights

Section 5: Listener Q&A

Notable Quotes & Moments

Memorable Moments

Closing

Summary

UnJustified – Episode 58: "Best Work Day Ever" (feat. Virginia Berger)

Episode Overview

Section 1: The Mark Kelly Retaliation Saga

Background and Timeline

Key Discussion Points

Section 2: Judge Aileen Cannon and the Jack Smith Report

Key Developments

Section 3: DOJ Failures – “The End of Presumption of Regularity”

Notable Courtroom Failures

Section 4: Kash Patel, FBI Director – "Best Work Day Ever"

Major Events & Insights

Section 5: Listener Q&A

Notable Quotes & Moments

Memorable Moments

Closing