UnJustified – Bonus Q&A Episode 50

Podcast: UnJustified (MSW Media)
Date: January 2, 2026
Hosts: Allison Gill & Andrew McCabe

Overview

For their 50th episode and the first of 2026, hosts Allison Gill and Andrew McCabe dedicate the entire show to an extended listener Q&A session. Eschewing headlines for in-depth answers, they tackle questions about presidential pardon powers, the resilience of checks and balances, the power of the Supreme Court, grand jury and bar discipline reform, conspiracy theories, and structural reforms to American democracy. Throughout, the hosts blend legal expertise, institutional memory, and a sardonic optimism—emphasizing the fragility, resilience, and ongoing need for vigilance around the rule of law.

Key Discussion Points and Insights

1. Presidential Pardon Power

(Starts ~01:27)

• Origin of Presidential Pardons

  • McCabe traces the pardon power to English tradition where the monarch had authority to show mercy, especially after uprisings, and US founders chose to retain this in the Constitution ([01:27]–[03:53]).
  • “It’s one of the very few things that the founders of our country looked back at the English tradition and said, ‘Hey, we want to keep this piece.’” – Andy McCabe [02:30]

• Checks and Balances & Limits

  • Gill explains that while the judiciary can check the executive, the pardon power is the executive's check on excessive judicial force ([03:56]–[04:52]).
  • Exception: The president cannot pardon cases of impeachment, preserving the legislative check ([05:54]–[07:13]).
  • “You can’t pardon the person before they’re impeached, during the process of impeachment or after… The impeachment process is distinctively political.” – Andy McCabe [06:30]

• Pardoning State Crimes

  • The president’s power is strictly limited to federal crimes; attempts (like Trump’s public “pardoning” of Tina Peters for a state crime) are legally meaningless but serve political theatrics and test the court’s boundaries ([08:14]–[11:14]).
  • “He’s testing the law. He’s testing his unitary executive with the Supreme Court… And if he loses, he can have another grievance.” – Allison Gill [10:02]

• Controlling or Reforming the Pardon Power

  • Reform would require a constitutional amendment, which is virtually impossible given state-level Republican control; both parties want the broad pardon as an option for their presidents ([13:19]–[14:43]).
  • Attempts to challenge “corrupt” pardons or prosecute for sale of pardons are unlikely to succeed—current Supreme Court decisions have gutted bribery laws ([14:04]–[14:43]).
  • Gill: “I wish I could say that the Supreme Court will definitively say that Donald Trump can’t pardon Tina Peters, but I don’t put anything past the Supreme Court at this particular juncture.” ([15:02])

2. Birthright Citizenship and Supreme Court Overreach

(15:49–20:49)

• Executive Orders and Supreme Court Precedent

  • Listener asks if a Democratic president could rescind a Trump executive order on birthright citizenship ([15:49]).
  • McCabe says yes—unless the SCOTUS rules to fundamentally alter the constitutional understanding ([17:33]).
  • “If the Supreme Court… eliminates the legality of birthright citizenship… that would stand beyond the presidential order.” – Andy McCabe [17:14]

• Supreme Court Skepticism

  • Gill recounts a recent surprising SCOTUS decision limiting Trump’s authority to deploy the National Guard, expressing rare optimism but deep caution ([18:40]–[20:25]).
  • “I am a lot less certain than I have been in years past with what the Supreme Court will do. Because you think the law is the law. It's pretty black and white.” – Allison Gill [19:53]

• Loss of Legal Predictability

  • “Burn me once, shame on you. Burn me twice, shame on me. We all got burned with the immunity order in a way that none of us will ever forget…” – Andy McCabe [20:25]

3. Legal Accountability & Bar Discipline

(21:20–28:49)

• Can Lawyers Like Lindsey Halligan be Disbarred?
  • McCabe: Ignorance is no excuse; state bars (not bar associations) uphold attorney standards and can sanction misconduct ([21:49]–[24:04]).
  • Gill laments how complex and slow the process is, citing years-long delays for notorious figures (Giuliani, Eastman, Powell) and calls for state bar reform for real accountability ([24:04]–[28:28]).
  • “If you’re in that field, it might be a good opportunity to start really focusing on… bar disciplinary rules that have teeth.”—Allison Gill [26:18]

4. Conspiracy Theories vs. Facts (“False Flag” Claims)

(28:49–33:15)

• McCabe explains that conspiracy claims around recent violence (specifically, a National Guardsmen shooting) are baseless and misappropriate the term "false flag." He gives a technical definition and notes the complexity required for a real government false-flag ([28:49]-[32:59]):
  • “Anytime you start, like, seriously considering false flag operations, you’re drifting dangerously close to conspiracy world.” – Andy McCabe [29:04]
  • Gill and McCabe agree: no evidence supports the idea, and trauma/PSTD appears the likely root cause rather than a political plot.

5. Warrants, Grand Jury Procedure, and the “Plain Sight” Doctrine

(33:15–42:22)

• Plain Sight Doctrine Limits

  • Both hosts explain that plain sight applies only within the scope of a valid warrant; if evidence is found outside a warrant’s scope, it can’t be used ([34:03]-[35:51]).
    • “You can only deal with evidence in the way that you legally obtained it.” – Andy McCabe [39:03]
  • Gill gives examples of proper DOJ procedure, citing Lisa Monaco's pursuit of new warrants for new crimes, even with Rudy Giuliani’s already-seized materials ([38:02]-[39:14]).

• Grand Jury Snafus

  • Listener “Picky 19” describes improper grand jury process in the Comey investigation and the importance of precise, signed indictments. Both hosts concur, emphasizing the grand jury's significance in upholding legal standards ([40:52]-[45:21]).

6. Power of the Jury in the Justice System

(45:21–49:24)

• Both hosts salute the unexpected rise of grand and petit juries in blocking prosecutorial overreach, especially as the Trump DoJ sees an atypically high case dismissal rate ([43:33]-[46:25]).
  • “Whoever thought we would need the grand juries and the petit juries to be standing up and protecting us from authoritarianism in this day and age? But here we are.” – Andy McCabe [46:58]
• Gill whimsically suggests the House of Representatives should be filled by lottery, like jury duty, for truer popular representation ([47:08]).

7. Structural Reform: If You Could Change One Thing…

(49:47–54:51)

• Listener’s Big Question: What single reform would hosts make to rein in lawlessness at the highest levels?
  • Gill: Add Supreme Court justices (to 13, one per circuit), set term limits, and create a “People’s House” chosen by lottery.
  • McCabe: Term limit Supreme Court justices—life tenure is outdated and risky.
    • “We are locking ourselves into nine people’s very unique perspective on the law for the term of their natural life. That’s the limiter here.” – Andy McCabe [51:01]
  • Both agree: boundaries, turnover, and new perspectives are indispensable to rebalancing power.

Notable Quotes & Memorable Moments

• “There wouldn’t be any way for. Even if we get Congress back, even if we get a super majority and pass a law trying to curtail Trump’s pardon power, it would be akin to a Voting Rights act or a codification of Roe v. Wade or gun control on a federal level, this Supreme Court will quickly and swiftly dismantle it and gut it.” – Allison Gill [11:18]

• “You can’t plead ignorance when you’re a lawyer.” – Allison Gill [21:50]

• “The processes are opaque. It takes forever. You don’t know what’s going on… The only real recourse you have is like the lawyers policing themselves.” – Andrew McCabe [27:31]

• “Grand juries and petit juries are allowed to find someone innocent of a crime without any basis in evidence… but they can do it in a way that's merciful… Whoever thought we would need the grand juries and the petite juries to be standing up and protecting us from authoritarianism in this day and age, but here we are.” – Andy McCabe [46:30] & [46:58]

• “There’s nothing about our government that should convey your right, you know, forever. It’s not a right. It’s a privilege to serve and it should have some boundary on it to bring in new blood.” – Andy McCabe [53:36]

Additional Timestamps for Key Q&A Segments

• Pardon Power Background – [01:27–04:52]
• Impeachment Limitation on Pardons – [05:54–08:14]
• Testing State Pardons & Supreme Court – [08:14–15:02]
• Birthright Citizenship/SCOTUS Concerns – [15:49–20:49]
• Bar Discipline and Accountability – [21:20–28:49]
• False Flag/Violence Conspiracy Theory – [28:49–33:15]
• Plain Sight Doctrine/Warrants – [33:15–39:03]
• Grand Jury Critique & Reform – [40:52–45:21]
• Jury Power & Justice System Commentary – [45:21–49:24]
• Structural Reform “Magic Wand” Question – [49:47–54:51]

Tone and Final Thoughts

The episode’s tone is a blend of dry humor, institutional frustration, and hope—sometimes wry, always clear-eyed about the threats to legal norms. The hosts believe reform is possible but face hard facts on how resistant current systems are to meaningful change. They frame the continued engagement of listeners (a self-styled “UnJustified Jury”) as a crucial bulwark against executive lawlessness.

• “It’s a new year. Let’s, like, let’s get fired up and charge into the burning barn together.” – Andy McCabe [56:16]
• “There is still a Department of Justice. I believe… but it kind of sucks.” – Allison Gill & Andy McCabe [55:56–56:12]

Closing

The hosts invite future legal questions from listeners, pledging more Q&A episodes as dangerous precedent and legal complexity mount in 2026. They reiterate their belief in the power of public engagement and vigilance as the best hope for holding the justice system to account, even when its formal checks and balances are under siege.

For more information or to submit questions, listeners are encouraged to follow the links in the show notes.