UnJustified – Episode 15: Constructive Custody
Release Date: May 4, 2025
Hosts: Alison Gill and Andrew McCabe
Produced by: MSW Media
Introduction
In Episode 15 of UnJustified, hosts Alison Gill and Andrew McCabe delve deep into the ongoing erosion of civil liberties and the rule of law under the Trump administration's Department of Justice (DoJ). This episode, titled "Constructive Custody," provides a comprehensive analysis of several critical issues, including the high-stakes Abrego García case, the contentious nomination of Ed Martin for U.S. Attorney in the District of Columbia, and significant shifts within the DoJ's Civil Rights Division.
The Abrego García Case: Delays and Diplomatic Standoffs
The episode opens with an in-depth discussion of the Abrego García case, a pivotal legal battle highlighting the Trump administration's tactics within the DoJ.
Discovery Delays and Judicial Responses
Andrew McCabe (00:08) notes, "Discovery in the Abrego Garcia case resumes after Judge Sinise denies the Trump administration an additional extension." Alison Gill (00:26) adds context, mentioning the precarious state of Ed Martin's nomination and broader DoJ actions affecting civil rights attorneys.
Gill (01:05) emphasizes the persistence of the case: "We've been tracking very closely... the Trump administration filed a motion to delay the two-week discovery process under seal." The initial delay was suspected to be a strategic move to find a resolution, but as revealed, it stemmed from diplomatic entanglements with El Salvador.
Diplomatic Efforts and El Salvador's Stance
Gill and McCabe discuss the administration's failed attempt to secure García's release through El Salvador's President Bukele. Gill (02:38) recaps, "They sent a note to Bukele asking him to release Abreco Garcia. But apparently Bukele said no." This denial exposed the limitations of the U.S. government's influence and highlighted the administration's overreach.
Judicial Orders and Potential Contempt Proceedings
Judge Sinise's firm stance is detailed, with Gill (04:00) outlining the court's orders: "Defendants, that's the Trump administration... shall answer and respond to all outstanding discovery requests." McCabe (06:31) expresses frustration over the administration's failure to comply, questioning the legitimacy of their delay tactics.
The hosts explore the implications of possible contempt proceedings, noting that while constructive custody is disputed, the administration's inaction could lead to significant legal repercussions.
Legal Analysis and Implications
Steve Vladic’s Perspectives
Gill (07:57) references legal expert Steve Vladic, who argues that Judge Sinise has jurisdiction to order the DoJ to take steps to return García. Vladic's analysis suggests that the DoJ's claims of limited control over detainees in El Salvador are unfounded.
Comparative Case Studies
The discussion draws parallels to past cases like Boumadene and Al Michaela v. Gates, highlighting the complexities of jurisdiction and custody in international detention scenarios. McCabe (14:42) underscores the outdated nature of the Alien Enemies Act, pointing out its rare usage and questionable applicability in modern contexts.
ACLU's Legal Strategy
Gill (19:06) explains the ACLU's stance, emphasizing public statements and memoranda that solidify the U.S. government's contractual relationship with El Salvador. The ACLU contends that such agreements render the DoJ responsible for detainee returns, despite the administration's public denials.
Ed Martin’s Nomination: Controversy and Opposition
The episode shifts focus to the beleaguered nomination of Ed Martin for U.S. Attorney in the District of Columbia.
Senate Judiciary Committee's Skepticism
Gill (37:09) highlights the growing opposition within the Senate Judiciary Committee, particularly from Republican members like Senator Thom Tillis (38:36). Tillis expresses reservations about Martin's past remarks and his representation of January 6th defendants, stating, "I'm going to have to get some pretty fulsome responses for me to feel comfortable with this nomination."
Democratic Push for Transparency
Democrats, led by Senator Dick Durbin, are advocating for a hearing to scrutinize Martin's qualifications further. Durbin’s spokesperson (40:09) emphasizes the need for transparency, citing Martin's problematic record and association with insurrectionists.
Widespread Disapproval from Former Prosecutors
A significant memo from nearly 100 former prosecutors from the U.S. Attorney’s Office in D.C. (45:52) stands in strong opposition to Martin, asserting, "There is a time when we are all called to stand for the full and fair administration of justice and rule of law... reject, outright and completely, the proposed nominee."
Additional DOJ Developments
Halting of Federal Grant Programs
In a lightning round segment, Gill (46:20) reports that the DoJ has halted 365 federal grant programs aimed at aiding victims of hate crimes, sex trafficking, and other critical issues. These cancellations disrupt vital support for vulnerable communities, with nonprofit leaders describing the freezes as "a devastating blow."
Reshaping the Civil Rights Division
The appointment of Harmeet Dhillon as the head of the Civil Rights Division has led to significant restructuring aimed at advancing Trump's social agenda. Gill (48:55) notes that Dhillon's focus areas include combating antisemitism and opposing diversity initiatives, resulting in the departure of about half the division’s lawyers.
Justice Ketanji Brown Jackson’s Critique of Hostile Rhetoric
Justice Jackson (49:30) delivered a powerful address condemning Trump’s attacks on judges, stating, "The attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity." She urged judicial colleagues to "keep doing what is right for our country," reinforcing the judiciary's role in upholding the Constitution amidst increasing political hostility (50:44).
Listener Questions: Constitutional Crisis and DOJ Legal Resources
Constitutional Mechanisms Against Executive Overreach
Listener Ian from Canada (50:59) poses a critical question: "What would happen if the executive branch under Donald Trump ignored the other two branches? What repercussions are there? What would it take to stop Donald Trump if he broke the laws and the other two branches span of authority?"
Gill and McCabe (52:50) acknowledge the unprecedented nature of such a scenario, explaining the traditional checks and balances but emphasizing the current administration's attempts to circumvent these mechanisms. They discuss ongoing court cases, such as Judge Boasberg's potential contempt proceedings, as frontline defenses against executive overreach.
Possibility of Leveraging Pro Bono Legal Services
Another listener, Lee (55:03), asks whether Trump could utilize pro bono legal services from pledged law firms to bolster the DoJ's legal representation. Gill (55:15) and McCabe (56:29) analyze the complexities, noting that while theoretically possible, formal structures and governmental authority would be required to integrate private attorneys into official capacities.
Conclusion: The Path Forward and Ongoing Struggles for Justice
Alison Gill (60:45) and Andrew McCabe (62:11) reflect on the broader implications of the discussed issues, emphasizing the fundamental right to due process for all individuals in the United States. They draw parallels to past civil rights struggles and current challenges, underscoring the importance of vigilance and advocacy in preserving democratic principles.
Gill (63:53) expresses frustration with the DoJ's erosion of legal integrity, contrasting it with the more robust government actions depicted in previous cases like those involving Jack Smith. The hosts commit to continuing their coverage of these critical legal battles, aiming to inform and empower their listeners against the ongoing threats to civil liberties.
Final Thoughts:
Alison Gill concludes the episode with gratitude towards listeners, highlighting the importance of public awareness and continuous dialogue in combating the DoJ's undermining of justice and democracy. The episode promises further updates and in-depth analysis in subsequent installments.
Notable Quotes
- Alison Gill (00:56): "This is a podcast that follows Trump's Justice Department, or lack thereof."
- Andy McCabe (04:00): "She's asking for that no later than Monday this coming. That's tomorrow, May 5th."
- Alison Gill (07:57): "Steve Vladek points out... the question in Abrego Garcia is not whether Judge Senis can order Bukele to do anything she cannot."
- Alison Gill (38:44): "When you think ahead to 2028 and 2029, particularly January 6, 2029, do you want an insurrectionist to be the D.C. U.S. Attorney?"
- Justice Jackson (49:30): "The attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity."
- Alison Gill (61:14): "We have to keep pushing back on the propaganda because, for example..."
Closing Credits
UnJustified is written and executive produced by Alison Gill, with additional research and analysis by Andrew McCabe. Sound design and editing are handled 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. 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, visit mswmedia.com.
Stay Informed and Engaged:
Listeners are encouraged to submit questions via the link in the show notes, fostering an interactive dialogue on pressing legal and political issues facing the United States today.