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UnJustified
Constructive Custody
01:06:01
Discovery in the Abrego Garcia case resumes after Judge Xinis denies the trump administration an additional extension Ed Martin’s nomination as United States Attorney for the District of Columbia is teetering on the brink after Senator Dick Durbin says that the Senate is not going to move forward with it. Department of Justice civil rights attorneys leave in droves as the administration guts programs for crime victims Pam Bondi rescinds Biden-era protections preventing the Justice Department from spying on journalists. Plus listener questions…
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- [00:01]
Alison Gill
MSW Media.
- [00:08]
Andy McCabe
Discovery in the Abrego Garcia case resumes after Judge Sinise denies the Trump administration an additional extension.
- [00:17]
Alison Gill
Ed Martin's nomination as United States Attorney for the District of Columbia is teetering on the brink after Senator Dick Durbin says his understanding is that the Senate is not going to move forward with it.
- [00:27]
Andy McCabe
Department of justice civil rights attorneys leave in droves as the administration guts program for crime victims.
- [00:34]
Alison Gill
And Attorney General Pam Bondi rescinds a Biden era protection against the Justice Department spying on journalists. This is unjustified. Hey everybody. Welcome to Unjustified. This is episode 15. We're on 15 weeks now.
- [00:56]
Andy McCabe
Look at us.
- [00:57]
Alison Gill
Yeah. This is a podcast that follows Trump's Justice Department, or lack thereof. It is Sunday, May 4th. May forth be with you. I'm Alison Gill.
- [01:06]
Andy McCabe
And I'm Andy McCabe. We got a lot to cover this week, Allison. No change from any other week really, especially lately. So let's jump in with the latest in the Abrego Garcia case, which we've been tracking very closely. So last week the Trump administration filed a motion to delay the two week discovery process under seal, and it included something that caused both Judge Sinise and the lawyers for Abrego Garcia to agree to halt the discovery process for a week.
- [01:35]
Alison Gill
Yeah. And you and I had some guesses about what it must have been because it could, it couldn't have been like what we said, like his brother's ex, best friend's boyfriend's girlfriend needed a ride to 31 Flavors or whatever, or just a regular old delay. Right. Because she had excoriated the government just the day before about their lack of discovery or stonewalling discovery. So she was not too pleased, none too pleased with the, with the Trump administration the day before. And we know that the lawyers for Abrego Garcia are also very wary of, of what the Trump administration is doing. And then the New York Times reported that the Trump administration had sent a note to the President of El Salvador Bukele asking him to release Abreco Garcia. But apparently Bukele said no.
- [02:22]
Andy McCabe
What?
- [02:23]
Alison Gill
Ah, yeah. And so like I said, you and I talked about the possibilities and figured it must be the government promising to release him. Right. Like give us a week, I think we're going to try to release him. Right?
- [02:38]
Andy McCabe
Yeah. When, when we heard about the delay, Right. We were like, well, they must be working on some sort of a resolution to this whole thing.
- [02:46]
Alison Gill
Right. Because it wouldn't just be, we need another week because we're really thinking hard about the state secrets privilege or this new privilege we just invented called the governmental privilege or. Yeah, whatever. So it wasn't. We. It couldn't have been anything like that. So we figured he. They promised, yeah, we're gonna. We're gonna try, and these are the steps we're gon. Right. And so, you know, they gave him a week to. To do this, right?
- [03:09]
Andy McCabe
Yes. You know, it's. It's crazy to me this, that we asked and Bukele said, no.
- [03:16]
Alison Gill
No, I know.
- [03:17]
Andy McCabe
And the. The power and the might and the majesty of the United States government shrugged their shoulders and walked away.
- [03:24]
Alison Gill
Yeah, and. And. And that's embarrassing if you're the president of the United States and you can't get El Salvador to agree to do something.
- [03:32]
Andy McCabe
Yeah, yeah. Because we know that Donald Trump always takes no. Right, Right. He's such a history of, like, just accepting people saying no to him. Yeah, that seems ridiculous. So Abrego Garcia's lawyer also told Rachel Maddow that the sealed delay request did exactly that. It said that the U.S. department of justice needed time to take steps to return Abrego Garcia to the United States.
- [03:58]
Alison Gill
So their lawyers confirmed.
- [04:00]
Andy McCabe
That's right. But the day before the delay was going to expire, the government filed another motion under seal, and this time, the judge denied it and ordered the discovery process to resume.
- [04:11]
Alison Gill
Yeah, fool me once, right? This is what her order said. By no later than Friday, May 2, 2025, which was a couple of days ago, the plaintiffs, that's Abrego Garcia's lawyers, must narrow their interrogatories 9 through 11 and requests for production of documents 6 through 8, consistent with her other order that came out before the delay was granted. Now, also she said, defendants, that's the Trump administration. The government shall answer and respond to all outstanding discovery requests and supplement their invocation of privileges consistent with the court's order. That means give me a. Give me a log, and if you don't give me a privilege log, I. I am taking away all of your privileges.
- [04:55]
Andy McCabe
Exactly.
- [04:56]
Alison Gill
She's asking for that no later than Monday this coming. That's tomorrow, May 5th. The depositions of Robert Cerna, Evan Katz, Michael Kak, and Joseph Mazara, the four people that had, you know, submitted affidavits, sworn declarations. They need to complete depositions no later than Friday this coming Friday, May 9th. And by no later than this Wednesday, May 7th, the plaintiffs can move for leave of court to conduct up to two additional depositions of individuals with knowledge and authority to testify regarding the matters identified in the her original or not original Order, but one of. One of her many orders. And the defendants can respond to that by Thursday, the next day, May 8th. And that's where you and I, Andy, were like, they should get Kristi Noman on the stand or Marco Rubio or something.
- [05:47]
Andy McCabe
Yeah, for sure.
- [05:48]
Alison Gill
And then she says, at the conclusion of the expedited discovery, but no later than May 12, that's a week from tomorrow, plaintiffs shall file. Abrego, Garcia's lawyer, shall file a supplement to their motion for other relief. That's like contempt or show cause or sanctions. Right. And the Trump administration can respond to that no later than Wednesday, May 14, 2025. So this discovery process is like a prelude to contempt proceedings. Right. Let's get all the information we can, and then Abrego, Garcia's lawyers, you guys, can file for sanctions or a show cause motion to kick off contempt proceedings, et cetera. And all of that has to be done by May 14th.
- [06:31]
Andy McCabe
That's right. That's right. I'm kind of shocked that her order here didn't start with, I can't believe I gave them another week. I mean, it just. It felt like last. This time last week, we were just stumped and thought it must be something really significant that they've promised. And now it turns out that was, in fact, the case. And lo and behold, they failed to deliver. I have some serious questions about how legitimate their ask was, or maybe if their ask was also transmitted with some other instructions or hints informing Bukele that a denial would be absolutely acceptable in their. In their eyes. So, you know, there's no way to know that. But it. The idea that Bukele, who is literally a contractor for the. For the federal government, now, he's being paid a lot of money, $6 million possibly, to hold these. These detainees for one year. At the end of that term, he has said, his government has said that, then it's up to the United States to decide what to do. So that's certainly indicative of some sort of contractual relationship in which he is subservient to whatever it is the Trump administration wants done. So it's hard to believe that a legitimate, forceful, persuasive request for the return of Mr. Abrego Garcia was actually delivered.
- [07:58]
Alison Gill
Yeah, and that's where a contempt thing would come in, I think, because, you know, as Steve Vladek points out, you know, Judge Sinis cannot order Bukele to do anything, but she definitely has jurisdiction to order the Trump administration to do something. And the court can examine the actions that they take. Right. The steps they Take to facilitate the return of Abrego Garcia. Steve Ladic wrote in his substack, the question in Abrego Garcia is not whether Judge Senis can order Bukele to do anything she cannot. It's whether and to what extent Secretary Nome, who certainly is subject to Judge Senas's jurisdiction, can take steps to effectuate a bro Garcia's return. If Gnome swears under oath that she's powerless, Steve Vladic says that would be one thing, but one, that would be more than a little difficult to believe, and two, that hasn't happened yet. So, yeah, you know, that's. And I personally, Andy, especially after that New York Times piece came out, and then the lawyer for Abrego Garcia went on Maddow and said, yeah, that's what it was, is they asked for a week to try to release him. And then obviously, it seems to me Trump was like, hey, Mr. Bukele, I'm going to ask you a question and you're going to say no. Okay. And that's. I think it was a ruse to delay discovery or, or an effort to.
- [09:26]
Andy McCabe
Try to kill the thing entirely.
- [09:27]
Alison Gill
Right.
- [09:28]
Andy McCabe
Maybe this will be the flag that they fly going forward in this thing legally saying, hey, we did everything we possibly could. We employed the, the diplomacy, we tried the influence of the United States government. We asked, they said no. Now we're out. We're out of options. There's nothing you can order us to do because that's essentially what the court is ordering or is going to order them to do, like take, take the actions, the lawful actions that you as the United States have the tools in your toolkit and use, employ those tools to get this guy back. And, and, you know, it's like what we've seen in Judge Boasberg's court. Right. She can't order Bukele to do anything. She can order the US Government to take steps, I believe. And then it becomes a matter of, are they complying with her order? Right. Whether they like it or not, they have to comply with it.
- [10:17]
Alison Gill
And I think the court, I think she could get stuck there because, you know, she would be saying, I don't think you've done enough. And Gnome will say, I've done everything I can. He says, no. And the court, and maybe Abrego's, Garcia's lawyers can argue that, no, you haven't done enough or prove that you've done enough. Show us what you've done. But I mean, you. It's like then it becomes a he said, he said, doesn't it?
- [10:43]
Andy McCabe
Absolutely. Yeah. Absolutely.
- [10:45]
Alison Gill
And I think we get stuck there, honestly and sadly. And that might be true for Boasberg's case, too, which we're going to discuss in a minute. Because if you're wondering what Trump's defense is in the Abrego Garcia case, if you're wondering what it might be, we have some big clues because the government has filed its response on Judge Boasberg's docket in the case filed by the ACLU on behalf of all the rest of the men stranded in Seacoat. And we'll get that defense. We'll get, we'll get to. We're going to discuss it because there's several issues that they bring up on Boberg's docket. We're going to discuss all of that after this quick break. So stick around. We'll be right back.
- [11:33]
Andy McCabe
Welcome back. All right. After the Supreme Court made its ruling vacating Judge Boasberg's temporary restraining orders and declaring that all Alien Enemies act cases must come in the form of habeas petitions in the districts where plaintiffs are being detained, multiple petitioners began filing habeas claims. One in Colorado, where a judge has issued a temporary restraining order, one in the Southern District of New York, where there's also a tro, and one in the Southern District of Texas, which included three of the original five plaintiffs, among others. Now, just this week, the judge in the Southern District of Texas issued a permanent injunction and became the first court to declare Trump's use of the Alien Enemies act unlawful.
- [12:19]
Alison Gill
Hmm. And that might be the thing that unjams us and gets us out of this pickle with everybody who's in Cekote, right? I don't know. Maybe.
- [12:28]
Andy McCabe
But it could be the case that makes its way to the Supreme Court to decide the legality of the, of the application of the Alien Enemies Act.
- [12:37]
Alison Gill
Yeah, it's either that one from the Southern District of Texas, Judge Fernando Rodriguez, like you said, a Trump appointee, or this one, the one that ACLU filed on behalf of the rest of the people down in Seacoat in D.C. so the judge, like, like you said, Trump appointee. And as it turns out, the proper jurisdiction to file habeas petitions for people who've already been removed or aren't in the United States is the District of Columbia. And the ACLU filed their amended complaint on Judge Boasberg's docket. And added Andre Hernandez Romero, the openly gay stylist, and Frangal Reyes Mota, the man who has zero tattoos and was sent to Seacoat On a paperwork error. They've been added to this case as the lead plaintiffs. They also. We talked about this last week, filed simultaneously a motion for class certification and had a couple of subasses that we talked about and a motion for a preliminary injunction. And this is the. But we're going to talk about Trump's response to their amended complaint arguing that Trump's use of the Alien Enemies act violates all kinds of laws and the constitution. So from 50,000ft, Andy, five plaintiffs. This all started. Five plaintiffs filed for a temporary restraining order in Boseberg's court back in March. Boasberg granted it and ordered the planes be turned around. The Supreme Court said, no, you can't issue a nationwide injunction, so we're vacating your temporary restraining orders. And from now on, you have to file habus petitions in the jurisdictions where people are being held. So the two guys from the original filing that were in New York filed in New York and they have a restraining order. Like you said, the three guys in Texas filed in Texas, some in Colorado that weren't part of the original case have filed etc, and the people in Coat still filed in D.C. here with the ACLU. That's this case. The Trump administration has filed its response. And in it, we kind of get a glimpse into what the government's defense will be in these Alien Enemies act cases. This is their defense for being able to use or invoke the Alien Enemies act, right?
- [14:43]
Andy McCabe
That's right. And, and let's remember the Alien Enemies act dates back to what, 1798 or something like that, late 1700s. And it entitles the United States government to remove people who are here during a time of war or incur. Incursion. And it's only been used three times, I think. Right. World War I and 2 and 1812. 1812. Okay, so let's look at the government's defense. So first they argue that Boseberg doesn't have jurisdiction. They say this is petitioner's second attempt to challenge the president's invocation of the Alien Enemies act with respect to trend Aragua, in a district in which none of the affected individuals are located. The Supreme Court decisively rejected the first attempt. The second one should meet the same fate.
- [15:32]
Alison Gill
Of course, they're not in D.C. they're in El Salvador, sir.
- [15:36]
Andy McCabe
Yeah, they.
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Alison Gill
Why didn't you file in the Southern District of El Salvador?
- [15:40]
Andy McCabe
They're residents of the district of El Salvador. Yeah, exactly. Okay, so the problem with this argument, as you said, is the plaintiffs are actually in El Salvador and therefore DC Is the proper venue. There's plenty of case law supporting that. And to say that this is like the first case the Supreme Court vacated is really a bad argument. The first case was rejected because the five plaintiffs were still in the United States. Two in Southern District New York, three in Southern District of Texas. So the proper venues, per the Supreme Court and for those people were the Southern District of New York and the Southern District of Texas. And a judge has issued, of course, as we said, temporary restraining orders in both of those districts after the plaintiffs went ahead and filed the habeas motions that the Supreme Court said they had to do. Okay, so the Trump administration also argues that the government does not have constructive custody of the men in CECOT and that El Salvador has custody.
- [16:41]
Alison Gill
Wrong.
- [16:41]
Andy McCabe
Yeah, so this is another, this is another problem here because this has not been true in some previous not identical, but similar cases. Okay, so when the US has sent detainees to Guantanamo in the past, courts have held that we maintain constructive custody of them. But let's remember that the detainees in those cases were in a US Administered territory, Guantanamo Bay, which is a, which is, it's an. It's in Cuba, but It's essentially like U.S. diplomatic space. Right. And they were on a U.S. military base and they were, they were officially in the custody of U. S. Military police.
- [17:22]
Alison Gill
Yeah, but it also has to do with where they were apprehended, right?
- [17:26]
Andy McCabe
Yes. They were all picked up in other places. Afghanistan, Pakistan, what have you.
- [17:32]
Alison Gill
Yeah, but while the ACLU cites a case called Boumadine, I think I pronounced that. Right. That's the Guantanamo case. Also the government in response cites Alma Kayla. How do I say that? Alma Kayla Al Michaela v. Gates, which is a 2010 case, and this is what it says, where the D.C. circuit found no habeas jurisdiction, even though the aliens were held by the US Military at an Air Force base because the US Was merely leasing the base and did not have de facto sovereignty over it here. Not only does the government not have sovereignty over Sea Code, but it doesn't even have a military presence or a lease that defeats the habeas jurisdiction. That's their argument.
- [18:17]
Andy McCabe
That's the Trump administration's argument here.
- [18:19]
Alison Gill
Yeah, but the Bush administration, back in the Al Makayla case, decided to render Alma Kayla to Bagram instead of Guantanamo to circumvent the reach of habeas. And Al Makala was apprehended outside of the United States, outside of Afghanistan, actually. And that is one of the factors in Boumadine, where you're apprehended not just where you're being detained.
- [18:44]
Andy McCabe
Correct.
- [18:44]
Alison Gill
And the men in this case were apprehended in the United States. But who knows? Perhaps this Supreme Court will decide. This case is more like Al Michaela and less like Boumadine. But it sounds to me like a lot of this depends on the detention agreement between the government and El Salvador. Which the government refuses to share with the court.
- [19:06]
Andy McCabe
That's right. So the ACLU argues that the agreement between the United States and El Salvador shows that El Salvador functions the same as any other contract facility, and therefore the US Government maintains the power to secure and transport detainees. Now, since the government refuses to share that agreement, the ACLU points out multiple public statements from the administration that the agreement exists. And if it exists, the government has control over what happens to people detained in the United States and sent to El Salvador at the United States government's request.
- [19:43]
Alison Gill
Right. Like if we detained a bunch of people, El Salvadorans, and ran them through INA and decided that they weren't here legally, and legally deported them to El Salvador, and then they got in some trouble and ended up in Seacoat. That's very different than Trump paying Bukele $6 million to accept a planeload of detainees and put them in Sea Coat.
- [20:02]
Andy McCabe
Yeah. You have to think about this as basically, like, agency theory, Right? If I do something, then I'm responsible for it. If I pay you to do something, I'm probably responsible for that too, because you're acting as my agent. That's a fundamental kind of theory in American jurisprudence. Okay. So in the ACLU's complaint, they cite the following examples. Now, these are examples of US Officials making public statements that indicate or serve as evidence of the existence of this agreement between the US And El Salvador. So the first one is social media posts by Secretary of State Marco Rubio discussing the US Agreement with Salvadoran government to detain individuals in exchange for payment. Seems pretty clear to me. We have quite a few more here.
- [20:55]
Alison Gill
There's more. Yeah.
- [20:56]
Andy McCabe
That's probably enough. The second one is White House spokesperson Caroline Leavitt. Am I pronouncing her name correctly?
- [21:03]
Alison Gill
I think it's Levitt, but.
- [21:04]
Andy McCabe
Levitt. Okay.
- [21:05]
Alison Gill
Yeah.
- [21:05]
Andy McCabe
Caroline Levitt stating the detention cost was, quote, approximately 6 million to El Salvador. Okay. You don't just pay someone 6 million for nothing. There's something comes back in return in exchange for that 6 million. And that's what makes it a contract. It's an offer and acceptance. Right. All right. Third one is another social media post by Rubio saying, very good jails at a Fair price. That will also save our taxpayer dollars.
- [21:32]
Alison Gill
Oh, our taxpayer dollars.
- [21:34]
Andy McCabe
Yeah.
- [21:35]
Alison Gill
Paid for this detention.
- [21:37]
Andy McCabe
Yep. And if that weren't enough, you have Salvadoran President Nayibu Kale said, quote, he has publicly touted the agreement terms, while the El Salvador Ministry of Foreign affairs has published its memorandum reflecting the agreement for that country to hold detainees for one year pending the United States decision on their, quote, long term disposition.
- [22:00]
Alison Gill
I'm sorry, did you say the United States decision?
- [22:03]
Andy McCabe
I did, yeah.
- [22:05]
Alison Gill
How does the United States get a say if it's completely sovereign to the sovereign state of.
- [22:13]
Andy McCabe
I. You know, that's a great question. I think another interesting thing about this is the term that they published a memorandum reflecting the agreement, I. E. This memorandum was based on a reading of the agreement, so therefore it exists. And also part of that agreement is for the country to hold the detainees for one year. Now, a first year law student could tell you that one of the elements that proves the contract that you have to have in a contract is the.
- [22:41]
Alison Gill
Term, the time period. Right.
- [22:43]
Andy McCabe
Every contract has to have a specific time period, like this one, as one year.
- [22:47]
Alison Gill
Yeah. And the fact that the United States can amend that and it's not fully just Bukele's decision.
- [22:55]
Andy McCabe
That's right.
- [22:56]
Alison Gill
Means that we have constructive custody of these detainees.
- [22:59]
Andy McCabe
But even if it was just Bukele's decision, the next example is Bukele has posted on social media that El Salvador, quote, offered. Offered the United States of America the opportunity to outsource part of its prison system and that the United States, quote, will pay a very low fee to detain alleged TDA members at seco.
- [23:18]
Alison Gill
Hmm.
- [23:19]
Andy McCabe
And then finally, you have DHS Secretary Kristi Noemes, who's personally toured Secote the facility and declared that transferring those previously on US Soil to Secote is, quote, one of the tools in the United States toolkit that we will use if you commit crimes against the American people. Thank you, Secretary. Secretary Gnome.
- [23:40]
Alison Gill
Fantastic. So nobody talked to any lawyers about anything before. They just said this stuff. They didn't go on their signal chat and figured out.
- [23:49]
Andy McCabe
They just say the quiet part out loud, which is. It's good. It's good. It helps us keep track of what's actually going on.
- [23:55]
Alison Gill
I object. On what grounds? It's devastating to my case. That's. And by the way, you're going to love how the Trump administration responded to that litany of evidence. So remember, we're talking about Trump's response to the ACLU's lawsuit to release these guys from Seacoat. This Is what Trump said about all that that you just went over Petitioners. Primary evidence that the United States has custody comes from a handful of vague statements by a few officials that the United States is paying El Salvador to detain petitioners. This is contrasted by a clear official declaration under oath that the United States does not have custody or control over the petitioners. El Salvador makes its own detention choices as a separate sovereign, and that should suffice.
- [24:49]
Andy McCabe
Huh? So we should just take their word for it and not take all their other words for it.
- [24:56]
Alison Gill
I wish that there was a. I wish that they had cited a bunch of stuff where they lied to the public but said something different in court as evidence that they often do this. That would be fun. Like, remember when we said that Trump ordered 10,000 National Guard to the Capitol, but under oath and here in filings, we said that that never happened. This is one of those situations. So whatever Christine Gnome said and Bukele and Marco Rubio, that's the. That's the lies we tell to the public. The real truth is that one guy in one affidavit saying that we say under oath that we don't have custody or control.
- [25:33]
Andy McCabe
They also said that the planes couldn't turn around. I mean, this gets back to what we talked about last week. This, like, presumption of normal order that the United States government used to enjoy in federal courts is. Is. Is eroding. It's. It's disappearing because they say things that are patently false now. And. And in this case, we're not saying, oh, we're gonna take. You should take our word over your word, where simply, the ACLU is saying, these are your words, too.
- [26:04]
Alison Gill
Yeah.
- [26:04]
Andy McCabe
You have said the. You said the opposite thing six times, and now you're saying different. So let's leave it up to the judge to decide who they believe you or the older you.
- [26:15]
Alison Gill
But get this. They go on to say, though, Andy. They go on to say, hey, man. And even if. Let's say there's an agreement, like, let's say we have an agreement, even if that agreement exists, they say, quote, to the extent the United States and El Salvador made a bilateral agreement, it's not an enforceable agreement providing that the United States can obtain or retain control over aliens imprisoned on Salvadoran soil by Salvadoran guards. So they're like, even if we do have an agreement saying that we maintain custody, that's not enforceable. We signed an illegal agreement with El Salvador, and it shouldn't be. It shouldn't be honored. That's basically what they're saying, do you.
- [26:57]
Andy McCabe
Remember that thing last week we were talking about like they came into court and never made the argument in the alternative lawyer. So here they're at least, they're doing that at least to be like, but if there's an agreement, which we said, we said there's not, but if there is, it's not enforceable.
- [27:13]
Alison Gill
Okay, so I guess they learned their lesson. We should give any, we should give an even if statement.
- [27:18]
Andy McCabe
Right. Improvement. We'll give them like one point for improvement this week. They. Yeah, but I mean like, okay, so then what happens if you don't pay them the $6 million, is that also not enforceable? Probably not. So it's a mess. But lastly, the government says even if Boasberg has jurisdiction here and the government has constructive custody, the President had ample basis to determine that TDA for purposes of the Alien Enemies act is a foreign nation or government invading or engaging in predatory incursion into the United States. Now this is where we look to the Southern district of Texas. The Trump appointed judge in the Southern district of Texas disagrees with that, saying that the courts interpret the law, not the President, and that the President's interpretation of the law is reviewable by the courts. And for that precedent we have which case to thank.
- [28:17]
Alison Gill
Marbury v. Madison.
- [28:19]
Andy McCabe
Yes. Look at you. Look at you.
- [28:21]
Alison Gill
Look, look at me. I passed my first bar question.
- [28:25]
Andy McCabe
I think you did. I think you did. Yeah, right there.
- [28:27]
Alison Gill
I mean that's, that's funny. So, okay, we don't have an agreement. That's vague stuff and they're lying and we're telling you. But even if we did have an agreement, it's not a binding agreement.
- [28:40]
Andy McCabe
It doesn't let us do what you want us to do.
- [28:42]
Alison Gill
And even if you decide we have an agreement and you have jurisdiction, we get to decide the terms and definitions in the Alien Enemies act and the law and the statutes. The President gets to decide that, not the court. And that is just on its face, completely false.
- [29:02]
Andy McCabe
Yeah, I mean, here's how it works. The President, the administration gets to take a shot. That's their job, to run the administration in accordance with the law. They have all kinds of big headed lawyers to tell them how to do that. And they can take their shot. But you know what? Their shot is reviewable by the courts. That's how this works.
- [29:22]
Alison Gill
Wasn't there a guy in Saudi Arabia in 2004 where the courts were like, yeah, no, the habeas exists for this. And so what the government did in response was brought him back and tried him here in the United States.
- [29:34]
Andy McCabe
Yes. You know, the bush administration is kind of an interesting analog because they fought these battles over habeas with the detainees all. Many of them, different situations. Some picked up here, some picked up other places, some brought to the United States and held in military detention so as to avoid being put into Article 3 federal criminal courts. And ultimately, they lost every one of those fights. And as they. As they either lost in court, when they lost in court, they complied with the court's decision, Even though they didn't like it, it didn't agree with it. And when they saw the. All the decisions going in that direction, they just. They just stopped fighting it. They. They took the detainees who fell into these categories and they moved them into u. S. Criminal court. They were indicted, they were brought in, or they pled guilty, whatever.
- [30:25]
Alison Gill
And that's what we're asking for here.
- [30:27]
Andy McCabe
Yeah, the guys at gitmo are kind of the exception because we're still struggling with the military trials process down there, which has been a total failure. But, yeah, in terms of, like, the Richard Reed and all these other kind of problematic detainees, eventually the bush administration folded on all that stuff. This one, though, man, they don't look like they're gonna fold.
- [30:53]
Alison Gill
No, they're. I think they're gonna say. I think they're gonna have kristi noem come in and say under oath. I asked. I tried everything, and they said no, and I don't. It's not. That's. I mean, it's not a good look, wonkily speaking, because it makes the United States look weak. Like they can't. Like they can't win an arm wrestling contest with bukele and gets it. Get them to do something that they want them to do. But in the bigger political picture, they get to say, oh, we won. We don't have to bring these people back.
- [31:28]
Andy McCabe
Yeah. And they also are doing it in kind of a wink, wink, nod, nod way. You know, it's almost kind of like Russia. And when Russia sends a team of spies to england or Germany or fill in your country to kill someone, they do it with, like, a Russian chemical weapon that no one else in the world has. And then they say, we didn't do it, and they just stare right at novichok.
- [31:50]
Alison Gill
That's not us.
- [31:51]
Andy McCabe
They know. They know they did it. And now you know they did it. They're going to officially deny it, but they want you to know they did it. And that's kind of. This has a feel like that. Like, we can't get him back, you know, and everyone knows you could. But they're going to try to back this thing into a corner, I think.
- [32:10]
Alison Gill
Yeah. And then I'm going to, as a political commentator, exploit that and say how weak this Trump administration is, that it can't put one over on Bukele, that it can't order Bukele to do something that's a, like, that's.
- [32:22]
Andy McCabe
Yeah.
- [32:23]
Alison Gill
It's not true. Right. But were it true, that's really bad. Like that we can't, that we can't get El Salvador to cooperate with us on some, some sort of thing like this.
- [32:37]
Andy McCabe
Yeah, I mean, that's totally. And of course, Trump contradicted that in his comments to I think ABC News this Week in that interview or CBS maybe in that interviewer who's asked, why don't you just call him, get it, call Bukele and get it back. He said I could call him and get him back, but I'm not going to.
- [32:53]
Alison Gill
Right. Yeah, yeah, he said he could. And that that might come up too, in, in either of these cases of Prego Garcia or the one in front of Judge Boasberg.
- [33:04]
Andy McCabe
Yeah.
- [33:05]
Alison Gill
Because you said you could. Why can't you that you know that. But like, where do you go from there? It's, we'll see. It's tough if the Supreme Court, you know, when one of these cases makes it up to the Supreme Court and the Supreme Court says, yeah, the Alien Enemies act proclamation is unlawful here because it's not an invasion or an incursion. And Trenderog was not in doing an incursion on the United States on behalf of Maduro and the Venezuelan government. So we find this Alien Enemies act proclamation unlawful. But then still, how do you get people back from Seacoat?
- [33:43]
Andy McCabe
Yeah, it's. That will. I think, I think it'll go that way. If, if this decision in Texas is any indicator, I think that the argument under the Alien Enemies act is, is pathetic. So. But that's offers no comfort to the people who are already there. It may help avert sending any, anyone else there, but we'll see. I have to see how that plays out.
- [34:07]
Alison Gill
Yeah. Because everyone that's there, Kristi Noem, will just say, I tried. And Bukele said no. And so I have followed the court order, which is to facilitate the return of Abrego Garcia. I did everything I could. Here's the steps that I took. I sent him a note. I made a phone call. He said, no, you know, and what are they going to do? Like Subpoena the private conversations of Trump and Bukele for when the deal was made. That's not. Doesn't exist, you know, so, I mean, it exists, but they're not going to hand that over. They're going to shred it or it was a phone call on a burner. I don't know. They're not going to be, you know.
- [34:44]
Andy McCabe
I just feel like it's been deleted.
- [34:47]
Alison Gill
Yeah. Mike Waltz has left the chat. I just feel like that's where we're gonna run into the. Into the problem is that the Supreme Court will say, well, the Trump administration did their best, they tried, and there's nothing we can do about it now.
- [35:03]
Andy McCabe
Yeah, it'll be interesting, too, to see, like, you could make it painful. The path there, you still might get there anyway, but you could make it painful. So if the judge really digs into this in a series of hear, you know, to find out like, well, who, who made the request and what. I want the letterhead, I want the copy, whatever, whatever. And then they're gonna, oh, well, no, we just had a conversation on the phone. Like, who was on the conversation?
- [35:30]
Alison Gill
No, that's deliberative process privilege.
- [35:34]
Andy McCabe
Either Trump has to put himself in that role, and maybe that's, in fact, how it happened. But anyone else could be subject to getting called into court, subpoenaed and put in front of the judge and placed under oath and asked some very penetrating questions about exactly what did they ask for and what was there an agreement or an indication or did you also signal to them in any way that they didn't have to agree to this? And, I mean, you could, you could make it painful if, if you felt like it.
- [36:04]
Alison Gill
Right to the point where they do. What the Bush administration did was just bring everybody back and put them through due process and send them somewhere else.
- [36:12]
Andy McCabe
Exactly.
- [36:13]
Alison Gill
Which would be due process. Right, Right.
- [36:17]
Andy McCabe
Day in court is what these people are asking for.
- [36:20]
Alison Gill
Yeah, that's all they want. They don't want to be released into the United States. They just want due process. All right, we're going to shift gears. We're going to talk about the embattled nominee for U. S. Attorney in the District of Columbia, Mr. Ed Martin. His confirmation is facing some pretty big headwinds, but, you know, we've heard this about Hegseth and we've heard it about. We've heard it about Kash Patel. So I don't know how strong these headwinds are, but we'll talk about that after break. Stay with us. All right, everybody, welcome back. Oh, Ed, Eddie, Eddie, Ed. Andy. Allow me to read from this piece by Nicole Lafond, a talking points memo.
- [37:07]
Andy McCabe
Please go ahead.
- [37:09]
Alison Gill
Thank you. President Trump's nominee for D.C. u.S. Attorney Ed Martin appears to be facing skepticism from the Senate Judiciary Committee, Republican members of which met this week to discuss the seem seemingly endless baggage and politically motivated acts that Martin has and will likely continue to mix into his work if officially confirmed to the position. Republicans on the panel also reportedly discussed whether to consider their Democratic colleagues requests to hold a hearing on Martin's confirmation. Right, because I don't think the US Attorneys get hearings usually. Now it appears a few Republican members have some hang ups about the guy.
- [37:49]
Andy McCabe
Yeah. So Senator Thom Tillis, Republican from North Carolina, is the only Republican thus far to publicly acknowledge Martin might not be a great fit for the job. You think? He's been saying as much since February now. According to cnn, Tillis said this week that he has serious questions about Martin's nomination, specifically noting that his past remarks criticizing police officers who defended The Capitol on January 6th gave him pause. Martin, of course, also represented January 6th defendants. Quote, I'm talking about somebody who wants to be U.S. attorney in the jurisdiction where that event and future events could possibly occur, Tillis told cnn. And I'm going to have to get some pretty fulsome responses for me to feel comfortable with this nomination.
- [38:36]
Alison Gill
Yeah. When you think ahead to 2028 and 2029, particularly January 6, 2029, do you want an insurrectionist to be the D.C.
- [38:45]
Andy McCabe
U.S. Attorney batting down the hatches? Tom? Yeah, the guy who's like, who's insulting the law enforcement presence on the Capitol is now going to be the U.S. attorney working with those law enforcement officers. I mean, awkward.
- [39:00]
Alison Gill
Yeah, right? Awk. Senate Judiciary Committee Chairman Chuck Grassley. He made a pseudo acknowledgment this week that some of his fellow Republicans on the panel may not be completely sold on Martin serving in a permanent capacity. This is according to cnn. Quote, we've had people on our staff that had more questions. That's what Grassley said. According to CNN in an email the Talking Points Memo Thursday, Josh Sorby, spokesperson for Dick Durbin, ranking member of the Senate Judiciary Committee, said Durbin's and other Democrats effort to shed light on how unqualified Martin is for the position, as evidenced by how he has used the gig in an acting capacity thus far to carry out Trump's retribution agenda. Quote, ranking member Durbin and Senate Judiciary Committee Democrats will continue to scrutinize Ed Martin's deeply problematic record and make the case that he is not fit to be US Attorney. Ranking member Durbin will call for a vote on holding a hearing if and when the committee decides to move forward with the nomination, he said. A source familiar with Martin's nomination told Talking Points Memo at this time, Martin doesn't have the votes to be approved.
- [40:10]
Andy McCabe
Senator Alex Padilla similarly told Talking Points Memo in an emailed statement that he stands with fellow Senate Democrats in urging Grassley to hold a hearing on Martin's nomination. The American people deserve transparency on Ed Martin's nomination to be the next U.S. attorney for D.C. his previous comments in support of the big Lie, an association with January 6th insurrectionists, have raised serious concerns and make it necessary to more closely examine his qualifications for one of the country's top law enforcement roles, Padilla told Talking Points Memo, quote, I stand with my fellow Senate Judiciary Committee Democrats in continuing to call on Chairman Grassley to immediately hold a hearing on Ed Martin's nomination.
- [40:53]
Alison Gill
Yep. So we'll see where that goes. But there was a lot of Ed Martin news this week. Yes.
- [40:59]
Andy McCabe
What are we going to do if he falls apart here?
- [41:02]
Alison Gill
Oh, I'm sure the next person will be just as chock full of stories.
- [41:06]
Andy McCabe
That's true.
- [41:07]
Alison Gill
So another story includes this one from the from the Times that Ed Martin contacted the New England Journal of Medicine, considered the world's most prestigious medical journal, with questions that suggested, without evidence, that the journal was biased against certain views and influenced by external pressures. He was super mad because he wanted to know why white people weren't included in the sickle cell study. I'm just kidding. That's not what I added that myself.
- [41:33]
Andy McCabe
Totally went for that. I was like, wow, this guy is amazing.
- [41:39]
Alison Gill
He wants to know why women weren't included in the prostate study. Now Dr. Eric Rubin, the editor in chief of NE, the New England Journal of Medicine, NEJM described a letter as vaguely threatening in an interview with the New York Times. At least three other journals have received similar letters from Martin, a Republican activist serving as interim U.S. attorney in D.C. martin has been criticized for using his office to target opponents of the administration. So he's sending threatening letters to medical journals?
- [42:08]
Andy McCabe
You guys, that's not doing much about the crime situation in D.C. okay, so. And we also have this one from the post. Interim D.C. u.S. Attorney Ed Martin apologized this week for praising a pardoned January 6, 2021 Capitol riot defendant who supported Nazi ideology and photographed himself posing as Adolf Hitler Martin saying he didn't know about the man's extremist statements.
- [42:35]
Alison Gill
Okay, dude, have you seen this guy?
- [42:38]
Andy McCabe
Oh, yeah, he's a dead ringer with the hair and the mustache.
- [42:42]
Alison Gill
Got the mustache. And he's doing a Sieg Heil. And like, this is. He's got the whole thing, the side swept hair.
- [42:54]
Andy McCabe
Yeah. Kind of messed up a little bit on the side. If it wasn't so terrifying, you know, it'd be pretty impressive. Okay, so. So Martin says he didn't know about the man's extremist statements. But in videos and podcasts, Martin has defended the man since at least 2023, calling him a friend who was, quote, slurred and smeared by anti Semitism allegations. Now, the individual, Timothy Hale Cusinelli, 35 years old. He was one of the first Capitol riot defendants charged and one of the first to enter the building through a smashed window. Court filings outlined his history of alleged anti Semitic statements, posts, and affinity for Hitler. At the time, Martin was a conservative activist and a January six Stop the Steal fundraiser and organizer. He defended riot defendants in court and on his podcasts and through a nonprofit led by Hale Cusinelli's aunt. So he was actually on the payroll from this guy's relative, so. But he didn't know him, I guess.
- [44:01]
Alison Gill
Oh, he. That guy's a Nazi. Are you sure?
- [44:05]
Andy McCabe
I thought he looked familiar.
- [44:07]
Alison Gill
Are you sure? I thought he looked familiar. I couldn't place it in a ditch covered on fire. Right.
- [44:15]
Andy McCabe
The tiny little mustache. Where have I seen that before?
- [44:20]
Alison Gill
Yeah, and he's been. Ed Martin's been erasing thousands of hours of podcasts from the Internet to try to. Oh, yeah, hide all of his Nazi stuff. This one's from CBS. Nearly 100 former employees and prosecutors from the U.S. attorney's office in D.C. have signed a memo opposing Trump's nomination. The memo is the latest efforts by critics of Ed Martin to stop his Senate confirmation for the permanent role which is among the most powerful federal prosecutor positions in the country. The letter was signed by a group of former prosecutors who served in the D.C. u.S. Attorney's office. Across seven decades, 100 prosecutors from the the USA ODC. Across seven decades, under administrations ranging from LBJ to Joe Biden, quote, there is a time when we are all called to stand for the full and fair administration of justice and rule of law. For those of us who have served in the office of the United States Attorney and still have a breath, that time is now. And the message we speak is reject, outright and completely, the proposed nominee. Whether our message is futile or not, it is an expression of our conscience and a matter of principle that we deliver with all of the strength that we can muster. Like, I can't think of any more powerful way to say no.
- [45:39]
Andy McCabe
Yeah, they, they're obviously, you know, disgusted by the idea that this guy would be leading the office that they used to serve in. So. And they should be because it's, it's a, it's disgusting.
- [45:52]
Alison Gill
Yeah. It really is. All right. We got a few more stories. We're going to do a quick lightning round and then get to listener questions. If you have a question you want to submit to Andy and me, you can do that by clicking on the link in the show notes and filling out the form. And we're going to do all of that after this last quick break. Stick around. We'll be right back. Foreign.
- [46:16]
Andy McCabe
Welcome back. Okay, time for the lightning round before we get to listener questions.
- [46:21]
Alison Gill
Yes. All right, let's do this. First up, from CBS, CBS News has obtained a list of 365 federal grant programs that were halted this week by Trump's Justice Department, disrupting programs to help victims of hate crime and sex trafficking, children who've suffered violence and refugees. The department also paused programs aimed at reducing school shootings, efforts to combat domestic terror, and an Emmett Till Cold case initiative in the Southeast. At least some of the grants were halted in memos sent Tuesday to a nonprofit organization, to multiple nonprofits, actually, by the Justice Department. The memo alerted program operators that the projects no longer effectuate Justice Department priority. The cancellation of the federal grants caused disruption at some of the nonprofit programs, and that's according to organization leaders who spoke with cbs. The head of a nonprofit that helps youth crime victims in Oakland, California, called the funding freeze a devastating blow.
- [47:20]
Andy McCabe
I'm sure it is. Okay. And from the post. The new head of the Justice Department's civil Rights division is dramatically reshaping the office to propel President Donald Trump's social agenda, prompting the departure of about half of the division's lawyers in recent weeks, according to people familiar with the situation and public statements from top officials. As we discussed a while ago when she was nominated. Since being sworn in this month, civil rights Director Harmeet Dhillon has redirected her staff to focus on combating antisemitism, the participation of transgender athletes in women's sports, and what Trump and his allies have described as anti Christian bias. And the Democrats woke ideology, the division changed mission statements across its sections to focus less on racial discrimination and more on fighting diversity initiatives. And department officials reassigned more than a dozen career staffers, including section chiefs overseeing police brutality, disability and voting rights cases to areas outside their legal expertise. Now, the changes under Dillon, who's a longtime Republican activist, coincide with a second White House offer to federal workers that allows them to resign from their positions and be paid through September. That's the infamous fork in the road email. The deadline for that offer is late Monday evening, and civil rights employees have been submitting their resignations en masse as the deadline nears, said people familiar with the division who spoke on the condition of anonymity because of the sensitivity of the matter.
- [48:56]
Alison Gill
Yeah, we talked about this when she was nominated, that she's going to gut the Civil Rights Division and make it about the civil rights of white Christian men.
- [49:04]
Andy McCabe
Yeah, basically. Let's remember, Civil Rights Division was created by Congress as a part of the Civil Rights Act. So it was created for the purpose of addressing racial discrimination in this country and the. The horrible effects of Jim Crow laws across the South. But no more. No more of that.
- [49:24]
Alison Gill
She's redefining racial discrimination as racial discrimination against white men, I suppose.
- [49:30]
Andy McCabe
Yeah.
- [49:30]
Alison Gill
Yeah. Next up from Politico, Justice Ketanji Brown. Jackson forcefully condemned attacks by President Trump and his allies on judges who have blocked Trump administration policies, warning Thursday that the increasingly hostile rhetoric poses a dire threat to the country's political fabric. Quote, the attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity. That's what she told a judges conference in Puerto Rico, went on to say, quote, the threats and harassment are attacks on our democracy, on our system of government, and they ultimately risk undermining our Constitution and rule of law. Though she didn't mention Trump by name, she didn't really need to. Jackson said she was addressing, quote, the elephant in the room. That's a clear reference to the belligerent language and calls for impeachment that Trump and his advisors have lobbed. Federal judges who rule against his agenda. Jackson urged her judicial colleagues to show raw courage to dispense justice without fear of the results. She said, quote, I urge you to keep going, keep doing what is right for our country. And I do believe that history will vindicate your service. So that's pretty impressive and unusual for a sitting Supreme Court justice to make such strong remarks.
- [50:45]
Andy McCabe
Yeah, totally. And I think she's right. History will vindicate your service. If there are any judges out there listening, I concur.
- [50:53]
Alison Gill
All right, time for some listener questions again. If you have a question, you can click on the link in the show. Notes. What do we have this week, Andy?
- [50:59]
Andy McCabe
All right, so our first one comes From Ian. Elbows up. From Canada. Yep. He says, as a Canadian, I've become fascinated with your government structure, with the three branches.
- [51:11]
Alison Gill
What do you mean? How it's supposed to be.
- [51:14]
Andy McCabe
I love how he describes. It's like it's got the three branches. Like, it's like. Actually, he's, like, envisioning it as a tree, which is awesome. Your podcast has given me pretty good insight into how they function. Okay, note there, Ian. Pretty good insight.
- [51:27]
Alison Gill
Thank you.
- [51:27]
Andy McCabe
Not like great, but. Okay, I'll take it. I'll take pretty good insight. Okay. My question is, 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?
- [51:46]
Alison Gill
Ah, elbows up, Ian. He has. Yes, he has. And one of those things we're following here on the podcast, which is Judge Boseberg's looking at. Looking at criminal contempt for the executive branch, ignoring the judicial branch orders to turn the planes around. Right now that's, I guess, on pause Briefly, as the D.C. circuit got a bad ruling. I think that that paused this, but we'll. We'll continue to cover it. But he's also pretty much kneecapped Congress as well in that continuing resolution, for example, the one that was where Schumer and 10 other Democrats voted for cloture, and it got past the filibuster, and they passed a continuing resolution to fund the government to September in that bill. Trump has a lot of authority to move money around that's been appropriated by Congress if he doesn't like where it's going, which is totally stripping Congress of its main job. Right, yeah. Controlling the purse strings.
- [52:51]
Andy McCabe
So that's a great question, because the basic answer, Ian, is we don't know. No one knows. We've never seen this before. Typically when. When the president gets crosswise with Congress, Congress has the ability to kind of push back. They can. They can cut off funding. They have the power of the purse.
- [53:10]
Alison Gill
Right.
- [53:11]
Andy McCabe
All the money, the allocation of funds comes from Congress. So they can defund things and they can write laws to curb the president's authority. For instance, in the Obama administration, when they were. Were thinking about bringing the. Get some of the Gitmo detainees to the United States to face trial, criminal trials. Many Republicans on the Hill didn't like the idea of that. They didn't like the idea of putting terrorists in criminal courts. And so they wrote a law prohibiting the expenditure of any government funds to bring those detainees to the United States or to put them on trial or to house them in prisons here. So that made it effectively impossible for the president or any president to do that. That. So they could do things like that. But this Congress is entirely lives in fear of Donald Trump. They are not exercising their authority to push back because they're afraid of what he'll do to him. Now, fortunately, the judiciary is, as AG said, they're standing up. They're issuing orders ordering the administration to do things. And when it seems that the administration is not following those orders, like the one in Joseph Judge Boasberg's case, he's really holding them accountable. He's now, even though the order itself was thrown out by the Supreme Court, the violation of the order is still relevant, and he is really putting them through their paces in a potential contempt proceeding. So, you know, it's not the greatest answer, but we are using the system that we have, and I think it's getting pushed beyond a point we've ever seen before. So we're all going to find out what happens when it reaches the end of the road.
- [54:52]
Alison Gill
Yeah, it's going to be. That's what we're butting up against here in the United States. That's what we refer to as a constitutional crisis.
- [55:00]
Andy McCabe
Yes. All right, time for one more.
- [55:04]
Alison Gill
Yeah, I think we have time for one more.
- [55:05]
Andy McCabe
All right, quick one here. This comes from Lee. Lee says, I love this podcast and I love listening to both of you. You have, you both have great voices, even when you have a cold.
- [55:15]
Alison Gill
So.
- [55:16]
Andy McCabe
Thank you, Lee. So still have. Still suffering with this thing. My question is this. You've both mentioned several times how the DOJ no longer has great lawyers. I don't know that we said it that clearly, but a lot of lawyers, a lot of great lawyers have left.
- [55:28]
Alison Gill
They're running out of lawyer. They're running out of numbers of lawyers. For sure.
- [55:32]
Andy McCabe
Yeah, for sure, for sure. So Lee goes on to say, either they've been forced out or have quit because they won't bend the knee to Trump. So the stuff they've been submitting in current course, they current course court cases has been a little less than stellar. So here's the question. Could Trump have the DOJ use the lawyers who have pledged him billions in free services? These would be lawyers from some of the biggest and most prestigious law firms, which might be. Might be better for him in court than the DOJ lawyers he has now. It's an interesting question. What Lee's referring to is these agreements that Trump has coerced major law firms into signing in which they pledged to provide hundreds of millions of dollars to the administration and free legal services. Could those lawyers essentially step in and start representing the United States government in court? That's a little bit tricky.
- [56:29]
Alison Gill
In order, if he appointed them to the doj, I suppose he could.
- [56:34]
Andy McCabe
He'd have to hire them or appoint them as special government employees that have to make.
- [56:38]
Alison Gill
Wait, you mean like a special prosecutor that he argued against the legality of?
- [56:42]
Andy McCabe
Exactly. Or a special prosecutor. You'd have to make them special prosecutors.
- [56:46]
Alison Gill
Yeah, but Cannon said he could create a little office in the Department of Justice and then fill it with these private attorneys. Right.
- [56:55]
Andy McCabe
He could. There'd have to be some sort of formal arrangement to enable these private lawyers to actually wield the authority of the Department of Justice. It's not like you could just hire them, hey, represent me in this immigration case doesn't work that way.
- [57:10]
Alison Gill
They have to work for the doj.
- [57:12]
Andy McCabe
They'd have to work for the DOJ in some official capacity. Yeah, that's hard to imagine that happening. But who knows? I would never have imagined that the President of the United States would essentially extort the legal profession into doing his bidding. And that's what we have now. So.
- [57:31]
Alison Gill
Yeah, and they actually have been called up in a recent order from the Attorney General, Pam Bondi, on her, you know, stepping up policing, where they're gonna be helping give more federal, like, you know, war toys, I guess, like military equipment to local and state law enforcement agencies. And they have said, you can use some of our pro bono legal services. If you get in trouble and you're a law enforcement officer, we'll have them represent you as local law enforcement, which they're doing. Which they can do, and they've said they will do.
- [58:07]
Andy McCabe
They definitely can do that, because that would be representing the. The individual, not the federal government. Right, right.
- [58:15]
Alison Gill
And they're not federal cops either.
- [58:17]
Andy McCabe
Yes. Yeah. You could even do it for federal agents who need representation in, like, a disciplinary hearing or a use of force charge or something like that. That's still. That's something that you could do with pro bono legal work. Anyway, good questions this week.
- [58:36]
Alison Gill
Right. But I will say this, that. That Pam Bondi is not going to charge any federal cops with excessive use of force in the first place.
- [58:43]
Andy McCabe
That's a good point.
- [58:44]
Alison Gill
So. So. But yeah, that's. That's an interesting thought because you remember how Judge Cannon was like. Like, look, you can't just make a special counsel. A special counsel. Now, if you had had an office that you hired him into. And there was like that let 5 seconds pass and then name him in charge of something. That's totally cool. She's wrong. But the Trump administration could stay within, within its own wrongness and create an office at the Department of Justice for Legal Services and hire a bunch of these private attorneys, maybe on an ad hoc basis or a contracted basis, to be DOJ employees. And then they could argue on behalf of the DoJ, on behalf of the government in court as special prosecutors hired to do a specific job. But they would have to hire them, I think, anyway. Yeah, really cool questions. Very, very thoughtful. Thank you for sending them in. And again, that link is in the show notes to, to send us questions. What do you think, Andy?
- [59:42]
Andy McCabe
I think we've rightly spent a lot of time following the Abrego Garcia case and the other associated immigration cases. I think people are, our listeners, I'm sure, are really dialed in on this. We're obviously focused on it. And I think that that's right because this is really the front line of the erosion of democracy. This is human beings being detained and thrown into horrible conditions without really any meaningful access to court. And then it violates the most fundamental ideas that this country was founded upon. And I'm, it's a little bit frustrating to me that people aren't more outraged by this denial of due process issue and not realizing that, like, if we can do it to Garcia or, or any of these, any of these folks that have been caught up, they can happen to you. It can happen to any one of us. This is a slippery slope that leads.
- [60:46]
Alison Gill
Although recent polls show a majority of Americans disagree with removal from the United States without due process at over 50, 54, I think, yeah, I think it's.
- [60:55]
Andy McCabe
Good to just keep talking about it because it's like helping people make that connection. Like, this is wrong. And it's not just wrong to these people, it's definitely wrong to them. But like, this is a, this is seeing into the future as to what can happen to any of us in a country that is losing its commitment to democracy.
- [61:15]
Alison Gill
Yeah. And we have to also keep doing this to keep pushing back on the propaganda because, for example, Department of Justice and right wing folks are now releasing video of Abrego Garcia arrests and, and talking about his domestic violence issues and things like that. And people are kind of breaking down how that should be, you know, if that means that he deserves to go to prison for life in a gulag. But the point that everybody needs to first think of when somebody shares, like CNN Shares a video of a. Of a. A Brago Garcia and an interaction with the police. The first thing that you need to remember is, oh, well, that guy needs due process, because if he did commit a crime, if he's guilty of domestic violence, if he's guilty of some. Any crime, he needs to be indicted by a grand jury for that crime, tried for those crimes, and incarcerated to pay for those crimes. Here in the United States.
- [62:12]
Andy McCabe
You commit crimes here, you should pay for them here.
- [62:15]
Alison Gill
Every single person in the United States is entitled to due process, whether you're a citizen or not. Whether you're visiting from Germany. That's right. If somebody flies in from Germany and stabs your mom, do you want them, you know, to be arrested and tried and put in jail here in the United States? Yes, you do. That is called due process. Everyone deserves it, whether you're a good guy or a bad guy. Yeah, that's the way of it.
- [62:40]
Andy McCabe
And this, like, flood of propaganda really, about, like, oh, look what a bad guy this dude is. It's not relevant. That's not the issue.
- [62:52]
Alison Gill
It's not. It's reminiscent of what happened to George Floyd.
- [62:55]
Andy McCabe
Yeah.
- [62:56]
Alison Gill
When everyone's like, yeah, but he was a. He did drugs and he was a bad guy, or he was a criminal, though, so he deserves to have a knee on his neck and be murdered.
- [63:04]
Andy McCabe
Right.
- [63:05]
Alison Gill
That's not due process.
- [63:07]
Andy McCabe
That's right. That's right.
- [63:09]
Alison Gill
And he wasn't, by the way. But, you know, that's. It's the same kind of attacking that, that, That I have come to expect.
- [63:19]
Andy McCabe
Yeah. And so that's kind of. This is what you and I talked about when we thought about transitioning this, this, this weekly gathering from following the Jack Smith cases to following the Department of Justice. Because as what happens in the Department of Justice, how they do their business, who they hire, who they fire, who's leading them, these are all really impactful decisions that ultimately affect many, many people, really, all of us, in a way. And so, yeah, we're going to be here every week talking about the ups and downs of what we see with justice.
- [63:53]
Alison Gill
Yeah. And it's. The Jack podcast was more fun, but I think that this one might be equally as important, at least.
- [64:02]
Andy McCabe
Yeah, for sure.
- [64:03]
Alison Gill
And I still am not used to seeing the government in court filings and have that be the bad guy. Like, I. I still haven't gotten there, because all of Jack Smith's arguments, The government. The government. All of Jack Smith was the government. The arguments were so good and they were so succinct. And within the law and they were reasonable and they made sense. And now when it's the government, you get this garbage like, well, those vague statements by someone I hardly know, coffee boy Marco Rubio, they don't count as a, as a deal with Bukele. That's, that doesn't count. It's now that's what the government is saying. And that I'm good. I still have whiplash from that.
- [64:39]
Andy McCabe
Yeah, I mean, you know, I, you know, I do. I was part of that, part of that team for 21 years. So seeing this is really dispiriting. But it's super important that we get this out there so that people can understand what's going on.
- [64:56]
Alison Gill
Yeah. So thanks for hanging in and thanks for all your kind notes. We get a ton of kind notes saying thank you for making me able to, you know, giving me the knowledge to be able to discuss this and explain it to others because I think it's important that we talk to as many people as we can about this. So thank you for those kind notes. We really appreciate it. We're going to be back in your ears next week. We're going to have a lot to talk about as far as the discovery or lack thereof goes in the Abrea Garcia case next week for sure, for sure. We'll give you an update on everything else, including Ed Martin. See if he gets a hearing or not. And until then, please have a, have a great week and we'll see you then. I've been Allison Gill and I'm Andy McCabe. 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 mswmedia.com.